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Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
HEALTH CARE REIT, INC.
(HEREINAFTER CALLED THE "CORPORATION")
AS OF OCTOBER 21, 1997
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices in Toledo,
Ohio, and at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine.
SECTION 3. CORPORATE SEAL. The corporate seal of the Corporation shall be
in the form of a circle and shall state within the circle, "Health Care REIT,
Inc., Toledo, Ohio" and the words "Corporate Seal" in the middle of the seal.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held in the City of
Toledo, Ohio, or at such place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors and stated
in the notice of the meeting or in a duly executed waiver of notice
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thereof.
SECTION 2. ANNUAL MEETINGS. Annual Meetings of Stockholders shall be held
on such date and at such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which meetings
the stockholders shall elect a Board of Directors and transact such other
business as may properly be brought before the meeting. Written notice of the
Annual Meeting stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less than twenty nor
more than sixty days before the date of the meeting. At each Annual Meeting,
the Chief Executive Officer or any other person appointed by the Board of
Directors in his absence shall report on the business and operations of the
Corporation and present a statement of the financial condition of the
Corporation as of the close of the fiscal year next preceding such Annual
Meeting. Any appropriate business may be conducted at an Annual Meeting.
SECTION 3. QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such a quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment
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a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
SECTION 4. VOTING. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in his discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
SECTION 5. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder for any purpose germane to the meeting
during ordinary business hours for a period of at least ten 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 list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
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SECTION 6. STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 5 of this Article II, or the books of the
Corporation, or entitled to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The Board of Directors shall
consist of not less than three (3) nor more than fifteen (15) members, the
exact number of which shall be fixed from time to time by affirmative vote of a
majority of the entire Board of Directors, and such exact number shall be nine
(9) until otherwise determined by resolution adopted by affirmative vote of a
majority of the entire Board of Directors.
SECTION 2. INDEPENDENT DIRECTORS. At least two of the directors shall be
Independent Directors as hereinafter defined. Among other duties specified
herein or by resolution of the Board of Directors, the Independent Directors
shall review policies of the Board of Directors on investments and borrowing
and shall monitor the administrative procedures, investment operations and
performance of the Corporation to assure that such policies are carried out.
The Independent Directors shall fulfill their review and monitoring function by
reviewing, monitoring and making recommendations to the Board of Directors with
respect to the matters specified as responsibilities or duties of the Board of
Directors in Articles VII and VIII hereof.
SECTION 3. CLASSIFICATION OF THE BOARD. The Board of Directors shall be
divided into three classes, to be known as Class I, Class II and Class III,
respectively, of at least one (1)
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director each, with each class to be as nearly equal in number as the then
total number of directors constituting the entire Board of Directors permits,
with the term of office of one class expiring in each year. At each Annual
Meeting of Stockholders, the successors to the class of directors whose term
shall then expire shall be elected to hold office for a term expiring at the
third succeeding Annual Meeting, or until their successors are elected and
qualified.
SECTION 4. ELECTION OF DIRECTORS. Directors shall be elected at the Annual
Meeting of Stockholders, but when the Annual Meeting is not held or directors
are not elected thereat, they may be elected at a Special Meeting called and
held for that purpose. Such election shall be by ballot whenever requested by
any stockholder entitled to vote at such election; but, unless a request is
made, the election may be conducted in any manner approved at such meeting. At
each meeting of stockholders for the election of directors the persons
receiving the greatest number of votes shall be directors. In order to serve as
a director of the Corporation, persons need to be the beneficial owner of at
least 100 shares of the Corporation's Common Stock.
SECTION 5. NOMINATION OF DIRECTORS. Nominations for the election of
directors may be made by the Board of Directors or by any stockholder entitled
to vote for the election of directors. Any nominations by stockholders shall be
made by notice in writing, delivered or mailed by first class United States
mail, postage prepaid, to the Secretary of the Corporation not less than
fourteen (14) days nor more than ninety (90) days prior to any meeting of the
stockholders called for the election of directors. Such notice of nomination
shall set forth (i) the name, age, business address and, if known, residence
address of each nominee proposed in such notice, (ii) the principal occupation
or employment of each such nominee, and (iii) the number of shares of stock of
the Corporation that are beneficially owned by each such nominee. The
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Chairman of a meeting for election of directors may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
SECTION 6. VACANCIES. Any vacancies in the Board of Directors for any
reason, and any newly created directorships resulting from any increase in the
number of directors, may be filled by the Board of Directors, acting by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, provided, however, that an Independent Director
vacancy shall be filled by a majority of the Independent Directors then in
office or by a sole remaining Independent Director. Any directors so chosen
shall hold office until the next election of the class for which such directors
shall have been chosen and until their successors shall be elected and
qualified. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. No decrease in the number of
directors shall shorten the term of any incumbent director. A director may be
removed from office only for good cause upon the affirmative vote of the Board
of Directors or holders of at least a majority of the shares of capital stock
of the Corporation, issued, outstanding and entitled to vote. As used in this
section, good cause shall mean conviction of a felony by a court of competent
jurisdiction, or negligence or misconduct in the performance of a duty to the
Corporation in a matter of substantial importance to the Corporation.
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SECTION 7. DUTIES AND POWERS. The business of the Corporation shall be
managed by or under the direction of the Board of Directors, which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
SECTION 8. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. There shall be at least four (4) regular meetings each
year. Special meetings of the Board of Directors may be called by the
Chairman, if there be one, the President, the Secretary, or any three of the
directors. Notice thereof stating the place, date and hour of the meeting
shall be given to each director not less than three (3) days before the
meeting.
SECTION 9. QUORUM. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, a majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at all meetings of the Board of Directors, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
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SECTION 10. ACTIONS OF THE BOARD. Unless otherwise provided by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all the members of the Board of
Directors or committee, as the case may be, consent thereto in writing. Any
such writing or writings shall be filed with the minutes of proceedings of the
Board of Directors or committee.
SECTION 11. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 11 shall
constitute presence in person at such meeting.
SECTION 12. COMMITTEES. The Board of Directors may, by resolution passed
by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. All of the members of the Audit Committee of the Board of
Directors shall be Independent Directors, as hereinafter defined. Subject to
the foregoing, the Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of any alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not
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disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any absent or disqualified member. Any committee, to
the extent allowed by law, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation as specified in the resolution establishing such
committee. Each committee shall keep regular minutes or make reports to the
Board of Directors when required.
SECTION 13. COMPENSATION. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors and a stated
annual sum for service as director. Members of special or standing committees
may be allowed like compensation for such additional service. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Such services may include, but are not
limited to, service as an officer of the Corporation, legal or other
professional services, mortgage servicing, or services as an insurance broker,
transfer agent, or underwriter.
SECTION 14. INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known
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to the Board of Directors or the committee, and the Board of Directors or
committee in good faith determines that the contract or transaction is fair and
reasonable to stockholders of the Corporation and authorizes or ratifies the
contract or transaction by the affirmative votes of a majority of the members
of the entire Board of Directors or committee who do not have any interest in
such transaction, even though the disinterested directors or committee members
be less than a quorum; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, the contract or
transaction is specifically approved or ratified in good faith by vote of the
stockholders, and the contract or transaction is fair and reasonable as to the
Corporation and the stockholders as of the time it is approved or ratified by
the stockholders. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a Chairman of the Board of Directors, a
President, a Secretary and a Treasurer. The Board of Directors, in its
discretion, may also choose one or more Vice Presidents, Assistant Secretaries,
Assistant Treasurers and other officers. Any number of offices may be held by
the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers
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be directors of the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation
or removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, the President, or any
Vice President. Any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation, partnership, trust or other entity in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
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SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board
of Directors shall preside at all meetings of the stockholders and of the Board
of Directors. He shall be the Chief Executive Officer of the Corporation and
have general supervision of the business of the Corporation. He shall see that
all orders and resolutions of the Board of Directors are carried into effect
and shall possess the power to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as from time to time may be assigned
to him by these By-Laws or by the Board of Directors.
SECTION 5. PRESIDENT. The President shall, subject to the control of the
Board of Directors and the Chairman of the Board of Directors, have general
supervision of the operations of the Corporation and shall see that all orders
and resolutions of the Board of Directors and the Chairman of the Board are
carried into effect. In the absence or disability of the Chairman of the Board
of Directors, or if there be none, the President shall preside at all meetings
of the stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, the President shall be the Chief Executive Officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by these
By-Laws or by the Board of Directors.
SECTION 6. VICE-PRESIDENTS. In the absence or disability of the President
and at the request of the Chairman of the Board of Directors, the
Vice-President or the Vice-Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the
President, and when so acting, shall have all the powers of and be
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subject to all the restrictions upon the President. Each Vice-President shall
perform such other duties and have such other powers as the Board of Directors
or the Chairman of the Board of Directors from time to time may prescribe. If
there be no Vice-President, the Board of Directors shall designate the officer
of the Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, 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.
SECTION 7. SECRETARY. The Secretary shall attend all meetings of the Board
of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose. The Secretary shall
also perform like duties for the standing committees when requested. The
Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and meetings of the Board of Directors, and shall perform such
other duties as may be prescribed by the Board of Directors or Chairman of the
Board of Directors, under whose supervision he shall be. If the Secretary shall
be unable or shall refuse to cause to be given notice of all meetings of the
stockholders and meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors or the Chairman of the
Board of Directors may choose another officer to cause such notice to be given.
The Secretary shall have custody of the seal of the Corporation, if any, and
the Secretary or any Assistant Secretary, if there be one, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation, if any, and to attest the
affixing by his signature. The Secretary
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shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
SECTION 8. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities 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. 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 Chairman of the Board of Directors and
the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all his 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 office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
SECTION 9. ASSISTANT SECRETARIES. Except as may be otherwise provided in
these By-Laws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the
Board of Directors, the Chairman of the Board of Directors, the President, any
Vice-President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the
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restrictions upon the Secretary.
SECTION 10. ASSISTANT TREASURERS. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President and Vice-President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of his disability or
refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant 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 office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
SECTION 11. OTHER OFFICERS. Such other officers as the Board of Directors
may choose shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
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ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
(i) by the Chairman of the Board of Directors, the President or a
Vice-President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore 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 of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or
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to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
SECTION 5. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than twenty
days before the date of such meeting of stockholders, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and shall be entitled
to hold liable for calls and assessments a person
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registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not the Corporation shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
RESTRICTIONS ON ISSUANCE AND TRANSFER OF STOCK
SECTION 1. LIMIT ON STOCK OWNERSHIP. No person may own more than 9.8% of
the outstanding shares of the Corporation's Common Stock (the "Limit"), and no
Securities, as defined herein, may be issued or transferred to any person if,
following such issuance or transfer, such person's ownership of Common Stock
would exceed the Limit. For purposes of computing the Limit, Convertible
Securities, as defined herein, owned by such person shall be treated as if the
Convertible Securities had been converted into shares of Common Stock.
SECTION 2. TRANSFERS IN EXCESS OF THE LIMIT. If any Securities in excess
of the Limit are issued or transferred to any person in violation of Section 1
hereof (the "Excess Securities"), such issuance or transfer shall be valid only
with respect to such amount of Securities as does not result in a violation of
Section 1 hereof, and such issuance or transfer shall be null and void with
respect to such Excess Securities. If the last clause of the foregoing sentence
is determined to be invalid by virtue of any legal decision, statute, rule or
regulation, such person shall be conclusively deemed to have acted as an agent
on behalf of the Corporation in acquiring the Excess Securities to hold such
Excess Securities on behalf of the Corporation. As the equivalent of treasury
securities for such purposes, the Excess Securities shall not be
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entitled to any voting rights, shall not be considered to be outstanding for
quorum or voting purposes, and shall not be entitled to receive dividends,
interest or any other distribution with respect to such securities. Any person
who receives dividends, interest or any other distribution in respect of Excess
Securities shall hold the same as agent for the Corporation and for the
transferee of the Excess Securities following a permitted transfer.
SECTION 3. TRANSFERS OF EXCESS SECURITIES. Notwithstanding anything herein
to the contrary, any holder of Excess Securities may transfer the same
(together with any distributions thereon) to any person who, following such
transfer, would not own shares of Common Stock in excess of the Limit. Upon
such a permitted transfer, the Corporation shall pay or distribute to the
transferee any distributions on the Excess Securities not previously paid or
distributed.
SECTION 4. DEFINITIONS. For purposes of this Article:
(a) "Person" includes an individual, corporation, partnership,
association, joint stock company, trust, unincorporated association or
other entity.
(b) "Convertible Securities" means any securities of the Corporation
that are convertible into, or afford rights to purchase, shares of Common
Stock.
(c) "Securities" means shares of Common Stock and Convertible
Securities.
(d) "Ownership" means beneficial ownership determined on the basis of
the beneficial ownership rules applicable under the Securities Exchange
Act of 1934, as amended, or such other basis as the Board of Directors
reasonably determines to be appropriate to effectuate the purposes hereof.
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SECTION 5. ADDITIONAL RESTRICTIONS. Notwithstanding anything herein to the
contrary, the Corporation and its transfer agent may refuse to transfer any
shares, passing either by voluntary transfer, by operation of law, or under the
last will and testament of any stockholder, if such transfer would or might, in
the opinion of the Board of Directors or counsel to the Corporation, disqualify
the Corporation as a Real Estate Investment Trust under the Internal Revenue
Code. Nothing herein contained shall limit the ability of the Corporation to
impose or to seek judicial or other imposition of additional restrictions if
deemed necessary or advisable to preserve the Corporation's tax status as a
qualified Real Estate Investment Trust.
SECTION 6. CERTIFICATE LEGEND. All certificates representing Securities of
the Corporation within the meaning of this Section shall, if deemed necessary
by the Board of Directors, be marked with a legend sufficient under the laws of
the State of Delaware to provide a purchaser of such Securities with notice of
the restrictions on transfer under this Article VI.
SECTION 7. INVALIDITY OF PROVISIONS. If any provision of this Article or
any application of any such provision is determined to be invalid by any
federal or state court having jurisdiction over the issue, the validity of the
remaining provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply with the
determination of such court.
SECTION 8. NEW YORK STOCK EXCHANGE TRANSACTIONS. Nothing in this Article
VI, including but not limited to Section 5, shall preclude the settlement of
any transactions entered into through the facilities of the New York Stock
Exchange or any other stock exchange. The fact that settlement of any
transaction takes place shall not, however, negate the effect of any other
provision of this Article VI, and any transferee, and the shares of capital
stock transferred
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to such transferee in such a transaction, shall be subject to all of the
provisions and limitations in this Article VI.
ARTICLE VII
INVESTMENT POLICY AND RESTRICTIONS
SECTION 1. INVESTMENT OF FUNDS. It shall be the policy of the Board of
Directors to invest the major portion of the funds of the Corporation
(excluding funds used for compensating deposit balances with lending banks and
for working capital purposes) in entire or participating interests in real
property, mortgage loans, and other Real Estate Assets, as hereinafter defined,
and loans arising out of the development or ownership of real estate and Real
Estate Assets.
SECTION 2. INVESTMENT POLICY. The prospectus relating to each offering of
securities of the Corporation shall contain a statement in reasonable detail of
the investment policies and objectives of the Corporation and an explanation of
the borrowing policies of the Corporation. The Board of Directors shall review
the investment policies of the Corporation with sufficient frequency and at
least annually to determine that the policies being followed by the Corporation
at any time are in the best interests of its stockholders. Each such
determination and the basis therefor shall be set forth in the minutes of the
Board of Directors.
SECTION 3. LIMITATIONS ON TRANSACTIONS. The Corporation shall not:
(a) Invest more than 10% of its total assets in Unimproved Real
Property, as hereinafter defined, or mortgage loans on Unimproved Real
Property.
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(b) Invest in commodities or commodity future contracts. Such
limitation is not intended to apply to interest rate, financial
instrument, or market index futures or options, when used solely for
hedging purposes.
(c) Invest in junior mortgage loans unless, by appraisal or other
method that the Board of Directors select, (i) the capital invested in any
such mortgage loan is adequately secured on the basis of the equity of the
borrower in the property underlying such investment and the ability of the
borrower to repay the mortgage loan, or (ii) such mortgage loan of the
Corporation is a financing device entered into by the Corporation to
establish the priority of its capital investment over the capital of
others who are investing with the Corporation in a real estate project.
The Board of Directors shall determine that any such junior mortgage loan
is not and may not be made subordinate to a mortgage held by a director of
the Corporation.
(d) Issue debt securities unless the historical debt service coverage
(in the most recently completed fiscal year) as adjusted for known changes
is sufficient to properly service the higher level of debt.
(e) Have aggregate borrowings, secured and unsecured, that are
unreasonable in relation to the Net Assets of the Corporation, as
hereinafter defined. Borrowings of the Corporation shall be reviewed by
the Board of Directors at least quarterly. The maximum amount of such
borrowings in relation to the Net Assets shall, in the absence of a
satisfactory showing that a higher level of borrowing is appropriate, not
exceed 400%. Any excess in borrowing over such 400% level shall be
approved by the Board of Directors and disclosed to stockholders in the
next quarterly report of the Corporation along with justification for such
excess.
(f) Pay more than the fair market value, as determined by the Board
of Directors, for any real property acquired by the Corporation unless
specifically approved by the Board of Directors. In cases in which the
Board of Directors so specify, such fair market value shall be determined
by a qualified independent real estate appraiser selected by the Board of
Directors.
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SECTION 4. PERMISSIBLE REMEDIES. Notwithstanding any provision in these
ByLaws to the contrary, when an obligor to the Corporation is in default under
the terms of any obligation to the Corporation, the Board of Directors shall
have the power to pursue any remedies permitted by law that, in its sole
discretion, are in the interests of the Corporation, and the Board of Directors
shall have the power to enter into any necessary investment, commitment, or
obligation of the Corporation resulting from the pursuit of such remedies or
necessary or desirable to dispose of property acquired in the pursuit of such
remedies.
SECTION 5. INCOME TAX STATUS. It shall be the policy of the Board of
Directors that the Corporation shall qualify as a Real Estate Investment Trust
under the Internal Revenue Code. Anything herein to the contrary
notwithstanding, however, the Board of Directors makes no commitment or
representation that the Corporation will qualify in any given year for the
dividends paid deduction permitted by the Internal Revenue Code and the rules
and regulations thereunder pertaining to the Real Estate Investment Trusts. The
failure of the Corporation to qualify as a Real Estate Investment Trust under
the Internal Revenue Code shall not render the directors or officers of the
Corporation liable to the stockholders or to any other person.
ARTICLE VIII
BUSINESS COMBINATIONS
SECTION 1. VOTE REQUIREMENT. In addition to any vote otherwise required by
law, the Certificate of Incorporation, or these By-Laws, a Business
Combination, as defined herein, shall require the affirmative vote of the
holders of at least seventy-five percent (75%) of the voting power of the then
outstanding shares of capital stock of the Corporation entitled to
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vote generally in the election of directors (the "Voting Stock"), voting
together as a single class.
SECTION 2. EXCEPTIONS. The provisions of Section 1 of this Article VIII
shall not apply to any Business Combination if:
(a) The Corporation is at the time of the consummation of the
Business Combination, and at all times throughout the preceding twelve
months has been, directly or indirectly, the beneficial owner of a
majority of each class of the outstanding Equity Securities, as defined
herein, of the Interested Stockholder, as defined herein, that is a party
to such transaction; or
(b) Such Business Combination has been approved by a majority of the
Board of Directors who, at the time such approval is given, were not
Affiliates, as defined herein, or nominees of the Interested Stockholder
and were either members of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder (the
"Continuing Directors") or were successors of Continuing Directors on the
recommendation of a majority of Continuing Directors then on the Board of
Directors; or
(c) Both of the following conditions have been met:
(i) The aggregate amount of the cash and the Fair Market Value,
as defined herein, of consideration other than cash to be received
per share by holders of Voting Stock in such Business Combination
shall be at least equal to the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid by the Interested Stockholder for any shares of Voting Stock
acquired by it (1) within the two-year period immediately prior to
the first public announcement of the proposal of the Business
Combination or (2) in the transaction in which it became an
Interested Stockholder, whichever is higher; and
(ii) The consideration to be received by holders of a particular
class of outstanding Voting Stock shall be in cash or in the same
form as the
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Interested Stockholder previously paid for shares of such Voting
Stock. If the Interested Stockholder paid for shares of any class of
Voting Stock with varying forms of consideration, the form of
consideration to be paid by the Interested Stockholder for such class
of Voting Stock shall be either cash or the form used to acquire the
largest number of shares of such class of Voting Stock previously
acquired by the Interested Stockholder.
SECTION 3. DEFINITIONS. For purposes of this Article VIII:
(a) A "Business Combination" shall mean:
(i) Any merger or consolidation of the Corporation with or into
(1) any Interested Stockholder (as hereinafter defined) or (2) any
other corporation or entity (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would
be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
(ii) Any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or an Affiliate of any Interested
Stockholder of substantially all assets of the Corporation; or
(iii) Any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) that has the effect, directly or indirectly,
of increasing the proportionate share of the outstanding shares of
any class of Equity Securities of the Corporation that is directly or
indirectly owned by any Interested Stockholder or any Affiliate of
any Interested Stockholder; or
(iv) The adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of an
Interested
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Stockholder or any Affiliate of any Interested Stockholder.
(b) "Interested Stockholder" shall mean any individual, firm,
corporation (other than the Corporation) or other entity which, as of the
record date for the determination of stockholders entitled to notice of
and to vote on any of the transactions described in clauses (i) through
(iv) of subsection (a) of this Section 3, or immediately prior to the
consummation of any such transaction, is the beneficial owner of five
percent (5%) or more of the outstanding Voting Stock.
(c) "Beneficial Owner" or "beneficially owned" shall have the meaning
set forth in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Board of Directors of the Corporation
shall have the power and duty to determine for purposes of this Article,
on the basis of information then known to it, whether any person is a
beneficial owner of 5% or more of the outstanding Voting Stock.
(d) "Affiliate" or "Associate" shall have the meanings set forth in
Rule 405 under the Securities Act of 1933, as amended.
(e) "Fair Market Value" shall mean the fair market value of such
property on the date in question as determined by the Board of Directors
in good faith.
(f) "Equity Securities" shall have the meaning specified in Rule
13a11-1 under the Exchange Act.
ARTICLE IX
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may
be paid in cash, in property, or in shares of the capital stock. Before payment
of any dividend, there may be set aside out of any funds
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of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, deems proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be a
calendar year unless otherwise fixed by resolution of the Board of Directors.
SECTION 4. BOOKS AND RECORDS. The books and records of the Corporation may
be kept in Toledo, Ohio (subject to any provision of law or the Certificate of
Incorporation), or within or without the State of Delaware, at such place or
places as may be designated from time to time by the Board of Directors of the
Corporation.
SECTION 5. NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Corporation, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, telex or cable. Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after
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the time stated therein, shall be deemed equivalent thereto.
ARTICLE X
INDEMNIFICATION
To the extent permitted by The General Corporation Law of Delaware as the
same exists or may hereafter be enacted or amended, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
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, trustee, partner
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding.
ARTICLE XI
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the stockholders or by the Board of
Directors, provided, however, that notice of such alteration, amendment, repeal
or adoption of new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors as the case may be. Any amendment by the
Board of Directors must be approved by a majority of the entire Board of
Directors then in office, provided that the approval of a majority of the
entire number
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of Independent Directors then in office shall be required as well if the
proposed amendment affects any of the duties or responsibilities of Independent
Directors specified in these By-Laws. All such amendments by the stockholders
must be approved by holders of capital stock having a majority of the voting
power of all outstanding capital stock of the Corporation voting together as a
single class, provided that any amendment by the stockholders to Article III,
Sections 1, 3 and 6, of these By-Laws (concerning the number of directors,
classification of the Board of Directors and vacancies in the Board of
Directors, including removal of directors), Article VI of these By-Laws
(concerning restrictions on issuance and transfer of stock) or Article VIII of
these By-Laws (concerning business combinations) must be approved by holders of
capital stock having 75% of the voting power of all outstanding capital stock
of the Corporation, voting together as a single class.
ARTICLE XII
DEFINITIONS
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following meanings where the context admits:
(a) "Average Invested Assets" for any period shall mean the average
of the aggregate book value of the assets of the Corporation invested,
directly or indirectly, in (i) Real Estate Assets and (ii) equity
interests in and loans secured by real estate, before allowances for
doubtful amounts or allowances to reduce certain leases to option prices
or other similar non-cash allowances; as determined by generally accepted
accounting principles computed by taking the average of such values at the
end of each month during such period.
(b) "Entire Board of Directors" shall mean the total
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number of directors that the Corporation would have if there were no
vacancies.
(c) "Independent Director" means a director of the Corporation who is
not (i) a person directly or indirectly owning, controlling, or holding
with power to vote five percent or more of the outstanding voting
securities of the Corporation; (ii) an officer or employee of the
Corporation; (iii) a person who either individually or as a member of an
organization acts as an advisor, consultant, legal counsel to the
Corporation or provides similar types of services to the Corporation and
receives compensation on a continuing basis from the Corporation in
addition to Director's fees; (v) an affiliate of any person described in
(i), (ii), or (iii) related to the Corporation in any other way that, in
the view of the Board of Directors, would interfere with the exercise of
independent judgment.
(d) "Net Assets" means the total assets (other than intangibles) at
book value as determined by generally accepted accounting principles
before deducting allowances for doubtful amounts or other non-cash
allowances less total liabilities, calculated at least quarterly on a
basis consistently applied. Prepaid and deferred expenses are not
considered intangibles for the purpose of this definition.
(e) "Net Income" for any period shall mean total revenues applicable
to such period, less the expenses applicable to such period other than
additions to allowances for doubtful amounts or allowances to reduce
certain leases to option prices or other similar non-cash allowances; as
determined by generally accepted accounting principles.
(f) "Real Estate Assets" shall mean (i) real property (including
interests in real property and interests in mortgages on real property),
(ii) shares (or transferable certificates of beneficial interest) in other
real estate investment trusts, and (iii) any other property or interest,
which meet the requirements as expressed from time to time in Section
856(c)(6)(B) of the Internal Revenue Code, or any successor provision, or
in the rules and regulations or in court and administrative decisions
which interpret such section or sections.
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(g) "Real Estate Investment Trust" is a corporation, trust or
association (other than a real estate syndication) that 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.
(h) "Total Operating Expenses" for any period shall mean all cash
operating expenses, including additional expenses paid directly or
indirectly by the Corporation to its affiliates or third parties based
upon their relationship with the Corporation, including loan
administration, servicing, engineering, inspection and all other expenses
paid by the Corporation, except the expenses related to raising capital,
for interest, taxes, and direct property acquisition, operation,
maintenance and management costs.
(i) "Unimproved Real Property" means the property of the Corporation
which has the following three characteristics: (1) an equity interest in
property which was not acquired for the purpose of producing rental or
other operating income, (2) has no development or construction in process
on such land, and (3) no development or construction on such land is
planned in good faith to commence on such land within one year.
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