Exhibit 3.2
FELDMAN MALL PROPERTIES, INC.
SECOND AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation in
the State of Maryland shall be located at such place as the Board of Directors
may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional
offices, including a principal executive office, at such place or places as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal executive office of the Corporation or at such other place, within or
outside the State of Maryland, as shall be set by the Chairman of the Board of
Directors and 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 during the month of May in each year.
Section 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, chief executive officer, president
or Board of Directors may call a special meeting of the stockholders. Subject to
subsection (b) of this Section 3, a special meeting of stockholders shall also
be called by the secretary of the Corporation upon the written request of the
stockholders entitled to cast not less than a majority of all the votes entitled
to be cast at such meeting.
(b) Stockholder Requested Special Meetings.
(1) Any stockholder of record seeking to have stockholders request a
special meeting shall, by sending written notice to the secretary (the "Record
Date Request Notice") by registered mail, return receipt requested, request the
Board of Directors to fix a record date to determine the stockholders entitled
to request a special meeting (the "Request Record Date"). The Record Date
Request Notice shall set forth the purpose of the meeting and the matters
proposed to be acted on at it, shall be signed by one or more stockholders of
record as of the date of signature (or their agents duly authorized in a writing
accompanying the Record Date Request Notice), shall bear the date of signature
of each such stockholder (or such agent) and shall set forth all information
relating to each such stockholder that must be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election
contest is not involved), or is otherwise required, in each case pursuant to
Regulation 14A and Schedule 14A (or any successor provisions) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Upon receiving
the Record Date Request Notice, the Board of Directors may fix a Request Record
Date. The Request Record Date shall not precede and shall not be more than ten
days after the close of business on the date on which the resolution fixing the
Request Record Date is adopted by the Board of Directors. If the Board of
Directors, within ten days after the date on which a valid Record Date Request
Notice is received, fails to adopt a resolution fixing the Request Record Date,
the Request Record Date shall be the close of business on the tenth day after
the first date on which the Record Date Request Notice is received by the
secretary.
(2) In order for any stockholder to request a special meeting, one or
more written requests for a special meeting signed by stockholders of record (or
their agents duly authorized in a writing accompanying the request) as of the
Request Record Date entitled to cast not less than a majority (the "Special
Meeting Percentage") of all of the votes entitled to be cast at such meeting
(the "Special Meeting Request") shall be delivered to the secretary. In
addition, the Special Meeting Request shall set forth the purpose of the meeting
and the matters proposed to be acted on at it (which shall be limited to those
lawful matters set forth in the Record Date Request Notice received by the
secretary), (b) shall bear the date of signature of each such stockholder (or
such agent) signing the Special Meeting Request, (c) shall set forth the name
and address, as they appear in the Corporation's books, of each stockholder
signing such request (or on whose behalf the Special Meeting Request is signed),
the class, series and number of all shares of stock of the Corporation which are
owned by each such stockholder, and the nominee holder for, and number of,
shares owned by such stockholder beneficially but not of record, (d) shall be
sent to the secretary by registered mail, return receipt requested, and (e)
shall be received by the secretary within 60 days after the Request Record Date.
Any requesting stockholder (or agent duly authorized in a writing accompanying
the revocation or the Special Meeting Request) may revoke his, her or its
request for a special meeting at any time by written revocation delivered to the
secretary.
(3) The secretary shall inform the requesting stockholders of the
reasonably estimated cost of preparing and mailing the notice of meeting
(including the Corporation's proxy materials). The secretary shall not be
required to call a special meeting upon stockholder request and such meeting
shall not be held unless, in addition to the documents required by paragraph (2)
of this Section 3(b), the secretary receives payment of such reasonably
estimated cost prior to the mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special meeting shall
be held at such place, within or outside the State of Maryland, date and time as
may be designated by the chairman of the board, chief executive officer,
president or Board of Directors, whoever has called the meeting. In the case of
any special meeting called by the secretary upon the request of stockholders (a
"Stockholder Requested Meeting"), such meeting shall be held at such place,
within or outside the State of Maryland, date and time as may be designated by
the Board of Directors; provided, however, that the date of any Stockholder
Requested Meeting shall be not more than 90 days after the record date for such
meeting (the "Meeting Record Date"); and provided, further that if the Board of
Directors fails to designate, within ten days after the date that a valid
Special Meeting Request is actually received by the secretary (the "Delivery
Date"), a date and time for a Stockholder Requested Meeting, then such meeting
shall be held at 2:00 p.m. local time on the 90th day after the Meeting Record
Date or, if such 90th day is not a Business Day (as defined below), on the first
preceding Business Day; and provided, further that in the event that the Board
of Directors fails to designate a place for a Stockholder Requested Meeting
within ten days after the Delivery Date, then such meeting shall be held at the
principal executive office of the Corporation. In fixing a date for any special
meeting, the chairman of the board, chief executive officer, president or Board
of Directors may consider such factors as he, she or it deems relevant within
the good faith exercise of business judgment, including, without limitation, the
nature of the matters to be considered, the facts and circumstances surrounding
any request for the meeting and any plan of the Board of Directors to call an
annual meeting or a special meeting. In the case of any Stockholder Requested
Meeting, if the Board of Directors fails to fix a Meeting Record Date that is a
date within 30 days after the Delivery Date, then the close of business on the
30th day after the Delivery Date shall be the Meeting Record Date. The Board of
Directors may revoke the notice for any Stockholder Requested Meeting in the
event that the requesting stockholders fail to comply with the provisions of
paragraph (3) of this Section 3(b).
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(5) If written revocations of requests for the special meeting have
been delivered to the secretary and the result is that stockholders of record
(or their agents duly authorized in writing), as of the Request Record Date,
entitled to cast less than the Special Meeting Percentage have delivered, and
not revoked, requests for a special meeting to the secretary, the secretary
shall: (i) if the notice of meeting has not already been mailed, refrain from
mailing the notice of the meeting and send to all requesting stockholders who
have not revoked such requests written notice of any revocation of a request for
the special meeting, or (ii) if the notice of meeting has been mailed and if the
secretary first sends to all requesting stockholders who have not revoked
requests for a special meeting written notice of any revocation of a request for
the special meeting and written notice of the secretary's intention to revoke
the notice of the meeting, revoke the notice of the meeting at any time before
ten days before the commencement of the meeting. Any request for a special
meeting received after a revocation by the secretary of a notice of a meeting
shall be considered a request for a new special meeting.
(6) The chairman of the board, chief executive officer, president or
Board of Directors may appoint regionally or nationally recognized independent
inspectors of elections to act as the agent of the Corporation for the purpose
of promptly performing a ministerial review of the validity of any purported
Special Meeting Request received by the secretary. For the purpose of permitting
the inspectors to perform such review, no such purported request shall be deemed
to have been delivered to the secretary until the earlier of (i) ten Business
Days after receipt by the secretary of such purported request and (ii) such date
as the independent inspectors certify to the Corporation that the valid requests
received by the secretary represent at least a majority of the issued and
outstanding shares of stock that would be entitled to vote at such meeting.
Nothing contained in this paragraph (6) shall in any way be construed to suggest
or imply that the Corporation or any stockholder shall not be entitled to
contest the validity of any request, whether during or after such ten Business
Day period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
(7) For purposes of these Bylaws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of Maryland are authorized or obligated by law or executive order to
close.
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, by presenting it to such stockholder personally, by leaving it at the
stockholder's residence or usual place of business or by any other means
permitted by Maryland law. If mailed, such notice shall be deemed to be given
when deposited in the U.S. mail addressed to the stockholder at the
stockholder's address as it appears on the records of the Corporation, with
postage thereon prepaid.
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Section 5. SCOPE OF NOTICE. Subject to Section 12(a) of this Article II,
any business of the Corporation may be transacted at an annual meeting of
stockholders without being specifically designated in the notice, except such
business as is required by 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 AND CONDUCT. Every meeting of stockholders shall
be conducted by an individual appointed by the chairman of the board to be
chairman of the meeting or, in the absence of such appointment, by the chairman
of the board or, in the case of a vacancy in the office or absence of the
chairman of the board, by one of the following officers present at the meeting
in the order stated: the vice chairman of the board, if there be one, the chief
executive officer, the president, the vice presidents in their order of rank and
seniority, or, in the absence of such officers, a chairman chosen by the
stockholders by the vote of a majority of the votes cast by stockholders present
in person or by proxy. The secretary, or, in the secretary's absence, an
assistant secretary, or in the absence of both the secretary and assistant
secretaries, an individual appointed by the Board of Directors or, in the
absence of such appointment, an individual appointed by the chairman of the
meeting shall act as secretary. In the event that the secretary presides at a
meeting of the stockholders, an assistant secretary, or in the absence of
assistant secretaries, an individual appointed by the Board of Directors or the
chairman of the meeting, shall record the minutes of the meeting. The order of
business and all other matters of procedure at any meeting of stockholders shall
be determined by the chairman of the meeting. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the
discretion of such chairman, are appropriate for the proper conduct of the
meeting, including, without limitation, (a) restricting admission to the time
set for the commencement of the meeting; (b) limiting attendance at the meeting
to stockholders of record of the Corporation, their duly authorized proxies and
other such individuals as the chairman of the meeting may determine; (c)
limiting participation at the meeting on any matter to stockholders of record of
the Corporation entitled to vote on such matter, their duly authorized proxies
and other such individuals as the chairman of the meeting may determine; (d)
limiting the time allotted to questions or comments by participants; (e)
maintaining order and security at the meeting; (f) determining when the polls
should be open and closed; (g) removing any stockholder or any other individual
who refuses to comply with meeting procedures, rules or guidelines as set forth
by the chairman of the meeting; and (h) concluding a meeting or recessing or
adjourning the meeting to a later date and time and at a place announced at the
meeting. Unless otherwise determined by the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
Section 7. QUORUM; ADJOURNMENTS. 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 chairman of the meeting shall have the power to adjourn the meeting from
time to time to a date not more than 120 days after the original record date
without notice other than announcement at the meeting. At such adjourned meeting
at which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally notified.
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The stockholders present either in person or by proxy, at a meeting which
has been duly called and convened, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 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 applicable law or by the charter of the Corporation.
Unless otherwise provided by applicable law or by the charter, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Voting on any questions or in
any election may be viva voce unless the chairman of the meeting shall order
that voting be by ballot.
Section 9. PROXIES. A stockholder may cast the votes entitled to be cast
by the shares of stock owned of record by the stockholder in person or by proxy
executed by the stockholder or by the stockholder's duly authorized agent in any
manner permitted by law. Such proxy or evidence of authorization of such proxy
shall be filed with the secretary of the Corporation before or at the meeting.
No proxy shall be valid more than eleven months after its date unless otherwise
provided in the proxy.
Section 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 or her name as such fiduciary, either
in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
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Section 11. INSPECTORS. The Board of Directors, in advance of any meeting,
may, but need not, appoint one or more individual inspectors or one or more
entities that designate individuals as inspectors to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the meeting or at the meeting by the chairman of the meeting. The inspectors,
if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. Each such report shall be in writing and signed by
him or her or by a majority of them if there is more than one inspector acting
at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors
on the number of shares represented at the meeting and the results of the voting
shall be prima facie evidence thereof.
Section 12. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER
STOCKHOLDER PROPOSALS.
(a) Annual Meetings of Stockholders.
(1) Nominations of individuals for election to the Board of Directors
and the proposal of business to be considered by the stockholders at an annual
meeting of stockholders may be made (i) pursuant to the Corporation's notice of
meeting, (ii) by or at the direction of the Board of Directors or (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).
(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 the stockholders. To be timely, a
stockholder's notice shall set forth all information required under this Section
12 and shall be delivered to the secretary at the principal executive offices of
the Corporation not less than 120 days nor more than 150 days prior to the first
anniversary of the date of mailing of the notice for the preceding year's annual
meeting (for purposes of the Corporation's 2005 annual meeting, notice of the
prior year's annual meeting shall be deemed to have been mailed on August 31,
2004); provided, however that in the event that the date of the annual meeting
is advanced or delayed by more than 30 days from the first anniversary of the
date of the preceding year's annual meeting, notice by the stockholder to be
timely must be so delivered not earlier than the 150th day prior to the date of
such annual meeting and not later than 5:00 p.m., Eastern Standard time, on the
later of the 120th day prior to the date of such annual meeting or the tenth day
following the day on which disclosure of the date of such meeting is first made.
The public announcement of a postponement or adjournment of an annual meeting
shall not 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
individual whom the stockholder proposes to nominate for election or reelection
as a director, (A) the name, age, business address and residence address of such
individual, (B) the class, series and number of any shares of stock of the
Corporation that are beneficially owned by such individual, (C) the date such
shares were acquired and the investment intent of such acquisition, and (D) all
other information relating to such individual that is required to be disclosed
in solicitations of proxies for election of directors in an election contest
(even if an election contest is not involved), or is otherwise required, in each
case pursuant to Regulation 14A and Schedule 14A (or any successor provisions)
under the Exchange Act and the rules thereunder (including such individual'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 description of such
business, the reasons for proposing such business at the meeting and any
material interest in such business of such stockholder and any Stockholder
Associated Person (as defined below) individually or in the aggregate (including
any anticipated benefit to the stockholder and the Stockholder Associated Person
therefrom); (iii) as to the stockholder giving the notice and any Stockholder
Associated Person, the class, series and number of all shares of stock of the
Corporation which are owned by such stockholder and by such Stockholder
Associated Person, if any, and the nominee holder for, and number of, shares
owned beneficially but not of record by such stockholder and by any such
Stockholder Associated Person; (iv) as to the stockholder giving the notice and
any Stockholder Associated Person covered by clauses (ii) or (iii) of this
paragraph 2 of this Section 12(a), the name and address of such stockholder, as
they appear on the Corporation's stock ledger and current name and address, if
different, and of such stockholder Associated Person and (v) to the extent known
by the stockholder giving the notice, the name and address of any other
stockholder supporting the nominee for election or reelection as a director or
the proposal of other business on the date of such stockholder's notice.
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(3) Notwithstanding anything in this subsection (a) of this Section 12
to the contrary, in the event the Board of Directors increases or decreases the
maximum or minimum number of directors in accordance with Article III, Section 2
of these Bylaws, and there is no public announcement of such action at least 130
days prior to the first anniversary of the date of mailing of the notice 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
5:00 p.m., Eastern Standard time, on the tenth day following the day on which
such public announcement is first made by the Corporation.
(4) For purposes of this Section 12, "Stockholder Associated Person"
of any stockholder shall mean (i) any person controlling, directly or
indirectly, or acting in concert with, such stockholder, (ii) any beneficial
owner of shares of stock of the Corporation owned of record or beneficially by
such stockholder and (iii) any person controlling, controlled by or under common
control with such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
individuals for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (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 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. In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more individuals to the Board
of Directors, any such stockholder may nominate an individual or individuals (as
the case may be) for election as a director as specified in the Corporation's
notice of meeting, if the stockholder's notice required by paragraph (2) of
Section 12(a) shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the 150th day prior to such special
meeting and not later than 5:00 p.m., Eastern Standard time, on the later of the
120th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. The public announcement of a postponement or adjournment of a special
meeting shall not commence a new time period for the giving of a stockholder's
notice as described above.
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(c) General.
(1) Upon written request by the secretary or the Board of Directors or
any committee thereof, any stockholder proposing a nominee for election as a
director or any proposal for other business at a meeting of stockholders shall
provide, within five Business Days of delivery of such request (or such other
period as may be specified in such request), written verification, satisfactory,
in the discretion of the Board of Directors or any committee thereof or any
authorized officer of the Corporation, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section 12. If a
stockholder fails to provide such written verification within such period, the
information as to which written verification was requested may be deemed not to
have been provided in accordance with this Section 12.
(2) Only such individuals who are nominated in accordance with this
Section 12 shall be eligible for election by stockholders as directors, and only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with this Section 12. The chairman of
the meeting shall have the power 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 this Section 12.
(3) For purposes of this Section 12, (a) the "date of mailing of the
notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of directors and (b) "public announcement" shall mean
disclosure (i) in a press release reported by the Dow Jones News Service,
Associated Press, Business Wire, PR Newswire or comparable news service or (ii)
in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to the Exchange Act.
(4) 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 right of a stockholder to request inclusion of a proposal in, nor
the right of the Corporation to omit a proposal from, the Corporation's proxy
statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
Section 13. MEETING BY CONFERENCE TELEPHONE. The Board of Directors or
chairman of the meeting may permit stockholders to participate in a meeting by
means of a conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation
in a meeting by these means constitutes presence in person at a meeting.
Section 14. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other
provision of the charter of the Corporation or these Bylaws, Title 3, Subtitle 7
of the Maryland General Corporation Law (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.
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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. The Board of
Directors may through general or special resolution delegate authority over the
approval of new property acquisitions or development plans and the financing
relating thereto or any other matter to one or more of the Company's executive
officers or to the Executive Committee. Such delegation of authority may
include, without limitation, the empowerment of the Executive Committee or the
chief executive officer to enter into acquisitions under certain dollar limits
set by the Board of Directors, to enter into contracts that are terminated if
not subsequently approved by the Board of Directors, or to enter into other
agreements subject to such conditions or limits as the Board of Directors may
specify.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. Each director shall hold
office until the next annual meeting and until his or her successor is elected
and qualified, provided, however, that a director may resign at any time. 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. In the
event such meeting is not so held, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors. A regular meeting of the Board of
Directors shall be held at least once every fiscal quarter at such time and
place as shall be specified in a notice given by the chairman of the board for
special meetings of the Board of Directors. A regular meeting need not be held
in the fiscal quarter in which the annual meeting is held.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the chairman of the board, the chief
executive officer, the president or by a majority of the directors then in
office. The person or persons authorized to call special meetings of the Board
of Directors may fix any place as the place for holding any special meeting of
the Board of Directors called by them. The Board of Directors may provide, by
resolution, the time and place for the holding of special meetings of the Board
of Directors without other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, electronic mail, facsimile
transmission, U.S. mail or courier to each director at his or her business or
residence address. Notice by personal delivery, telephone, electronic mail or
facsimile transmission shall be given at least 24 hours prior to the meeting.
Notice by U.S. mail shall be given at least three Business Days prior to the
meeting. Notice by courier shall be given at least three Business Days prior to
the meeting. Telephone notice shall be deemed to be given when the director or
his or her agent is personally given such notice in a telephone call to which
the director or his or her agent is a party. Electronic mail notice shall be
deemed to be given upon transmission of the message to the electronic mail
address given to the Corporation by the director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of the message
to the number given to the Corporation by the director and receipt of a
completed answer-back indicating receipt. Notice by U.S. mail shall be deemed to
be given when deposited in the U.S. mail properly addressed, with postage
thereon prepaid. Notice by courier shall be deemed to be given when deposited
with or delivered to a courier properly addressed.
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Section 6. WAIVER OF NOTICE. Waiver by a director in writing of notice of
a meeting, signed either before or after the time of the meeting shall be the
equivalent of the giving of such notice. Attendance by a director at a meeting,
whether in person or by proxy, without objection to the notice or lack thereof,
shall constitute a waiver of the proper notice of the meeting.
Section 7. AGENDA ITEMS. Each written notice of a meeting of the Board of
Directors shall include an agenda which sets forth the business to be transacted
at, and the purpose of, any annual, regular or special meeting of the Board of
Directors. In the case of telephonic notice, the agenda items shall be orally
communicated at the time the meeting notice is given. Except as provided in the
following paragraph, only items appearing on an agenda approved by the chairman
of the board may be considered at a meeting of the Board of Directors.
Items not appearing on an agenda approved by the chairman of the board may
be considered at a meeting of the Board of Directors if not less than 30 days
notice is given with respect to such meeting. In the event that a matter shall
arise at a meeting which was not included in an agenda approved by the chairman
of the board, such matter may be approved at the meeting only with the unanimous
approval of the entire Board of Directors.
Section 8. QUORUM. A majority of the directors shall constitute a quorum
for transaction of business at any meeting of the Board of Directors, provided
that, if less than a majority of such directors are present at said meeting, a
majority of the directors present may adjourn the meeting from time to time
without further notice, and provided, further that if, pursuant to applicable
law, the charter of the Corporation or these Bylaws, the vote of a majority of a
particular group of directors is required for action, a quorum must also include
a majority of such group.
The directors present at a meeting which has been duly called and convened
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum.
Section 9. VOTING. The action of the majority of the directors present at
a meeting at which a quorum is present shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable law, the charter or these Bylaws. If enough directors have
withdrawn from a meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of the directors necessary to constitute a
quorum at such meeting shall be the action of the Board of Directors, unless the
concurrence of a greater proportion is required for such action by applicable
law, the charter or these Bylaws.
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Section 10. ORGANIZATION. At each meeting of the Board of Directors, the
chairman of the board or, in the absence of the chairman, the chief executive
officer shall act as chairman of such meeting. In the absence of both the
chairman of the board and the chief executive officer, a director chosen by a
majority of the Board of Directors, shall act as chairman of such meeting. The
secretary or, in his or her absence, an assistant secretary of the Corporation,
or in the absence of the secretary and all assistant secretaries, a person
appointed by the chairman, shall act as Secretary of the meeting.
Section 11. TELEPHONE MEETINGS. Directors may participate in a meeting by
means of a conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation
in a meeting by these means shall constitute presence in person at the meeting.
Section 12. CONSENT 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 or by electronic transmission to such action is given by
each director and is filed with the minutes of proceedings of the Board of
Directors.
Section 13. 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). Except as may be provided by the Board of Directors in
setting the terms of any class or series of stock, any vacancy on the Board of
Directors may be filled, at any regular meeting or at any special meeting called
for this purpose, only by a majority of the remaining directors, even if the
remaining directors do not constitute a quorum. Any director elected to fill a
vacancy shall serve for the remainder of the full term of the directorship in
which the vacancy occurred and until a successor is elected and qualifies.
Section 14. COMPENSATION. Directors shall not receive any stated salary
for their services as directors but, by resolution of the Board of Directors,
may receive compensation per year and/or per meeting and/or per visit to real
property or other facilities owned, leased or to be acquired 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 15. 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 16. SURETY BONDS. Unless required by law, no director shall be
obligated to give any bond or surety or other security for the performance of
any of his or her duties.
Section 17. RELIANCE. Each director, officer, employee and agent of the
Corporation shall, in the performance of his or her duties with respect to the
Corporation, be fully justified and protected with regard to any act or failure
to act in reliance in good faith upon the books of account or other records of
the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants,
appraisers or other experts or consultants selected by the Board of Directors or
officers of the Corporation, regardless of whether such counsel or expert may
also be a director.
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Section 18. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
The directors shall have no responsibility to devote their full time to the
affairs of the Corporation. Any director or officer, employee or agent of the
Corporation, in his or her personal capacity or in a capacity as an affiliate,
employee, or agent of any other person, or otherwise, may have business
interests and engage in business activities similar to 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 shall
appoint from among its members a Nominating and Corporate Governance Committee,
an Audit Committee and a Compensation Committee and may appoint such other
committees as it deems appropriate to serve at the pleasure of the Board of
Directors. All committees shall be composed of one or more directors; provided,
however that the exact composition of each committee, including the total number
of directors and the number of Independent Directors on each such committee,
shall at all times comply with the listing requirements and rules and
regulations of the New York Stock Exchange, as modified or amended from time to
time, and the rules and regulations of the Securities and Exchange Commission,
as modified or amended from time to time. For purposes of this Section,
"Independent Director" shall have the definition set forth in Section 303.01 of
the New York Stock Exchange Listed Company Manual, as amended from time to time,
or such superseding definition as is hereafter promulgated by the New York Stock
Exchange.
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.
Section 3. EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the Board of Directors, may designate one or more
directors to constitute an Executive Committee, to serve as such, unless the
resolution designating the Executive Committee is sooner amended or rescinded by
the Board of Directors, until the next annual meeting of the Board of Directors
or until their respective successors are designated. Except as expressly limited
by the Maryland General Corporation Law or the charter of the Corporation, the
Executive Committee 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 between the meetings of the Board of Directors. The Executive
Committee shall keep a record of its acts and proceedings, which shall form a
part of the records of the Corporation in the custody of the secretary, and all
actions of the Executive Committee shall be reported to the Board of Directors
at the next meeting of the Board of Directors. Except as expressly provided in
this Article, the Executive Committee shall fix its own rules of procedure.
Section 4. MEETINGS. Notice of meetings of committees, except for the
Executive Committee, shall be given in the same manner as notice for special
meetings of the Board of Directors. No notice of meetings need be given for
meetings of the Executive Committee. A majority of the members of any committee
shall constitute a quorum for the transaction of business at any meeting of the
committee. The act of a majority of the committee members present at a meeting
shall be the act of such committee. The Board of Directors may designate a
chairman of any committee, and such chairman or, in the absence of a chairman,
any two members of any committee (if there are at least two members of the
Committee) may fix the time and place of its meeting unless the Board of
Directors shall otherwise provide. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another director to act in the place of such
absent member. Each committee shall keep minutes of its proceedings.
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Section 5. TELEPHONE MEETINGS. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone or
other communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 6. CONSENT 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 or by electronic transmission to such
action is given by each member of the committee and is filed with the minutes of
proceedings of such committee.
Section 7. 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 president, a secretary and a treasurer and may include a chairman of
the board, vice chairman of the board, a chief executive officer, one or more
vice presidents, a chief operating officer, a chief financial officer, one or
more assistant secretaries and one or more assistant treasurers. In addition,
the Board of Directors may from time to time elect such other officers with such
powers and duties as they shall deem necessary or desirable. The officers of the
Corporation shall be elected annually by the Board of Directors, except that the
chief executive officer or president may from time to time appoint one or more
vice presidents, assistant secretaries and assistant treasurers or other
officers. Each officer shall hold office until his or her successor is elected
and qualifies or until his or her death, or his or her resignation or removal in
the manner hereinafter provided. In its discretion, the Board of Directors may
leave unfilled any office except that of chief executive officer, president,
treasurer and secretary. Any two or more offices except chief executive officer
and vice president may be held by the same person. Election of an officer or
agent shall not of itself create contract rights between the Corporation and
such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Corporation may be removed, with or without cause, by the Board of Directors if
in its judgment the best interests of the Corporation would be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Any officer of the Corporation may resign at any time by
giving written notice of his or her resignation to the Board of Directors, the
chairman of the board, the president or the secretary. Any resignation shall
take effect immediately upon its receipt or at such later time specified in the
notice of resignation. The acceptance of a resignation shall not be necessary to
make it effective unless otherwise stated in the resignation. Such resignation
shall be without prejudice to the contract rights, if any, of the Corporation.
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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 shall 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. He or she may
execute any deed, mortgage, bond, contract or other instrument, except in cases
where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Corporation
or shall be required by law to be otherwise executed; and in general shall
perform all duties incident to the office of chief executive officer and such
other duties as may be prescribed by the Board of Directors from time to time.
Section 5. CHIEF OPERATING OFFICER. The chief executive officer may
designate a chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the chief executive officer and
shall report to the chief executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a
chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 7. CHAIRMAN OF THE BOARD. The Board of Directors shall designate a
chairman of the board. The chairman of the board shall preside over the meetings
of the Board of Directors and of the stockholders at which he shall be present.
The chairman of the board shall perform such other duties as may be assigned to
him or her by the Board of Directors.
Section 8. PRESIDENT. In the absence of a chief executive officer, the
president shall in general supervise and control all of the business and affairs
of the Corporation. In the absence of a designation of a chief operating officer
by the Board of Directors, the president shall be the chief operating officer.
He or she may execute any deed, mortgage, bond, contract or other instrument,
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the
Corporation or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Board of Directors from time to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in the
event of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at the
time of their election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be
assigned to such vice president by the president or by the Board of Directors.
The Board of Directors may designate one or more vice presidents as executive
vice president or as vice president for particular areas of responsibility.
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Section 10. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Corporation; (d) keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder; (e)
have general charge of the stock transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him or
her by the chief executive officer, the president or by the Board of Directors.
Section 11. TREASURER. The treasurer shall have the custody of the funds
and securities of the Corporation and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. In the absence of a designation of a chief financial officer by the
Board of Directors, the treasurer shall be the chief financial officer of the
Corporation.
The treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and Board of Directors, at the
regular meetings of the Board of Directors or whenever it may so require, an
account of all his or her transactions as treasurer and of the financial
condition of the Corporation.
If required by the Board of Directors, the treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, moneys and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Board of Directors. The assistant treasurers shall, if required
by the Board of Directors, give bonds for the faithful performance of their
duties in such sums and with such surety or sureties as shall be satisfactory to
the Board of Directors.
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 or she 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 shall be valid and binding upon the Corporation when authorized or
ratified by action of the Board of Directors and executed by an authorized
person.
15
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or agent of the Corporation in
such manner as shall from time to time be determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Except as otherwise provided in these Bylaws,
this Section shall not be interpreted to limit the authority of the Board of
Directors to issue some or all of the shares of any or all of the Corporation's
classes or series without certificates. Each stockholder, upon written request
to the secretary of the Corporation, shall be entitled to a certificate or
certificates which shall represent and certify the number of shares of each
class of stock held by him or her in the Corporation. Each certificate shall be
signed by the chairman of the board, the chief executive officer, the president
or a vice president and countersigned by the secretary or an assistant secretary
or the treasurer or an assistant treasurer and may be sealed with the seal, if
any, of the Corporation or a facsimile thereof. 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.
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Notwithstanding the foregoing, transfers of shares of any class of stock
will be subject in all respects to the charter of the Corporation and all of the
terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of
Directors may direct a new certificate to be issued in place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance
of a new certificate, an officer designated by the Board of Directors may, in
his or her discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or the owner's
legal representative to advertise the same in such manner as he or she 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 5:00 p.m., Eastern Standard time, 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 5:00 p.m., Eastern Standard time, on the day on which the notice of
meeting is mailed or the 30th day before the meeting, whichever is the closer
date to the meeting and (b) the record date for the determination of
stockholders entitled to receive payment of a dividend or an allotment of any
other rights shall be 5:00 p.m., Eastern Standard time, 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 (a) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (b) 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.
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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 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 interests of
the Corporation, and the Board of Directors may modify or abolish any such
reserve.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of
Directors may from time to time adopt, amend, revise or terminate any policy or
policies with respect to investments by the Corporation as it shall deem
appropriate in its sole discretion.
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ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a
seal by the Corporation. The seal shall contain the name of the Corporation and
the year of its incorporation and the words "Incorporated Maryland." The Board
of Directors may authorize one or more duplicate seals and provide for the
custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or
required to affix its seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a seal to place the word
"(SEAL)" adjacent to the signature of the person authorized to execute the
document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to
time, the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any individual who is a present or former director or officer of the
Corporation and who is made or threatened to be made a party to the proceeding
by reason of his or her service in that capacity or (b) any individual who,
while a director or officer of the Corporation and at the request of the
Corporation, serves or has served as a director, officer, partner or trustee of
such corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or other enterprise and who is made or threatened
to be made a party to the proceeding by reason of his or her service in that
capacity. The Corporation may, with the approval of its Board of Directors or
any duly authorized committee thereof, provide such indemnification and advance
for expenses to a person who served a predecessor of the Corporation in any of
the capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation. The indemnification and payment
of expenses provided in these Bylaws shall not be deemed exclusive of or limit
in any way other rights to which any person seeking indemnification or payment
of expenses may be or may become entitled under any bylaw, regulation,
insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of the Bylaws or charter of the Corporation
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the
Corporation or these Bylaws or pursuant to applicable law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at nor the purpose of any
meeting need be set forth in the waiver of notice, unless specifically required
by statute. The attendance of any person at any meeting shall constitute a
waiver of notice of such meeting, except where such person attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
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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.
ARTICLE XV
MISCELLANEOUS
Section 1. BOOKS AND RECORDS. The Corporation shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its stockholders and Board of Directors and of an executive or
other committee when exercising any of the powers of the Board of Directors. The
books and records of the Corporation may be in written form or in any other form
which can be converted within a reasonable time into written form for visual
inspection. Minutes shall be recorded in written form but may be maintained in
the form of a reproduction. The original or a certified copy of these Bylaws
shall be kept at the principal office of the Corporation.
Section 2. VOTING STOCK IN OTHER COMPANIES. Stock of other corporations or
associations, registered in the name of the Corporation, may be voted by the
chief executive officer, president, a vice-president, or a proxy appointed by
any of them. The Board of Directors, however, may by resolution appoint some
other person to vote such shares, in which case such person shall be entitled to
vote such shares upon the production of a certified copy of such resolution.
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