MISSION WEST PROPERTIES, INC.
RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the Corporation shall be
located at such place or places as the Board of Directors may designate.
SECTION 2. ADDITIONAL OFFICES. The Corporation may have additional offices at
such places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE. All meetings of stockholders shall be held at the principal
office of the Corporation or at such other place within the United States as
shall be stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING. An annual meeting of the stockholders for the
election of directors and the transaction of any business within the powers
of the Corporation shall be held on a date and at the time set by the Board
of Directors.
SECTION 3. SPECIAL MEETINGS. The president, chief executive officer or Board
of Directors may call special meetings of the stockholders. Special meetings
of stockholders shall also be called by the secretary of the Corporation upon
the written request of the holders of shares entitled to cast not less than a
majority of all the votes entitled to be cast at such meeting. Such request
shall state the purpose of such meeting and the matters proposed to be acted
on at such meeting. The secretary shall inform such stockholders of the
reasonably estimated cost of preparing and mailing notice of the meeting and,
upon payment to the Corporation by such stockholders of such costs, the
secretary shall give notice to each stockholder entitled to notice of the
meeting.
SECTION 4. NOTICE. Not less than ten nor more than 90 days before each
meeting of stockholders, the secretary shall give to each stockholder
entitled to vote at such meeting and to each stockholder not entitled to vote
who is entitled to notice of the meeting written or printed notice stating
the time and place of the meeting and, in the case of a special meeting or as
otherwise may be required by any statute, the purpose for which the meeting
is called, either by mail or by presenting it to such stockholder personally
or by leaving it at his
residence or usual place of business. If mailed, such notice shall be deemed
to be given when deposited in the United States mail addressed to the
stockholder at his post office address as it appears on the records of the
Corporation, with postage thereon prepaid.
SECTION 5. SCOPE OF NOTICE. Any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in
the notice, except such business as is required by any statute to be stated
in such notice. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the notice.
SECTION 6. ORGANIZATION. At every meeting of stockholders, the chairman of
the board, if there be one, shall conduct the meeting or, in the case of
vacancy in office or absence of the chairman of the board, one of the
following officers present shall conduct the meeting in the order stated: the
vice chairman of the board, if there be one, the president, the vice
presidents in their order of rank and seniority, or a chairman chosen by the
stockholders entitled to cast a majority of the votes which all stockholders
present in person or by proxy are entitled to cast, shall act as chairman,
and the secretary, or, in his absence, an assistant secretary, or in the
absence of both the secretary and assistant secretaries, a person appointed
by the chairman shall act as secretary.
SECTION 7. QUORUM. At any meeting of stockholders, the presence in person or
by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this
section shall not affect any requirement under any statute or the charter of
the Corporation for the vote necessary for the adoption of any measure. If,
however, such quorum shall not be present at any meeting of the stockholders,
the stockholders entitled to vote at such meeting, present in person or by
proxy, shall have the power to adjourn the meeting from time to time to a
date not more than 120 days after the original record date without notice
other than announcement at the meeting. At such adjourned meeting at which a
quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
SECTION 8. VOTING. A plurality of all the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient
to elect a director. Each share may be voted for as many individuals as
there are directors to be elected and for whose election the share is
entitled to be voted. A majority of the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient
to approve any other matter which may properly come before the meeting,
unless more than a majority of the votes cast is required by statute or by
the charter of the Corporation. Unless otherwise provided in the charter,
each outstanding share, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders.
SECTION 9. PROXIES. A stockholder may cast the votes entitled to be cast by
the shares of the stock owned of record by him either in person or by proxy
executed in writing by the stockholder or by his duly authorized agent. Such
proxy shall be filed with the secretary of the Corporation before or at the
time of the meeting. No proxy shall be valid after eleven months from the
date of its execution, unless otherwise provided in the proxy.
SECTION 10. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation
registered in the name of a corporation, partnership, trust or other entity,
if entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed
by any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the
partners of a partnership presents a certified copy of such bylaw, resolution
or agreement, in which case such person may vote such stock. Any director or
other fiduciary may vote stock registered in his name as such fiduciary,
either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall
not be voted at any meeting and shall not be counted in determining the total
number of outstanding shares entitled to be voted at any given time, unless
they are held by it in a fiduciary capacity, in which case they may be voted
and shall be counted in determining the total number of outstanding shares at
any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of
stock registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth
the class of stockholders who may make the certification, the purpose for
which the certification may be made, the form of certification and the
information to be contained in it; if the certification is with respect to a
record date or closing of the stock transfer books, the time after the record
date or closing of the stock transfer books within which the certification
must be received by the Corporation; and any other provisions with respect to
the procedure which the Board of Directors considers necessary or desirable.
On receipt of such certification, the person specified in the certification
shall be regarded as, for the purposes set forth in the certification, the
stockholder of record of the specified stock in place of the stockholder who
makes the certification.
Notwithstanding any other provision of the charter of the Corporation or
these Bylaws, Title 3, Subtitle 7 of the Corporations and Associations
Article of the Annotated Code of Maryland (or any successor statute) shall
not apply to any acquisition by any person of shares of stock of the
Corporation. This section may be repealed, in whole or in part, at any time,
whether before or after an acquisition of control shares and, upon such
repeal, may, to the extent provided by any successor bylaw, apply to any
prior or subsequent control share acquisition.
SECTION 11. INSPECTORS. At any meeting of stockholders, the chairman of the
meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all votes, report the results and perform such other acts as are proper
to conduct the election and voting with impartiality and fairness to all the
stockholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting.
If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting
shall be PRIMA FACIE evidence thereof.
SECTION 12. NOMINATIONS AND PROPOSALS BY STOCKHOLDERS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (i) pursuant to
the Corporation's notice of meeting, (ii) by or at the direction of
the Board of Directors, (iii) by any stockholder of the Corporation
who was a stockholder of record both at the time of giving of
notice provided for in this Section 12(a) and at the time of the
annual meeting, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section
12(a), or (iv) as provided below in Section 14.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 12, the stockholder must have
given timely notice thereof in writing to the secretary of the
Corporation and such other business must otherwise be a proper
matter for action by stockholders. To be timely, a stockholder's
notice shall be delivered to the secretary at the principal
executive offices of the Corporation not later than the close of
business on the 60th day nor earlier than the close of business on
the 90th day prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date or if the
Corporation has not previously held an annual meeting, notice by
the stockholder to be timely must be so delivered not earlier than
the close of business on the 90th day prior to such annual meeting
and not later than the close of business on the later of the 60th
day prior to such annual meeting or the tenth day following the day
on which public announcement of the date of such meeting is first
made by the Corporation. In no event shall the public
announcement of a postponement or adjournment of an annual meeting
to a later date or time commence a new time period for the giving
of a stockholder's notice as described above. Such stockholder's
notice shall set forth (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in
an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") (including such person's
written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (ii) as to any other
business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
stockholder and of the beneficial owner, if any, on whose behalf
the proposal is made; and (iii) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (y) the number of shares of each class of
stock of the Corporation which are owned beneficially and of record
by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 12 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is
increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 70 days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 12(a) shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth day following the day
on which such public announcement is first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of
meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are
to be elected (i) pursuant to the Corporation's notice of meeting, (ii)
by or at the direction of the Board of Directors, (iii) provided that
the Board of Directors has determined that directors shall be elected at
such special meeting, by any stockholder of the Corporation who is a
stockholder of record both at the time of giving of notice provided for
in this Section 12(b) and at the time of the special meeting, who is
entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 12(b) or (iv) in any event, as
provided in Section 14. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a
person or persons (as the case may be) for election to such position as
specified in the Corporation's notice of meeting, if the stockholder's
notice containing the information required by paragraph (a)(2) of this
Section 12 shall be delivered to the secretary at the principal
executive offices of the Corporation not earlier than the close of
business on the 90th day prior to such special meeting and not later
than the close of business on the later of the 60th day prior to such
special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of a postponement or
adjournment of a special meeting to a later date or time commence a new
time period for the giving of a stockholder's notice as described above.
(C) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 12 or in Section 14 shall be
eligible to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in
this Section 12. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made or proposed, as the case
may be, in accordance with the procedures set forth in this Section
12 and, if any proposed nomination or business is not in compliance
with this Section 12, to declare that such nomination or proposal
shall be disregarded.
(2) For purposes of this Section 12, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 12, a
stockholder shall also comply with all applicable requirements of
state law and of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
12. Nothing in this Section 12 shall be deemed to affect any rights
of stockholders to request inclusion of proposals in, nor any right
of the Corporation to omit a proposal from, the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 13. VOTING BY BALLOT. Voting on any question or in any election may
be by voice unless the presiding officer shall order or any stockholder shall
demand that voting be by ballot.
SECTION 14. NOMINATION AND ELECTION OF BERG GROUP DIRECTOR REPRESENTATIVES.
The Board of Directors shall include among its members two individuals
nominated by Carl E. Berg, Clyde J. Berg, the members of their respective
immediate families and certain entities controlled by Carl E. Berg and/or
Clyde J. Berg which are Berg & Berg Enterprises, Inc., Baccarat Cambrian
Partnership, Baccarat Fremont Developers LLC and DeAnza Office Partners
(collectively the "Berg Group") and their affiliates (the "Berg Group Board
Representatives") so long as the members of the Berg Group, together with
their affiliates (other than the Corporation or Mission West Properties,
L.P., Mission West Properties, L.P. I, Mission West Properties, L.P. II or
Mission West Properties, L.P. III (collectively, the "Operating
Partnership"), in the aggregate, own at least 15% of the total number of
shares of voting stock of the Corporation (taking into account the
conversion, exchange or exercise of all outstanding warrants, options,
convertible securities and other rights to acquire voting stock of the
Corporation and all units of limited partnership interests in the Operating
Partnership exchangeable or redeemable for Common Stock or other voting stock
of the Corporation (without regard to any ownership limit set forth in the
Corporation's charter, the Bylaws or any agreement) (the "Fully-Diluted"
number of shares)). The Berg Group shall exercise the right to name directors
provided in this Section 14 by submitting to the Board of Directors prior to
any annual meeting or other meeting at which directors are elected the
name(s) of the Berg Group nominee(s). In the event the Berg Group and their
affiliates (other than the Company and the Operating Partnership), in the
aggreagate, own less than 15%, but at least 10%, of the Fully-Diluted number
of shares, the Berg Group may nominate only one director to be a Berg Group
Board Representative.
A Berg Group Board Representative may not be replaced, whether by election or
filling of a vacancy, by any individual who has not been nominated by the
Berg Group. In the event of doubt concerning the identification of the
nominees of the Berg Group, prior to any meeting of stockholders at which
directors are to be elected, the chief executive officer or presiding
officer, if a different person, shall ask the Berg Group members to cast
ballots, and the one or two individuals, as the case may be, selected by the
holders of a majority of all of the Fully-Diluted shares held by the Berg
Group members shall be deemed to be the nominees of the Berg Group.
As used in this Section 14 the term "affiliate" shall have the meaning
ascribed to it by Rule 12b-2 promulgated under the Exchange Act.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation shall
be managed under the direction of its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at
any special meeting called for that purpose, a majority of the entire Board
of Directors may establish, increase or decrease the number of directors,
provided that the number thereof shall never be less than the minimum number
required by the Maryland General Corporation Law, nor more than 15, and
further provided that the tenure of office of a director shall not be
affected by any decrease in the number of directors.
SECTION 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of
Directors shall be held immediately after and at the same place as the annual
meeting of stockholders, no notice other than this Bylaw being necessary. The
Board of Directors may provide, by resolution, the time and place, either
within or without the State of Maryland, for the holding of regular meetings
of the Board of Directors without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the chairman of the board, president or by
a majority of the directors then in office. The person or persons authorized
to call special meetings of the Board of Directors may fix any place, either
within or without the State of Maryland, as the place for holding any special
meeting of the Board of Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, facsimile transmission, United
States mail or courier to each director at his business or residence address.
Notice by personal delivery, by telephone or a facsimile transmission shall
be given at least two days prior to the meeting. Notice by mail shall be
given at least five days prior to the meeting and shall be deemed to be given
when deposited in the United States mail properly addressed, with postage
thereon prepaid. Telephone notice shall be deemed to be given when the
director is personally given such notice in a telephone call to which he is a
party. Facsimile transmission notice shall be deemed to be given upon
completion of the transmission of the message to the number given to the
Corporation by the director and receipt of a completed answer-back indicating
receipt. Neither the business to be transacted at, nor the purpose of, any
annual, regular or special meeting of the Board of Directors need be stated
in the notice, unless specifically required by statute or these Bylaws.
SECTION 6. QUORUM.
(a) Subject to the requirements of paragraph (b) of this Section 6, a
majority of the directors shall constitute a quorum for transaction of
business at any meeting of the Board of Directors, provided that, if
less than a majority of such directors are present at said meeting, a
majority of the directors present may adjourn the meeting from time to
time without further notice, and provided further that if, pursuant to
the charter of the Corporation or these Bylaws, the vote of a majority
of a particular group of directors is required for action, a quorum must
also include a majority of such group.
(b) Until the date on which the Berg Group and their affiliates (other
than the Company and the Operating Partnership) own less than 15% of the
Fully-Diluted number of shares, all meetings of the Board of Directors
shall require the presence of Carl E. Berg or the presence of an
individual whom he designates to replace him on the Board of Directors
(the "Designee"). Mr. Berg shall submit a written statement identifying
the Designee to the Company from time to time to permit identification
of the Designee in the event that death, disability or other event
results in a vacancy on the Board of Directors as a result of Mr. Berg's
inability to serve as a director. Mr. Berg may amend the statement at
his sole discretion.
(c) Subject to the foregoing, the directors present at a meeting which
has been duly called and convened may continue to transact business
until adjournment, notwithstanding the withdrawal of enough directors to
leave less than a quorum.
SECTION 7. VOTING.
(a) Except as provided in paragraph (a) and (b) of this Section 7, the
action of the majority of the directors present at a meeting at which a
quorum is present shall be the action of the Board of Directors, unless
the concurrence of a greater proportion is required for such action by
applicable statute.
(b) The approval of more than 75% of all of the directors then serving
on the Board of Directors shall be required to approve (i) acquisitions
of assets or conduct of any business other than, in either case, through
the Operating Partnership, (ii) the termination of the Corporation's
status as a REIT or (iii) the Corporation's incurring indebtedness for
borrowed funds exceeding 50% of the market value of the outstanding
Common Stock determined as if all outstanding units of limited
partnership interests in the Operating Partnership had been converted
into Common Stock, plus the market value of all other publicly traded
securities of the Corporation outstanding from time to time, plus the
total debt of the Corporation and the Operating Partnership.
SECTION 8. TELEPHONE MEETINGS. Directors may participate in a meeting by
means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person
at the meeting.
SECTION 9. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a
meeting, if a consent in writing to such action is signed by each director
and such written consent is filed with the minutes of proceedings of the
Board of Directors.
SECTION 10. VACANCIES. If for any reason any or all the directors cease to be
directors, such event shall not terminate the Corporation or affect these
Bylaws or the powers of the remaining directors hereunder (even if fewer than
three directors remain). Any vacancy on the Board of Directors for any cause
other than an increase in the number of directors shall be filled by a
majority of the remaining directors, even if such majority is less than a
quorum. Any vacancy in the number of directors created by an increase in the
number of directors may be filled by a majority vote of the entire Board of
Directors. Any individual so
elected as director shall hold office until the next annual meeting of
stockholders and until his successor is elected and qualifies.
SECTION 11. COMPENSATION. Directors shall receive a salary for their services
as directors as set forth in a resolution of the Board of Directors, and may
receive compensation per year and/or per meeting and/or per visit to real
property or other facilities owned or leased by the Corporation and for any
service or activity they performed or engaged in as directors. Directors may
be reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Board of Directors or of any committee thereof and for
their expenses, if any, in connection with each property visit and any other
service or activity they performed or engaged in as directors; but nothing
herein contained shall be construed to preclude any directors from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 12. LOSS OF DEPOSITS. No director shall be liable for any loss which
may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or stock have been
deposited.
SECTION 13. SURETY BONDS. Unless required by law, no director shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
SECTION 14. RELIANCE. Each director, officer, employee and agent of the
Corporation shall, in the performance of his duties with respect to the
Corporation, be fully justified and protected with regard to any act or
failure to act in reliance in good faith upon the books of account or other
records of the Corporation, upon an opinion of counsel or upon reports made
to the Corporation by any of its officers or employees or by the adviser,
accountants, appraisers or other experts or consultants selected by the Board
of Directors or officers of the Corporation, regardless of whether such
counsel or expert may also be a director.
SECTION 15. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
directors shall have no responsibility to devote their full time to the
affairs of the Corporation. Except as provided otherwise in any agreement
between the Corporation and the affected person, any director or officer,
employee or agent of the Corporation, in his personal capacity or in a
capacity as an affiliate, employee, or agent of any other person, or
otherwise, may have business interests and engage in business activities
similar to or in addition to or in competition with those of or relating to
the Corporation.
ARTICLE IV
COMMITTEES
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may
appoint from among its members an Executive Committee, an Audit Committee,
a Compensation Committee, and other committees, composed of one or more
directors, to serve at the pleasure of the Board of Directors.
SECTION 2. POWERS. The Board of Directors may delegate to committees
appointed under Section 1 of this Article any of the powers of the Board of
Directors, except as prohibited by law and these Bylaws.
SECTION 3. MEETINGS. Notice of committee meetings shall be given in the same
manner as notice for special meetings of the Board of Directors. A majority
of the members of the committee shall constitute a quorum for the transaction
of business at any meeting of the committee. The act of a majority of the
committee members present at a meeting shall be the act of such committee.
The Board of Directors may designate a chairman of any committee, and such
chairman may fix the time and place of its meeting unless the Board shall
otherwise provide. In the absence of any member of any such committee, the
members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another director to act in the place of such absent
member. Each committee shall keep minutes of its proceedings.
SECTION 4. TELEPHONE MEETINGS. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these
means shall constitute presence in person at the meeting.
SECTION 5. INFORMAL ACTION BY COMMITTEES. Any action required or permitted to
be taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by each
member of the committee and such written consent is filed with the minutes of
proceedings of such committee.
SECTION 6. VACANCIES. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the membership of any
committee, to fill all vacancies, to designate alternate members to replace
any absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
SECTION 1. GENERAL PROVISIONS. The officers of the Corporation shall include
a chief executive officer, a president, a secretary and a treasurer and may
include a chairman of the board, a vice chairman of the board, one or more
vice presidents, a chief operating officer, a chief financial officer, one or
more assistant secretaries and one or more assistant treasurers. In addition,
the Board of Directors may from time to time appoint such other officers with
such powers and duties as they shall deem necessary or desirable. The
officers of the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held after each
annual meeting of stockholders, except that the chief executive officer may
appoint one or more vice presidents, assistant secretaries and assistant
treasurers. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as may be convenient. Each
officer shall hold office until his successor is elected and qualifies or
until his death, resignation or removal in the manner hereinafter provided.
Any two or more offices except president and vice president may be held by
the same person. In its discretion, the Board of Directors may leave unfilled
any office except that of president, treasurer and secretary. Election of an
officer or agent shall not of itself create contract rights between the
Corporation and such officer or agent.
SECTION 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation
may be removed by the Board of Directors if in its judgment the best
interests of the Corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so
removed. Any officer
of the Corporation may resign at any time by giving written notice of his
resignation to the Board of Directors, the chairman of the board, the
president or the secretary. Any resignation shall take effect at any time
subsequent to the time specified therein or, if the time when it shall become
effective is not specified therein, immediately upon its receipt. The
acceptance of a resignation shall not be necessary to make it effective
unless otherwise stated in the resignation. Such resignation shall be without
prejudice to the contract rights, if any, of the Corporation.
SECTION 3. VACANCIES. A vacancy in any office may be filled by the Board of
Directors for the balance of the term.
SECTION 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a
chief executive officer. In the absence of such designation, the chairman of
the board shall be the chief executive officer of the Corporation. The chief
executive officer shall have general responsibility for implementation of the
policies of the Corporation, as determined by the Board of Directors, and for
the management of the business and affairs of the Corporation.
SECTION 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a
chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the Board of Directors or the
chief executive officer.
SECTION 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a
chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the Board of Directors or the
chief executive officer.
SECTION 7. CHAIRMAN OF THE BOARD. The Board of Directors shall designate a
chairman of the board. The chairman of the board shall preside over the
meetings of the Board of Directors and of the stockholders at which he shall
be present. The chairman of the board shall perform such other duties as may
be assigned to him by the Board of Directors.
SECTION 8. PRESIDENT. The president or chief executive officer, as the case
may be, shall in general supervise and control all of the business and
affairs of the Corporation. In the absence of a designation of a chief
operating officer by the Board of Directors, the president shall be the chief
operating officer. He may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer
or agent of the Corporation or shall be required by law to be otherwise
executed; and in general shall perform all duties incident to the office of
president and such other duties as may be prescribed by the Board of
Directors from time to time.
SECTION 9. VICE PRESIDENTS. In the absence of the president or in the event
of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at
the time of their election or, in the absence of any designation, then in the
order of their election) shall perform the duties of the president and when
so acting shall have all the powers of and be subject to all the restrictions
upon the president; and shall perform such other duties as from time to time
may be assigned to him by the president or by the Board of Directors. The
Board of Directors may designate one or more vice presidents as executive
vice president or as vice president for particular areas of responsibility.
SECTION 10. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (c) be custodian of the corporate records and
of the seal of the Corporation; (d) keep a register of the post office
address of each stockholder which shall be furnished to the secretary by such
stockholder; (e) have general charge of the share transfer books of the
Corporation; and (f) in general perform such other duties as from time to
time may be assigned to him by the chief executive officer, the president or
by the Board of Directors.
SECTION 11. TREASURER. The treasurer shall have the custody of the funds and
securities of the Corporation and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of
Directors. In the absence of a designation of a chief financial officer by
the Board of Directors, the treasurer shall be the chief financial officer of
the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the president and Board of Directors, at the regular meetings
of the Board of Directors or whenever it may so require, an account of all
his 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, moneys and other property of whatever kind in his
possession or under his control belonging to the Corporation.
SECTION 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties
as shall be assigned to them by the secretary or treasurer, respectively, or
by the president or the Board of Directors. The assistant treasurers shall,
if required by the Board of Directors, give bonds for the faithful performance
of their duties in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors.
SECTION 13. SALARIES. The salaries and other compensation of the officers
shall be fixed from time to time by the Board of Directors and no officer
shall be prevented from receiving such salary or other compensation by reason
of the fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer or
agent to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Corporation and such authority may be
general or confined to specific instances. Any agreement, deed, mortgage,
lease or other document executed by one or more of the directors or by an
authorized person shall be valid and binding upon the Board of Directors and
upon the Corporation when authorized or ratified by action of the Board of
Directors.
SECTION 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name
of the Corporation shall be signed by such officer or agent of the
Corporation in such manner as shall from time to time be determined by the
Board of Directors.
SECTION 3. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
designate.
ARTICLE VII
STOCK
SECTION 1. CERTIFICATES. Each stockholder shall be entitled to a certificate
or certificates which shall represent and certify the number of shares of
each class of stock held by him in the Corporation. Each certificate shall be
signed by the chief executive officer, the president or a vice president and
countersigned by the secretary or an assistant secretary or the treasurer or
an assistant treasurer and may be sealed with the seal, if any, of the
Corporation. The signatures may be either manual or facsimile. Certificates
shall be consecutively numbered; and if the Corporation shall, from time to
time, issue several classes of stock, each class may have its own number
series. A certificate is valid and may be issued whether or not an officer
who signed it is still an officer when it is issued. Each certificate
representing shares which are restricted as to their transferability or
voting powers, which are preferred or limited as to their dividends or as to
their allocable portion of the assets upon liquidation or which are
redeemable at the option of the Corporation, shall have a statement of such
restriction, limitation, preference or redemption provision, or a summary
thereof, plainly stated on the certificate. If the Corporation has authority
to issue stock of more than one class, the certificate shall contain on the
face or back a full statement or summary of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and
terms and conditions of redemption of each class of stock and, if the
Corporation is authorized to issue any preferred or special class in series,
the differences in the relative rights and preferences between the shares of
each series to the extent they have been set and the authority of the Board
of Directors to set the relative rights and preferences of subsequent series.
In lieu of such statement or summary, the certificate may state that the
Corporation will furnish a full statement of such information to any
stockholder upon request and without charge. If any class of stock is
restricted by the Corporation as to transferability, the certificate shall
contain a full statement of the restriction or state that the Corporation
will furnish information about the restrictions to the stockholder on request
and without charge.
SECTION 2. TRANSFERS. Upon surrender to the Corporation or the transfer agent
of the Corporation of a stock certificate duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the
Corporation shall issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of any share
of stock as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such share or on
the
part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock will
be subject in all respects to the charter of the Corporation and all of the
terms and conditions contained therein, and to the terms of any written
agreement between the Corporation and a stockholder with respect to share
transfers subject to the terms of such agreement.
SECTION 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of
Directors may direct a new certificate to be issued in place of any
certificate previously issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. When
authorizing the issuance of a new certificate, an officer designated by the
Board of Directors may, in his discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to advertise the same in such
manner as he shall require and/or to give bond, with sufficient surety, to
the Corporation to indemnify it against any loss or claim which may arise as
a result of the issuance of a new certificate.
SECTION 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of
Directors may set, in advance, a record date for the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders
or determining stockholders entitled to receive payment of any dividend or
the allotment of any other rights, or in order to make a determination of
stockholders for any other proper purpose. Such date, in any case, shall not
be prior to the close of business on the day the record date is fixed and
shall be not more than 90 days and, in the case of a meeting of stockholders,
not less than ten days, before the date on which the meeting or particular
action requiring such determination of stockholders of record is to be held
or taken.
In lieu of fixing a record date, the Board of Directors may provide that the
stock transfer books shall be closed for a stated period but not longer than
20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the
date of such meeting.
If no record date is fixed and the stock transfer books are not closed for
the determination of stockholders, (a) the record date for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day on which the notice of meeting
is mailed or the thirtieth day before the meeting, whichever is the closer
date to the meeting; and (b) the record date for the determination of
stockholders entitled to receive payment of a dividend or an allotment of any
other rights shall be the close of business on the day on which the
resolution of the directors, declaring the dividend or allotment of rights,
is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination
shall apply to any adjournment thereof, except when (i) the determination has
been made through the closing of the transfer books and the stated period of
closing has expired or (ii) the meeting is adjourned to a date more than 120
days after the record date fixed for the original meeting, in either of which
case a new record date shall be determined as set forth herein.
SECTION 5. STOCK LEDGER. The Corporation shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an
original or duplicate share ledger containing the name and address of each
stockholder and the number of shares of each class held by such stockholder.
SECTION 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may
issue fractional stock or provide for the issuance of scrip, all on such
terms and under such conditions as they may determine. Notwithstanding any
other provision of the charter or these Bylaws, the Board of Directors may
issue units consisting of different securities of the Corporation. Any
security issued in a unit shall have the same characteristics as any
identical securities issued by the Corporation, except that the Board of
Directors may provide that for a specified period securities of the
Corporation issued in such unit may be transferred on the books of the
Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the
fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
SECTION 1. AUTHORIZATION. Dividends and other distributions upon the stock of
the Corporation may be authorized and declared by the Board of Directors,
subject to the provisions of law and the charter of the Corporation.
Dividends and other distributions may be paid in cash, property or stock of
the Corporation, subject to the provisions of law and the charter.
SECTION 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
available for dividends or other distributions such sum or sums as the Board
of Directors may from time to time, in its absolute discretion, think proper
as a reserve fund for contingencies, for equalizing dividends or other
distributions, for repairing or maintaining any property of the Corporation
or for such other purpose as the Board of Directors shall determine to be in
the best interest of the Corporation, and the Board of Directors may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of
Directors may from time to time adopt, amend, revise or terminate any policy
or policies with respect to investments by the Corporation as it shall deem
appropriate in its sole discretion.
ARTICLE XI
SEAL
SECTION 1. SEAL. The Board of Directors may authorize the adoption of a seal
by the Corporation. The seal shall contain the name of the Corporation and
the year of its incorporation and the words "Incorporated in Maryland." The
Board of Directors may authorize one or more duplicate seals and provide for
the custody thereof.
SECTION 2. AFFIXING SEAL. Whenever the Corporation is permitted or required
to affix its seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a seal to place the
word "(SEAL)" adjacent to the signature of the person authorized to execute
the document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time,
the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to (a) any individual who is a present or former director or officer of the
Corporation and who is made a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served
another corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a director,
officer, partner or trustee of such corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or other
enterprise and who is made a party to the proceeding by reason of his service
in that capacity. The Corporation may, with the approval of its Board of
Directors, provide such indemnification and advance for expenses to a person
who served a predecessor of the Corporation in any of the capacities
described in (a) or (b) above and to any employee or agent of the Corporation
or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of the Bylaws or charter of the Corporation
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure
to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the
Corporation or these Bylaws or pursuant to applicable law, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted at nor the
purpose of any meeting need be set forth in the waiver of notice, unless
specifically required by statute. The attendance of any person at any meeting
shall constitute a waiver of notice of such meeting, except where such person
attends a meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting is not lawfully called or
convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or
repeal any provision of these Bylaws and to make new Bylaws subject to the
provisions of the corporation's charter and Article III, Section 7 of these
Bylaws.