TRI-CONTINENTAL CORPORATION
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 places, which may be
within or outside the State of Maryland, 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. Subject to Section 3(b)(4) of this Article II, all
meetings of stockholders shall be held at the principal executive office of the
Corporation or at such other place as shall be set by the Board of Directors and
stated in the notice of the meeting.
SECTION 2. Annual Meeting. The Corporation shall not be required to hold
an annual meeting of stockholders in any year in which the election of directors
is not required to be acted upon under the Investment Company Act of 1940, as
amended (the "1940 Act"). In the event that the Corporation is required to hold
a meeting of stockholders to elect directors under the 1940 Act, such meeting
shall be designated the annual meeting of stockholders for that year and shall
be held on a date and at the time set by the Board of Directors in accordance
with the Maryland General Corporation Law (the "MGCL").
SECTION 3. Special Meetings.
(a) General. The chairman of the board, president, chief executive
officer 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 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 (or any successor provision) 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 (a) 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)
and 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, date and time as may be designated by the
chairman of the board, the president, the chief executive officer or the 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, date and time as
may be designated by the Board of Directors; provided, however, that the date of
any
2
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, the president, the chief executive
officer or the 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).
(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 Board of Directors, the chairman of the board, the
president or the chief executive officer may appoint 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) five 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 the Special Meeting Percentage.
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 five Business
Day period, or to take any
3
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 other day on which banking
institutions in the State of New York 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 or purposes 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, by
overnight delivery service, by transmitting the notice by electronic mail or any
other electronic means or by any other means permitted by Maryland law. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the stockholder at the stockholder's address as it
appears on the records of the Corporation, with postage thereon prepaid.
Subject to Section 10(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 5. Organization and Conduct. Every meeting of stockholders shall
be conducted by an individual appointed by the Board of Directors to be chairman
of the meeting or, in the absence of such appointment, by the chairman of the
board or, in the case of a vacancy in the office or absence of the chairman of
the board, by one of the following officers present at the meeting: the vice
chairman of the board, if there be one, the chief executive officer, if there be
one, the president, the vice presidents in their order of rank and seniority,
the secretary, the treasurer, 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
4
stockholders of record of the Corporation entitled to vote on such matter, their
duly authorized proxies or other such individuals as the chairman of the meeting
may determine; (d) limiting the time allotted to questions or comments by
participants; (e) determining when the polls should be opened and closed; (f)
maintaining order and security at the meeting; (g) removing any stockholder or
any other individual who refuses to comply with meeting procedures, rules or
guidelines as set forth by the chairman of the meeting; and (h) concluding the
meeting or recessing or adjourning the meeting to a later date and time and at a
place announced at the meeting. Unless otherwise determined by the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
SECTION 6. Quorum. At any meeting of stockholders, the presence in person
or by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting 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.
The stockholders present either in person or by proxy, at a meeting which
has been duly called and convened, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 7. Voting. Each director shall be elected by the affirmative vote
of the holders of a majority of the votes entitled to be cast thereon. Subject
to the rights of the holders of preferred stock, 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 8. Proxies. A stockholder may cast the votes entitled to be cast
by the shares of stock owned of record by the stockholder in person or by proxy
executed by the stockholder or by the stockholder's duly authorized agent in any
manner permitted or not prohibited by law. Such proxy or evidence of
authorization of such proxy shall be filed with the secretary of the Corporation
before or at the meeting. No proxy shall be valid more than eleven months after
its date unless otherwise provided in the proxy.
SECTION 9. 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
5
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, and
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 10. 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 other 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, or (iii) by any stockholder of the Corporation who was a stockholder
of record both at the time of giving of notice by the stockholder as provided
for in this Section 10(a) and at the time of the annual meeting, who is entitled
to vote at the meeting and who has complied with this Section 10(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 10, 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. In any year in
which an annual meeting is to be held, to be timely, a stockholder's notice
shall set forth all information required under this Section 10 and shall be
delivered to the secretary at the principal executive office of the Corporation
not earlier than the 150th day prior to the anniversary of the date of the
notice for the preceding annual meeting nor later than 5:00 p.m., Eastern Time,
on the 120th day prior to the anniversary of the date of the notice for the
preceding annual meeting; provided that, in the case of the 2006 annual meeting,
a stockholder's notice shall be delivered to the secretary at the principal
executive office of the Corporation after November 17, 2005 and prior to 5:00
p.m., Eastern Time, on December 31, 2005; and provided further, that in the
event that the date of the annual meeting (including the 2006 annual meeting) is
advanced or delayed by more than 30 days from the anniversary of the date of the
preceding 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 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 public announcement 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
6
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, (D) whether such stockholder believes any such
individual is, or is not, an "interested person" of the Corporation, as defined
in the 1940 Act and information regarding such individual that is sufficient, in
the discretion of the Board of Directors or any committee thereof or any
authorized officer of the Corporation, to make such determination and (E) 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 (or any successor provision) 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 10(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.
(3) In any year an annual meeting of stockholders is to be
held, notwithstanding anything in this subsection (a) of this Section 10 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 of such action at
least 130 days prior to the anniversary of the date of the notice for the
preceding annual meeting, a stockholder's notice required by this Section 10(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 office of the Corporation not later than 5:00 p.m.,
Eastern 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 10, "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.
7
(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 10 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 10. 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 this
Section 10(a) shall be delivered to the secretary at the principal executive
office of the Corporation not earlier than the 150th day prior to such special
meeting and not later than 5:00 p.m., Eastern 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.
(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 10. 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 10.
(2) Only such individuals who are nominated in accordance with
this Section 10 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 10. The chairman
of the meeting shall have the power to determine whether a nomination or any
other business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with this Section 10.
(3) For purposes of this Section 10, (a) the "date of the
notice for the preceding annual meeting" shall mean the date of the
Corporation's proxy statement released to stockholders in connection with the
preceding annual meeting 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
8
filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act or the 1940 Act.
(4) Notwithstanding the foregoing provisions of this Section
10, 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 10. Nothing in this Section 10
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.
ARTICLE III
DIRECTORS
SECTION 1. General Powers. Except as set forth in the charter, 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, the Board of Directors may
establish, increase or decrease the number of directors, provided that the
number thereof (exclusive of any class of directors which may be elected by
holders of preferred stock of the Corporation (the "Preferred Stock Directors"))
shall never be (a) less than the greater of three and the minimum number
required by the MGCL nor (b) more than 20, and further provided that the tenure
of office of a director shall not be affected by any decrease in the number of
directors. Each director, and each nominee for election as a director, shall be
a stockholder of the Corporation.
The directors, exclusive of the Preferred Stock Directors, shall be
divided into three classes, each class consisting as nearly as possible of
one-third of the entire Board of Directors and each class to hold office for the
term of three years, so that the term of office of one class of directors shall
expire in each year, but each director, of whatever class (other than Preferred
Stock Directors) and whenever elected, shall hold office until his successor
shall have been elected and shall qualify, or until his death, or until he shall
resign or shall have been removed.
The Board of Directors may reallocate Directors to one or more classes, in
such manner that after such allocation, each class shall consist as nearly as
possible of one-third of the entire Board of Directors, exclusive of Preferred
Stock Directors. In the case of any increase in the number of Directors, the
increased number shall be allocated to one or more classes in such manner that
after such increase, each class shall consist as nearly as possible of one-third
of the entire Board of Directors, exclusive of Preferred Stock Directors. In the
case of any decrease in the number of Directors, the decreased number shall be
allocated to one or more classes in such manner that after such decrease, each
class shall consist as nearly as possible of one-third of the entire Board of
Directors, exclusive of Preferred Stock Directors.
During any period when, by the terms of the charter of the Corporation,
the preferred stockholders, voting separately as a class, shall be entitled to
elect two Preferred Stock Directors, the number of directors of the Corporation
shall automatically be increased by two and the
9
vacancies in the Board thus created shall be filled by the vote of the preferred
stockholders as required by the terms of the charter of the Corporation.
Commencing with the date of the annual meeting of stockholders at which the
holders of the preferred stock are, by the terms of the charter of the
Corporation, no longer entitled to elect two Preferred Stock Directors, the
number of directors of the Corporation shall automatically be decreased by two.
Any director may give notice to the Board of Directors at any time of his
or her resignation therefrom.
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, which may be within or outside the State of Maryland, as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors. Regular meetings of the Board of Directors shall be held
from time to time at such places and times as provided by the Board of Directors
by resolution, without notice other than such resolution.
SECTION 4. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of a majority of the directors, the chairman
of the board, the chief executive officer, if one is appointed, or the
president. 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 notice other than such resolution.
SECTION 5. Notice. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, electronic mail, facsimile
transmission, United States mail or courier to each director at his or her
business or residence address. Notice by personal delivery, telephone,
electronic mail or facsimile transmission shall be given at least 24 hours prior
to the meeting. Notice by United States mail shall be given at least three days
prior to the meeting. Notice by courier shall be given at least two days prior
to the meeting. Telephone notice shall be deemed to be given when the director
or his or her agent is personally given such notice in a telephone call to which
the director or his or her agent is a party. Electronic mail notice shall be
deemed to be given upon transmission of the message to the electronic mail
address given to the Corporation by the director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of the message
to the number given to the Corporation by the director and receipt of a
completed answer-back indicating receipt. Notice by United States mail shall be
deemed to be given when deposited in the United States mail properly addressed,
with postage thereon prepaid. Notice by courier shall be deemed to be given when
deposited with or delivered to a courier properly addressed. Neither the
business to be transacted at, nor the purpose of, any annual, regular or special
meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these Bylaws.
SECTION 6. Quorum. A majority of the directors shall constitute a quorum
for transaction of business at any meeting of the Board of Directors, provided
that, if less than a
10
majority of such directors are present at said meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice, and provided further that if, pursuant to applicable law, the charter of
the Corporation or these Bylaws, the vote of a majority of a particular group of
directors is required for action, a quorum must also include a majority of such
group.
The directors present at a meeting which has been duly called and convened
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough directors to leave less than a quorum.
SECTION 7. Voting. The action of the majority of the directors present at
a meeting at which a quorum is present shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable law, the charter or these Bylaws. If enough directors have
withdrawn from a meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of that number of directors necessary to
constitute a quorum at such meeting shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable law, the charter or these Bylaws.
SECTION 8. Organization. At each meeting of the Board of Directors, the
chairman of the board or, in the absence of the chairman, the vice chairman of
the board, if any, shall act as chairman of the meeting. In the absence of both
the chairman and vice chairman of the board, the chief executive officer or in
the absence of the chief executive officer, the president or in the absence of
the president, a director chosen by a majority of the directors present, shall
act as chairman of the meeting. The secretary or, in his or her absence, an
assistant secretary of the Corporation, or in the absence of the secretary and
all assistant secretaries, a person appointed by the chairman of the meeting,
shall act as secretary of the meeting.
SECTION 9. 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 10. Written 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 to such action is given in writing or by electronic
transmission by each director and is filed with the minutes of proceedings of
the Board of Directors.
SECTION 11. 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, if any. Except as may
be provided by the Board in setting the terms of any class or series of
preferred stock, (a) any vacancy on the Board of Directors may be filled only by
a majority of the remaining directors, even if the remaining directors do not
constitute a quorum and (b) any director elected to fill a vacancy shall serve
for the remainder of the full term of the class in which the vacancy occurred
and until a successor is elected and qualifies.
11
SECTION 12. 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 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. No
Director shall receive any stated compensation or fees from the Corporation for
his services as a Director if such Director is, otherwise than by reason of his
being such a Director, an "interested person" (as such term is defined by the
1940 Act) of the Corporation or of its investment adviser or principal
underwriter.
ARTICLE IV
COMMITTEES
SECTION 1. Appointment. The Board of Directors may appoint from among its
members an Executive Committee, an Audit Committee, a Board Operations
Committee, a Nominating Committee and other committees, composed of two or more
directors, to serve at the pleasure of the Board of Directors. Any director may
give notice to the Board of Directors at any time of his or her resignation from
any committee on which he or she serves.
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. 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 or, in
the absence of a chairman, any two members of any committee (if there are at
least two members of the Committee) may fix the time and place of its meeting
unless the Board shall otherwise provide. In the absence of any member of any
such committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another director to act in the place of such
absent member. Each committee shall keep minutes of its proceedings.
SECTION 4. Telephone Meetings. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone or
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. Written 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,
12
if a consent to such action in writing or by electronic transmission is given by
each member of the committee and 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. Subject to the
power of the Board of Directors, the members of a committee shall have the power
to fill any vacancies on such committee.
ARTICLE V
CHAIRMAN OF THE BOARD OF DIRECTORS
AND OFFICERS
SECTION 1. General Provisions. The officers of the Corporation shall
include a president, a secretary and a treasurer and may include a chief
executive officer, one or more vice presidents, 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 it 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, 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. Any two or more offices except president and vice
president may be held by the same person. Election of an officer or agent shall
not of itself create contract rights between the Corporation and such officer or
agent.
SECTION 2. Removal and Resignation. Any officer or agent of the
Corporation may be removed, with or without cause, by the Board of Directors if
in its judgment the best interests of the Corporation would be served thereby,
but such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Any officer of the Corporation may resign at any time by
giving written notice of his or her resignation to the Board of Directors, the
chairman of the board, the president or the secretary. Any resignation shall
take effect immediately upon its receipt or at such later time specified in the
notice of resignation. The acceptance of a resignation shall not be necessary to
make it effective unless otherwise stated in the resignation. Such resignation
shall be without prejudice to the contract rights, if any, of the Corporation.
SECTION 3. Vacancies. A vacancy in any office may be filled by the Board
of Directors for the balance of the term.
SECTION 4. Chairman of the Board of Directors. The Board of Directors may
designate a chairman of the board and a vice chairman of the board, who shall
not, solely by reason of such designation, be officers of the Corporation but
shall have such powers and duties as determined by the Board of Directors from
time to time.
13
SECTION 5. Chief Executive Officer. The Board of Directors may designate a
chief executive officer. 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 in the name of the Corporation, 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 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. President. In the absence of the designation of a chief
executive officer by the Board of Directors, the president shall be the chief
executive 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 8. 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, the chief executive officer or
the Board of Directors. The Board of Directors may designate one or more vice
presidents as executive vice president, senior vice president or as vice
president for particular areas of responsibility.
SECTION 9. 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 10. Treasurer. The treasurer 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
14
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.
SECTION 11. 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 12. 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
STOCK
SECTION 1. Certificates. Except as may be otherwise provided by the Board
of Directors, stockholders of the Corporation are not entitled to certificates
representing the shares of stock held by them. In the event that the Corporation
issues shares of stock represented by certificates, such certificates shall be
signed by the officers of the Corporation in the manner permitted by the MGCL
and contain the statements and information required by the MGCL. In the event
that the Corporation issues shares of stock without certificates, the
Corporation shall provide to record holders of such shares a written statement
of the information required by the MGCL to be included on stock certificates.
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.
15
SECTION 3. Replacement Certificate. The president, treasurer, secretary or
any other 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 the close of business on the day the record date is fixed and shall be
not more than 90 days and, in the case of a meeting of stockholders, not less
than ten days, before the date on which the meeting or particular action
requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that
the stock transfer books shall be closed for a stated period but not longer than
20 days. If the stock transfer books are closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for
the determination of stockholders, (a) the record date for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day on which the notice of meeting is mailed
or the 30th day before the meeting, whichever is the closer date to the meeting;
and (b) the record date for the determination of stockholders entitled to
receive payment of a dividend or an allotment of any other rights shall be the
close of business on the day on which the resolution of the directors, declaring
the dividend or allotment of rights, is adopted.
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, which may
be within or outside the State
16
of Maryland, as determined by the Board of Directors, 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 VII
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 VIII
DISTRIBUTIONS
SECTION 1. Authorization. Dividends and other distributions upon the stock
of the Corporation may be authorized by the Board of Directors, subject to the
provisions of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the Corporation, subject
to the provisions of law and the charter.
SECTION 2. Contingencies. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
available for dividends or other distributions such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve.
ARTICLE IX
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.
17
ARTICLE X
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law, as 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 any such 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 any
such 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 termination of any
claim, action, suit or other proceeding involving any person, by judgment,
settlement (whether with or without court approval) or conviction or upon a plea
of guilty or nolo contendere, or its equivalent, shall not create a presumption
that such person did not meet the standards of conduct required for
indemnification or payment of expenses to be required or permitted under
Maryland law, these Bylaws or the charter of the Corporation. Any
indemnification or advance of expenses made pursuant to this Article shall be
subject to applicable requirements of the 1940 Act. 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 XI
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.
18
ARTICLE XII
BOOKS AND RECORDS
The books of account, stock ledger, and other documents, books and records
of the Corporation shall be kept at such place or places, which may be within or
outside the State of Maryland, as determined by the Board of Directors.
A stockholder that is otherwise eligible under applicable law to inspect
the Corporation's books of account, stock ledger, or other specified documents
of the Corporation shall have no right to make such inspection if the Board of
Directors determines that such stockholder has an improper purpose for
requesting such inspection.
ARTICLE XIII
AMENDMENT OF BYLAWS
The stockholders shall have full power to alter or repeal these Bylaws, or
any provision thereof, at any stated meeting as part of the general business of
such meeting, or at any special meeting where notice of the proposed alteration
or repeal has been given. The Board of Directors may alter or repeal Bylaws or
make Bylaws but any Bylaws of the Corporation may be altered or repealed by the
stockholders.
19