EXHIBIT 3.2
BYLAWS
OF
HARTMAN COMMERCIAL PROPERTIES REIT
INDEX
ARTICLE I. Offices............................................................1
Section 1.1 Principal Office....................................1
Section 1.2 Other Offices.......................................1
ARTICLE II. Meetings of Shareholders..........................................1
Section 2.1 Place of Meetings...................................1
Section 2.2 Annual Meeting......................................1
Section 2.3 Special Meetings....................................1
Section 2.4 Notice of Meetings..................................1
Section 2.5 Business at Annual Meeting..........................2
Section 2.6 Voting Lists........................................3
Section 2.7 Quorum..............................................3
Section 2.8 Organization........................................4
Section 2.9 Proxies.............................................4
Section 2.10 Voting of Shares....................................5
Section 2.11 Voting of Shares by Certain Holders.................5
Section 2.12 Election of Trust Managers..........................6
Section 2.13 Telephone Meetings..................................6
Section 2.14 Action Without Meeting..............................6
Section 2.15 Inspectors and Voting Procedures....................6
ARTICLE III. Trust Managers...................................................7
Section 3.1 Powers and Responsibilities.........................7
Section 3.2 Number and Qualification............................7
Section 3.3 Election and Term of Office.........................7
Section 3.4 Nomination of Trust Managers........................7
Section 3.5 Resignation.........................................9
Section 3.6 Removal.............................................9
Section 3.7 Vacancies...........................................9
Section 3.8 Bond Not Required, Time Commitment..................9
Section 3.9 Compensation.......................................10
Section 3.10 Execution of Documents.............................10
ARTICLE IV. Meetings of the Trust Managers...................................10
Section 4.1 Place of Meetings..................................10
Section 4.2 Annual Meeting.....................................10
Section 4.3 Regular Meetings...................................10
Section 4.4 Special Meetings...................................10
Section 4.5 Quorum and Action..................................10
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Section 4.6 Presumption of Assent to Action....................11
Section 4.7 Telephone Meetings.................................11
Section 4.8 Action Without Meeting.............................11
Section 4.9 Minutes............................................11
Section 4.10 Interest of Trust Managers.........................11
Section 4.11 Right of Trust Managers and Officers to Own
Shares or Other Property and to Engage in Other
Business...........................................11
Section 4.12 Transactions and Contracts Between Trust
Managers and the Trust.............................12
Section 4.13 Persons Dealing with Trust Managers or Officers....12
Section 4.14 Reliance ..........................................13
Section 4.15 Liability of Trust Managers........................13
ARTICLE V. Committees of the Trust Managers..................................13
Section 5.1 Membership and Authorities.........................13
Section 5.2 Minutes and Rules of Procedure.....................15
Section 5.3 Vacancies..........................................15
Section 5.4 Telephone Meetings.................................15
Section 5.5 Action Without Meeting.............................15
ARTICLE VI. Officers ........................................................15
Section 6.1 Number ............................................15
Section 6.2 Election, Term of Office and Qualification.........15
Section 6.3 Subordinate Officers...............................15
Section 6.4 Resignation........................................16
Section 6.5 Removal ...........................................16
Section 6.6 Vacancies..........................................16
Section 6.7 The Chairman of the Board..........................16
Section 6.8 The President......................................16
Section 6.9 The Vice Presidents................................17
Section 6.10 The Secretary......................................17
Section 6.11 Assistant Secretaries..............................17
Section 6.12 The Treasurer......................................17
Section 6.13 Assistant Treasurers...............................18
Section 6.14 Treasurer's Bond...................................18
Section 6.15 Salaries ..........................................18
Section 6.16 Execution of Documents.............................18
ARTICLE VII. Trust Shares....................................................18
Section 7.1 Share Certificates.................................18
Section 7.2 Lost or Destroyed Certificates.....................19
Section 7.3 Transfer of Shares.................................19
Section 7.4 Ownership of Shares................................19
Section 7.5 Closing of Transfer Books..........................19
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Section 7.6 Dividends..........................................20
Section 7.7 Reserves ..........................................20
ARTICLE VIII. Indemnification................................................20
Section 8.1 General ...........................................20
Section 8.2 Insurance..........................................21
ARTICLE IX. General Provisions...............................................21
Section 9.1 General Policies...................................21
Section 9.2 Limited Liability of Shareholders..................21
Section 9.3 Waiver of Notice...................................21
Section 9.4 Seal...............................................21
Section 9.5 Fiscal Year........................................22
Section 9.6 Checks, Notes, etc.................................22
Section 9.7 Examination of Books and Records...................22
Section 9.8 Voting of Voting Securities Held by the Trust......22
Section 9.9 Number, Gender, Etc................................22
ARTICLE X. Amendments .......................................................22
Section 10.1 Amendment of Bylaws................................22
ARTICLE XI. Subject to All Laws..............................................23
Section 11.1 Subject to All Laws................................23
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HARTMAN COMMERCIAL PROPERTIES REIT
BYLAWS
ARTICLE I.
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the Trust shall be
in the City of Houston, Texas, or at such other location as the Trust Managers
may from time to time determine.
Section 1.2 Other Offices. The Trust may also have offices at such other
places, both within and without the State of Texas, as the Trust Managers may
from time to time determine or the business of the Trust may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. The Trust Managers may designate any
place, either within or without the State of Texas, as the place of meeting for
any annual meeting or for any special meeting called by the Trust Managers. A
waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place, either within or without the State of Texas, as the place
for the holding of such meeting. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the principal office
of the Trust.
Section 2.2 ANNUAL MEETING. The annual meeting of shareholders shall be
held at such time, on such day and at such place as may be designated by the
Trust Managers. At the annual meeting, the Shareholders shall, subject to
Section 2.5 and Section 3.3 of these Bylaws, elect Trust Managers and transact
such other business as may properly be brought before the meeting. Failure to
hold the annual meeting at the designated time shall not cause the dissolution
of the Trust.
Section 2.3 SPECIAL MEETINGS. Special meetings of the shareholders for
any purpose or purposes, unless otherwise prescribed by law or by the
Declaration of Trust, may be called by the Trust Managers, any officer of the
Trust or the holders of at least five percent of all of the shares entitled to
vote at the meetings. Business transacted at all special meetings shall be
confined to the purpose or purposes stated in the notice of special meeting.
Section 2.4 NOTICE OF MEETINGS. Written or printed notice of all
meetings of shareholders stating the place, day and hour thereof, and in the
case of a special meeting the purpose or
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purposes for which the meeting is called, shall be personally delivered or
mailed, not less than 10 days nor more than 60 days prior to the date of the
meeting, to the shareholders of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States Mail addressed to the shareholder at his or her address as it appears on
the share transfer books of the Trust and the postage shall be prepaid. Personal
delivery of any such notice to any officer of a corporation or association, or
to any member of a partnership, shall constitute delivery of such notice to such
corporation, association or partnership.
Section 2.5 BUSINESS AT ANNUAL MEETING. No business may be transacted at
an annual meeting of shareholders, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Trust Managers (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the direction
of the Trust Managers (or any duly authorized committee thereof) or (c)
otherwise properly brought before the annual meeting by any shareholder of the
Trust (i) who is a shareholder of record on the date of the giving of the notice
provided for in this Section 2.5 and on the record date for the determination of
shareholders entitled to vote at such annual meeting, and (ii) who complies with
the notice procedures set forth in this Section 2.5.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the Secretary of
the Trust. To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal office of the Trust not
less than 60 days nor more than 90 days prior to the date of the applicable
annual meeting of shareholders, provided, however, that in the event that less
than 70 days notice or prior public disclosure of the date of the meeting be
given or made, notice by the shareholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the applicable annual meeting was mailed or such public
disclosure of the date of such annual meeting was made, whichever first occurs.
For purposes of this Section 2.5, the date of a public disclosure shall include,
but not be limited to, the date on which such disclosure is made in a press
release reported by the Dow Jones News Services, the Associated Press or any
comparable news service or in a document publicly filed by the Trust with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) (or the
rules and regulations promulgated thereunder) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
To be in proper written form, a shareholder's notice to the Secretary
must set forth as to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such shareholder, (iii) the
number of shares of the Trust that are owned beneficially or of record by such
shareholder, (iv) a description of all arrangements or understandings between
such shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business, and (v) a
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representation that such shareholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.5; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.5 shall be deemed to preclude discussion
by any shareholder of any such business. If the presiding officer of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the presiding officer shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted at such meeting.
Section 2.6 VOTING LISTS. The officer or agent having charge of the
share transfer books for shares of the Trust shall make available for inspection
by shareholders, at least 10 days before each meeting of the shareholders, a
complete list of shareholders entitled to vote at such meeting or any
adjournment thereof, arranged in alphabetical order, with the address of each
and the number of shares held by each. The list shall be kept on file at the
registered office of the Trust and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder for the duration of the meeting. The
original share transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meeting of shareholders. Failure to comply with this Section 2.6 with respect to
any meeting of shareholders shall not affect the validity of any action taken at
such meeting.
Section 2.7 QUORUM. The holders of a majority of the shares entitled to
vote, present in person or represented by proxy, shall constitute a quorum at
all meetings of the shareholders for the transaction of business, except as
otherwise provided by law or by the Declaration of Trust. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote at such meeting, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time without notice other than announcement at the meeting until a quorum shall
be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally convened. The shareholders present at a
duly organized meeting at which a quorum was present may continue to transact
business until adjournment notwithstanding the withdrawal of enough shareholders
to leave less than a quorum present, provided that there remain at such meeting
the holder or holders of at least one-third of the shares issued and outstanding
and entitled to vote thereat, present in person or represented in the manner
specified above. A holder of a share shall be treated as being present at a
meeting if the holder of such share is (i) present in person at the meeting, or
(ii) represented at the meeting by a valid proxy, whether the instrument
granting such proxy is
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marked as casting a vote or abstaining, is left blank or does not empower such
proxy to vote with respect to some or all matters to be voted upon at the
meeting.
Section 2.8 ORGANIZATION. (a) The Chairman of the Board, if one shall be
elected, shall preside at all meetings of the shareholders. In the absence of
the Chairman of the Board or should one not be elected, the following officers
shall preside in order of priority: President, Chief Executive Officer, Chief
Operating Officer, Chief Financial Officer, Vice President-Legal, or Secretary.
If no such officer is available, the meeting shall be adjourned until such an
officer is available to preside over the meeting. The presiding officer shall
set the agenda for the meeting, shall conduct all aspects of the meeting and
shall establish and interpret the rules of order for the conduct of the meeting.
(b) The Secretary of the Trust shall act as secretary at all
meetings of the shareholders. In his or her absence, an Assistant Secretary
shall so act and in the absence of all of these officers, the presiding officer
may appoint any person to act as secretary of the meeting.
Section 2.9 PROXIES. (a) At any meeting of the shareholders, every
shareholder entitled to vote at such meeting shall be entitled to vote in person
or by proxy executed in writing by such shareholder or by his or her duly
authorized attorney-in-fact. Proxies shall be filed with the Secretary or Trust
Managers immediately after the meeting has been called to order.
(b) No proxy shall be valid after 11 months from the date of its
execution unless such proxy otherwise provides.
(c) A proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an interest.
A proxy which is revocable as aforesaid may be revoked at any time by filing
with the Secretary an instrument revoking it or a duly executed proxy bearing a
later date. Any revocable proxy which is not so revoked shall, subject to
paragraph (b) above, continue in full force and effect. Proxies coupled with an
interest include the appointment as proxy of:
(i) a pledgee;
(ii) a person who purchased or agreed to purchase, or owns or
holds an option to purchase, the shares;
(iii) a creditor of the Trust who extended the Trust credit
under terms requiring the appointment;
(iv) an employee of the Trust whose employment contract
requires the appointment; or
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(v) a party to a voting agreement created under Subsection
(B) of Section 13.20 of the Texas REIT Act.
(d) In the event that any instrument in writing shall designate two
or more persons to act as proxies, a majority of such persons present at the
meeting or, if only one shall be present, then that one, shall have and may
exercise all of the powers conferred by such written instrument upon all the
persons so designated unless the instrument shall otherwise provide.
Section 2.10 VOTING OF SHARES. Except as otherwise provided by law, the
Declaration of Trust or these Bylaws, each shareholder shall be entitled at each
meeting of shareholders to one vote on each matter submitted to a vote at such
meeting for each share having voting rights registered in his or her name on the
books of the Trust at the time of the closing of the share transfer books (or at
the record date) for such meeting. When a quorum is present at any meeting (and
notwithstanding the subsequent withdrawal of enough shareholders to leave less
than a quorum present) in accordance with Section 2.7 of these Bylaws, the votes
of holders of a majority of the shares entitled to vote, present in person or
represented by proxy, shall decide any matter submitted to such meeting, unless
the matter is one upon which by law or by express provision of the Declaration
of Trust or these Bylaws the vote of a greater number is required, in which case
the vote of such greater number shall govern and control the decision of such
matter. In determining the number of shares entitled to vote, shares abstaining
from voting or not voted on a matter (including elections) will not be treated
as entitled to vote. The provisions of this Section 2.10 will govern with
respect to all votes of shareholders except as otherwise provided for in these
Bylaws or the Declaration of Trust or by some specific statutory provision
superseding the provisions contained in these Bylaws or the Declaration of
Trust.
Section 2.11 VOTING OF SHARES BY CERTAIN HOLDERS. (a) Shares standing in
the name of another business organization may be voted by such officer, agent or
proxy as the organizational documents of such organization may authorize or, in
the absence of such authorization, as may be determined by the governing body of
such organization.
(b) Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by proxy, without a
transfer of such shares into his or her name so long as such shares forming a
part of an estate are in the possession and form a part of the estate being
served by him or her. Shares standing in the name of a trustee may be voted by
him or her, either in person or by proxy, but no trustee shall be entitled to
vote shares held by him or her without a transfer of such shares into his or her
name as trustee.
(c) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver, without the transfer thereof into his or her name if authority to
do so is contained in an appropriate order of the court by which such receiver
was appointed.
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(d) A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 2.12 ELECTION OF TRUST MANAGERS. At each election for Trust
Managers, each shareholder entitled to vote at such election shall, unless
otherwise provided by the Declaration of Trust or by applicable law, have the
right to vote the number of shares owned by such shareholder for as many persons
as there are to be elected and for whose election he or she has a right to vote.
Unless otherwise provided by the Declaration of Trust, no shareholder shall have
the right or be permitted to cumulate votes on any basis.
Section 2.13 TELEPHONE MEETINGS. Shareholders may participate in and
hold a meeting of the shareholders by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting, except where a
person participates in the 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.
Section 2.14 ACTION WITHOUT MEETING. Any action required by law, the
Declaration of Trust or these Bylaws to be taken at a meeting of the
shareholders (or any action which may be taken at a meeting of the shareholders)
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof, and such consent shall have the same
force and effect as a unanimous vote of the shareholders.
Section 2.15 INSPECTORS AND VOTING PROCEDURES. (a) The Trust may, in
advance of any meeting of shareholders, appoint one or more inspectors to act at
the meeting and make a written report thereof. The Trust may designate one or
more persons as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of shareholders, the
person presiding at the meeting shall appoint one or more inspectors to act at
the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist them in the performance of their
duties.
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(c) The date and time of the opening and closing of the polls for
each matter upon which the shareholders will vote at a meeting shall be
announced at the meeting. No ballots, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless a court of appropriate jurisdiction, upon
application by a shareholder, determines otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors may examine and consider such records or factors as allowed by
the Texas Real Estate Investment Trust Act (the "Texas REIT Act").
ARTICLE III.
TRUST MANAGERS
Section 3.1 POWERS AND RESPONSIBILITIES. The business and affairs of the
Trust shall be managed under the direction of its Trust Managers who may
exercise all such powers of the Trust and do all such lawful acts and things as
are not by statute, the Declaration of Trust or these Bylaws directed or
required to be exercised or done by the shareholders. The enumeration of any
specific power or authority herein shall not be construed as limiting the
aforesaid powers or the general powers or authority or any other specified power
or authority conferred herein upon the Trust Managers.
Section 3.2 NUMBER AND QUALIFICATION. There shall at all times be no
less than three nor more than ten Trust Managers who, subject to Section 3.3
below, shall be elected annually by the shareholders. Subject to any limitations
specified by law or in the Declaration of Trust, the number of Trust Managers
may be fixed from time to time by resolution adopted by a majority of the Trust
Managers. No decrease in the number of Trust Managers shall have the effect of
shortening the term of any incumbent Trust Manager. Trust Managers need not be
shareholders or residents of the State of Texas.
Section 3.3 ELECTION AND TERM OF OFFICE. Trust Managers shall be elected
at the annual meeting of the shareholders (except as provided in Section 3.7) by
the affirmative vote of the holders of a majority of the shares of the Trust
present in person or represented by proxy at such meeting; provided, however,
that any Trust Manager that has been previously elected as a Trust Manager by
the shareholders who is not re-elected by such majority vote at a subsequent
annual meeting shall nevertheless remain in office until his or her successor is
elected and qualified. Each Trust Manager shall hold office until his or her
successor is elected and qualified, or until his or her death, resignation or
removal in the manner provided in these Bylaws.
Section 3.4 NOMINATION OF TRUST MANAGERS. Only persons who are nominated
in accordance with the following procedures shall be eligible for election as
Trust Managers of the Trust. Nominations of persons for election as Trust
Managers may be made at any annual meeting of shareholders (a) by or at the
direction of the Trust Managers (or any duly authorized
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committee thereof) or (b) by any shareholder of the Trust (i) who is a
shareholder of record on the date of the giving of the notice provided for in
this Section 3.4 and on the record date for the determination of shareholders
entitled to vote at such annual meeting, and (ii) who complies with the notice
procedures set forth in this Section 3.4.
In addition to any other applicable requirements, for a nomination to be
made by a shareholder, such shareholder must have given timely notice thereof in
proper written form to the Secretary of the Trust. To be timely, a shareholder's
notice to the Secretary must be delivered to or mailed and received at the
principal offices of the Trust not less than 60 days nor more than 90 days prior
to the date of the applicable annual meeting of shareholders; provided, however,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made, notice by the shareholder to be timely
must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the applicable annual
meeting was mailed or such public disclosure of the date of such annual meeting
was made, whichever first occurs. For purposes of this Section 3.4, the date of
a public disclosure shall include, but not be limited to, the date on which such
disclosure is made in a press release reported by the Dow Jones News Services,
the Associated Press or any comparable national news service or in a document
publicly filed by the Trust with the Securities and Exchange Commission pursuant
to Sections 13, 14 or 15(d) (or the rules and regulations promulgated
thereunder) of the Exchange Act.
To be in proper written form, a shareholder's notice to the Secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election as a Trust Manager (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the number of shares of the Trust that are owned beneficially
or of record by the person, and (iv) any other information relating to the
person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitation of proxies for
election of Trust Managers pursuant to Section 14 of the Exchange Act, and (b)
as to the shareholder giving the notice (i) the name and record address of such
shareholder, (ii) the number of shares of the Trust that are owned beneficially
or of record by such shareholder, (iii) a description of all arrangements or
understandings between such shareholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such shareholders, (iv) a representation that such shareholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in the notice, and (v) any other information relating to such shareholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
Trust Managers pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
Trust Manager if elected.
No person shall be eligible for election as a Trust Manager of the Trust
unless nominated in accordance with the procedures set forth in this Section
3.4. If the presiding officer of the
8
meeting determines that a nomination was not made in accordance with the
foregoing procedures, the presiding officer shall declare to the meeting that
the nomination was defective and such defective nomination shall be disregarded.
Section 3.5 RESIGNATION. Any Trust Manager may resign at any time by
giving written notice to the remaining Trust Managers. Such resignation shall
take effect at the time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. A Trust Manager judged incompetent or for whom a guardian or
conservator has been appointed, shall be deemed to have resigned as of the date
of such adjudication or appointment.
Section 3.6 REMOVAL. Trust Manager may be removed at any time with or
without cause by the vote of holders of shares representing two-thirds of the
total votes authorized to be cast by shares then outstanding and entitled to
vote thereon. Upon the resignation or removal of any Trust Manager, or if the
Trust Manager otherwise ceases to be a Trust Manager, he or she shall execute
and deliver such documents as the remaining Trust Managers shall require for the
conveyance of any Trust property held in his or her name, shall account to the
remaining Trust Managers as they require for all property which such person
holds as Trust Manager and shall thereupon be discharged as Trust Manager. Upon
the incapacity or death of any Trust Manager, his or her legal representative
shall perform the acts set forth in the preceding sentence and the discharge
mentioned therein shall run to such legal representative and to the
incapacitated Trust Manager or the estate of the deceased Trust Manager, as the
case may be.
Section 3.7 VACANCIES. If there is an increase in the number of Trust
Managers or if any or all of the Trust Managers cease to be Trust Managers
hereunder, for any reason, such event shall not terminate the Trust or affect
its continuity. Until vacancies are filled, the remaining Trust Manager or Trust
Managers may exercise the powers of the Trust Managers hereunder. Vacancies may
be filled by successor Trust Managers either appointed by a majority of the
remaining Trust Managers (or by the sole remaining Trust Manager, if applicable)
or by the affirmative vote of the holders of a majority of the shares of the
Trust present in person or represented by proxy at an annual or special meeting
of the shareholders. Any Trust Manager elected to fill a vacancy shall hold
office until the next annual meeting for the election of Trust Managers. The
election of a successor Trust Manager shall be considered an amendment to the
Declaration of Trust.
Section 3.8 BOND NOT REQUIRED, TIME COMMITMENT. Unless otherwise
required by law, no Trust Manager shall be required to give bond, surety or
security in any jurisdiction for the performance of his or her duties or
obligations to the Trust. No Trust Manager shall be required to devote his or
her entire time to the business and affairs of the Trust.
Section 3.9 COMPENSATION. Trust Managers may receive compensation for
their services to the Trust as may be determined from time to time by the Trust
Managers. The Trust Managers may delegate to any committee the power to fix from
time to time the compensation of
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Trust Managers. Officers of the Trust who also serve as Trust Managers shall not
receive compensation for their service as Trust Managers.
Section 3.10 EXECUTION OF DOCUMENTS. Each Trust Manager and any one of
them is authorized to execute on behalf of the Trust any document or instrument
of any nature whatsoever, provided that the execution by the Trust of any such
document or instrument shall have been previously authorized by such action of
the Trust Managers as may be required by statute, the Declaration of Trust or
these Bylaws.
ARTICLE IV.
MEETINGS OF THE TRUST MANAGERS
Section 4.1 PLACE OF MEETINGS. The Trust Managers of the Trust may hold
their meetings, both regular and special, either within or without the State of
Texas.
Section 4.2 ANNUAL MEETING. The annual meeting of the Trust Managers
shall be held immediately following the adjournment of the annual meeting of the
shareholders and no notice of such meeting shall be necessary to the Trust
Managers in order to legally constitute the meeting, provided a quorum shall be
present, or they may meet at such time and place as shall be fixed by the
consent in writing of all of the Trust Managers.
Section 4.3 REGULAR MEETINGS. Regular meetings of the Trust Managers, in
addition to the annual meetings referred to in Section 4.2, may be held without
notice at such time and place as shall from time to time be determined by the
Trust Managers.
Section 4.4 SPECIAL MEETINGS. Special meetings of the Trust Managers may
be called by the Chairman of the Board, if one shall be elected, or by the
President, if a Chairman of the Board is not elected, on three business day's
notice (oral or written) to each Trust Manager. Special meetings shall be called
by the Chairman of the Board (if one shall be elected), the President or the
Secretary on like notice on the written request of any Trust Manager. Neither
the purpose of, nor the business to be transacted at, any special meeting of the
Trust Managers need be specified in the notice or waiver of notice of such
meeting. Attendance of a Trust Manager at a meeting shall constitute a waiver of
notice of such meeting except where a Trust Manager attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
Section 4.5 QUORUM AND ACTION. At all meetings of the Trust Managers,
the presence of a majority of the Trust Managers shall be necessary and
sufficient to constitute a quorum for the transaction of business. The act of a
majority of the Trust Managers at any meeting at which a quorum is present shall
be the act of the Trust Managers unless the act of a greater number is required
by law, the Declaration of Trust or these Bylaws. If a quorum shall not be
present at
10
any meeting of Trust Managers, the Trust Managers present may adjourn the
meeting from time to time without notice other than announcement at the meeting
until a quorum shall be present.
Section 4.6 PRESUMPTION OF ASSENT TO ACTION. A Trust Manager who is
present at a meeting of the Trust Managers at which action on any Trust matter
is taken shall be presumed to have assented to the action taken unless his or
her dissent shall be entered in the minutes of the meeting or unless such Trust
Manager (i) files a written dissent to such action with the Secretary of the
meeting before the adjournment thereof or (ii) forwards such dissent by
registered mail to the Secretary of the Trust immediately after the adjournment
of the meeting. Such right to dissent shall not apply to a Trust Manager who
voted in favor of such action.
Section 4.7 TELEPHONE MEETINGS. Trust Managers may participate in and
hold a meeting of the Trust Managers by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
4.7 shall constitute presence in person at such meeting, except where a person
participates in the 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.
Section 4.8 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of the Trust Managers may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all the
Trust Managers, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
Section 4.9 MINUTES. The Trust Managers shall keep regular minutes of
their proceedings. The minutes shall be placed in the minute book of the Trust.
Section 4.10 INTEREST OF TRUST MANAGERS. With respect to the actions of
the Trust Managers, Trust Managers who have any direct or indirect interest in
connection with any matter being acted upon may be counted for all quorum
purposes under this Article IV.
Section 4.11 RIGHT OF TRUST MANAGERS AND OFFICERS TO OWN SHARES OR OTHER
PROPERTY AND TO ENGAGE IN OTHER BUSINESS. Any Trust Manager or officer of the
Trust may acquire, own, hold and dispose of shares of the Trust for his or her
individual account, and may exercise all rights of a shareholder to the same
extent and in the same manner as if he or she were not a Trust Manager or
officer of the Trust. Except as provided specifically to the contrary in a
written agreement with the Trust, any Trust Manager or officer of the Trust may,
in a capacity other than that of Trust Manager or officer of the Trust, have
business interests and engage in business activities similar to or in addition
to those relating to the Trust, which interests and activities may be similar to
and competitive with those of the Trust and may include the acquisition,
syndication, holding, management, development, operation or disposition, for his
or her own account or for the account of others, of interests in mortgages,
interests in real property, or interests in entities engaged in the real estate
business. Except as provided specifically to the contrary in a written agreement
with the Trust, each Trust Manager and officer of the Trust shall
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be free of any obligation to present to the Trust any investment opportunity
which comes to him or her in any capacity other than solely as Trust Manager or
agent of the Trust, even if such opportunity is of a character which, if
presented to the Trust, could be exploited by the Trust. Subject to the
provisions of Article III hereof, any Trust Manager or officer of the Trust may
be a trustee, officer, director, shareholder, partner, member, advisor or
employee of, or otherwise have a direct or indirect interest in any person who
may be engaged to render advice or services to the Trust, and may receive
compensation from such person as well as compensation as Trust Manager or
officer or otherwise hereunder.
Section 4.12 TRANSACTIONS AND CONTRACTS BETWEEN TRUST MANAGERS AND THE
TRUST. Subject to the limitations set forth in the Declaration of Trust, no
contract or transaction between the Trust and one or more of its Trust Managers
or officers, or between the Trust and any other real estate investment trust,
partnership, association or other organization in which one or more of the Trust
Managers or officers are trust managers, directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, solely
because the Trust Manager or officer is present at or participates in the
meeting of the Trust Manager or committee thereof which authorizes the contract
or transaction, or solely because his, her, or their votes are counted for such
purpose, if:
(a) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the Trust
Managers or the committee, and the Trust Managers or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority of
the disinterested Trust Managers, even though the disinterested Trust Managers
constitute less than a quorum; or
(b) The material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
(c) The contract or transaction is fair to the Trust as of the time
it is authorized, approved or ratified by the Trust Managers, a committee
thereof, or the shareholders.
Section 4.13 PERSONS DEALING WITH TRUST MANAGERS OR OFFICERS. Any act of
the Trust Managers or officers of the Trust purporting to be done in their
capacity as such shall, as to any person dealing with such Trust Managers or
officers, conclusively be deemed to be within the purposes of the Trust and
within the powers of the Trust Managers or officers. No person dealing with the
Trust Managers or any of them or with the officers of the Trust or any of them,
shall be bound to see to the application of any funds or property passing into
their hands or control. The receipt of the Trust Managers or any of the officers
of the Trust of money or other consideration shall be binding upon the Trust.
Section 4.14 Reliance. Trust Managers and officers of the Trust shall
not be liable for any claims or damages that may result from their acts in the
discharge of any duty imposed or
12
power conferred upon them by the Trust, if, in the exercise of ordinary care,
they acted in good faith and in reliance upon the written opinion of an attorney
for the Trust. In discharging their duties, Trust Managers and officers of the
Trust, when acting in good faith and exercising ordinary care, may rely upon
financial statements of the Trust, stated in a written report by an independent
certified public accountant, to fairly present the financial position of the
Trust. The Trust Managers and officers of the Trust may rely upon any instrument
or other document reasonably believed by them to be genuine.
Section 4.15 LIABILITY OF TRUST MANAGERS. No Trust Manager of the Trust
shall be liable to the Trust for any act, omission, loss, damage or expense
arising from the performance of his or her duty under the Trust, except to the
extent specifically required by law, the Declaration of Trust or these Bylaws.
ARTICLE V.
COMMITTEES OF THE TRUST MANAGERS
Section 5.1 MEMBERSHIP AND AUTHORITIES. The Trust Managers, by
resolution adopted by a majority of the Trust Managers, may designate from among
its members one or more committees, each of which shall be comprised of one or
more of its members, and may designate one or more of its members as alternate
members of any committee, who may, subject to any limitations imposed by the
Trust Managers, replace absent or disqualified members at any meeting of that
committee. Any such committee, to the extent provided in such resolution or in
the Declaration of Trust or these Bylaws, shall have and may exercise all of the
authority of the Trust Managers, subject to the limitations set forth in
paragraphs (b) and (c) of this Section 5.1.
(b) No committee of the Trust Managers shall have the authority of
the Trust Managers in reference to:
(ii) amending the Declaration of Trust, except that a
committee may, to the extent provided in the resolution designating that
committee or in the Declaration of Trust or these Bylaws, exercise the
authority of the Trust Managers to classify or reclassify shares in
accordance with Section 3.30 of the Texas REIT Act;
(iii) proposing a reduction of the stated capital of the
Trust;
(iv) approving a plan of merger or share exchange of the
Trust;
(v) recommending to the shareholders the sale, lease or
exchange of all or substantially all of the property or assets of the
Trust otherwise than in the usual and regular course of its business;
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(vi) recommending to the shareholders a voluntary dissolution
of the Trust or a revocation thereof;
(vii) amending, altering or repealing these Bylaws or adopting
new Bylaws of the Trust;
(viii) filling vacancies in the Trust Managers;
(ix) filling vacancies in or designating alternate members of
any such committee;
(x) filling any Trust Manager vacancy occurring because of
an increase in the number of Trust Managers;
(xi) electing or removing officers of the Trust or members or
alternate members of any such committee;
(xii) fixing the compensation of any member or alternate
members of such committee; or
(xiii) altering or repealing any resolution of the Trust
Managers that by its terms provides that it shall not be so amendable or
repealable.
(c) Unless the resolution designating a particular committee, the
Declaration of Trust or these Bylaws expressly so provide, no committee of the
Trust Managers shall have the authority to authorize a distribution or to
authorize the issuance of shares of the Trust.
(d) The designation of a committee of the Trust Managers and the
delegation thereto of authority shall not operate to relieve the Trust Managers,
or any member thereof, of any responsibility imposed by law. A majority of the
number of members of any such committee shall constitute a quorum for the
transaction of business unless a greater number is required by a resolution
adopted by the Trust Managers. The act of the majority of the members of a
committee present at any meeting at which a quorum is present shall be the act
of the committee, unless the act of a greater number is required by a resolution
adopted by the Trust Managers. Each such committee may elect a chairman and
appoint such subcommittees and assistants as it may deem necessary. Any member
of any such committee elected or appointed by the Trust Managers may be removed
by the Trust Managers whenever in its judgment the best interests of the Trust
will be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Election or appointment of a
member of a committee shall not of itself create contract rights.
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Section 5.2 MINUTES AND RULES OF PROCEDURE. Each committee designated by
the Trust Managers shall keep regular minutes of its proceedings and report the
same to the Trust Managers when required. Subject to the provisions of these
Bylaws, the members of any committee may fix such committee's own rules of
procedure.
Section 5.3 VACANCIES. The Trust Managers shall have the power at any
time to fill vacancies in, to change the membership of, or to dissolve, any
committee.
Section 5.4 TELEPHONE MEETINGS. Members of any committee designated by
the Trust Managers may participate in or hold a meeting by use of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section 5.4 shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the grounds that the
meeting is not lawfully called or convened.
Section 5.5 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of any committee designated by the Trust Managers may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee, and such consent shall
have the same force and effect as a unanimous vote at a meeting.
ARTICLE VI.
OFFICERS
Section 6.1 NUMBER. The officers of the Trust shall include a President
and a Secretary. The Trust Managers may also elect a Chairman of the Board, one
or more Vice Presidents, a Treasurer, one or more Assistant Secretaries and one
or more Assistant Treasurers. One person may hold any two or more of these
offices.
Section 6.2 ELECTION, TERM OF OFFICE AND QUALIFICATION. The Trust
Managers shall elect officers, none of whom need be a Trust Manager, except for
the Chairman of the Board, if one shall be elected, at any time and from time to
time as they deem necessary. Each officer so elected shall hold office until his
or her successor shall have been duly elected and qualified or until his or her
death, resignation or removal in the manner hereinafter provided.
Section 6.3 SUBORDINATE OFFICERS. The Trust Managers may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms, have such authority and perform such duties as the Trust
Managers may from time to time determine. The Trust Managers may delegate to any
committee or officer the power to appoint any such subordinate officer or agent.
No subordinate officer appointed by any committee or superior
15
officer as aforesaid shall be considered as an officer of the Trust, the
officers of the Trust being limited to the officers elected or appointed as such
by the Trust Managers.
Section 6.4 RESIGNATION. Any officer may resign at any time by giving
written notice thereof to the Trust Managers or to the President or Secretary of
the Trust. Any such resignation shall take effect at the time specified therein
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 6.5 REMOVAL. Any officer elected or appointed by the Trust
Managers may be removed by the Trust Managers, whenever in their judgment the
best interests of the Trust will be served thereby, by majority vote of the
Trust Managers. Any other officer may be removed at any time with or without
cause by the Trust Managers or by any committee or superior officer upon whom
such power of removal may be conferred by the Trust Managers. The removal of any
officer shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create any contract rights.
Section 6.6 VACANCIES. A vacancy in any office shall be filled for the
unexpired portion of the term by the Trust Managers, but in case of a vacancy
occurring in an office filled by a committee or superior officer in accordance
with the provisions of Section 6.3, such vacancy may be filled by such committee
or superior officer.
Section 6.7 THE CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
shall be elected, shall be the chief executive officer of the Trust, shall
preside at all meetings of the shareholders and Trust Managers, shall be ex
officio a member of all standing committees, shall have general and active
management of the business of the Trust, shall have the general supervision and
direction of all other officers of the Trust with full power to see that their
duties are properly performed and shall see that all orders and resolutions of
the Trust Managers are carried into effect. He or she may sign, with any other
proper officer, certificates for shares of the Trust and any deeds, bonds,
mortgages, contracts and other documents which the Trust Managers have
authorized to be executed, except where required by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Trust Managers or these Bylaws, to some other officer
or agent of the Trust. In addition, the Chairman of the Board shall perform
whatever duties and shall exercise all powers that are given to him or her by
the Trust Managers.
Section 6.8 THE PRESIDENT. If a Chairman of the Board is not elected,
the President shall be the chief executive officer of the Trust and shall have
the powers and duties of the Chairman of the Board as set forth in Section 6.7.
In the absence of the Chairman of the Board, if one shall be elected, the
President shall preside at all meetings of the shareholders and Trust Managers.
He or she may sign, with any other proper officer, certificates for shares of
the Trust and any deeds, bonds, mortgages, contracts and other documents which
the Trust Managers have authorized to be executed, except where required by law
to be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Trust
16
Managers or these Bylaws to some other officer or agent of the Trust. In
addition, the President shall perform whatever duties and shall exercise
whatever powers given to him or her by the Trust Managers or by the Chairman of
the Board, if one shall be elected.
Section 6.9 THE VICE PRESIDENTS. The Vice Presidents shall perform such
duties as are given to them by these Bylaws and as may from time to time be
assigned to them by the Trust Managers, by the Chairman of the Board, if one
shall be elected, or by the President, if a Chairman of the Board is not
elected. Any Vice President may sign, with any other proper officer,
certificates for shares of the Trust. At the request of the President, or in his
or her absence or disability, the Vice President designated by the President (or
in the absence of such designation, the senior Vice President), shall perform
the duties and exercise the powers of the President.
Section 6.10 THE SECRETARY. The Secretary, when available, shall attend
all meetings of the Trust Managers and all meetings of the shareholders and
record all votes and the minutes of all proceedings in a book to be kept for
that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the Trust Managers as required by law or these
Bylaws, be custodian of the Trust records and have general charge of the share
books of the Trust and shall perform such other duties as may be prescribed by
the Trust Managers, by the Chairman of the Board, if one shall be elected, or by
the President, if a Chairman of the Board is not elected, under whose
supervision he or she shall be. The Secretary may sign, with any other proper
officer, certificates for shares of the Trust and shall keep in safe custody the
seal of the Corporation, and, when authorized by the Trust Managers, affix the
same to any instrument requiring it and, when so affixed, it shall be attested
by his or her signature or by the signature of the Treasurer or an Assistant
Secretary.
Section 6.11 ASSISTANT SECRETARIES. The Assistant Secretaries shall
perform such duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Trust Managers or by the Secretary. At the
request of the Secretary, or in his or her absence or disability, the Assistant
Secretary designated by the Secretary (or in the absence of such designation the
senior Assistant Secretary), shall perform the duties and exercise the powers of
the Secretary.
Section 6.12 THE TREASURER. The Treasurer shall (i) have the custody and
be responsible for all Trust funds and securities, (ii) keep full and accurate
accounts of receipts and disbursements in books belonging to the Trust, (iii)
deposit all monies and other valuable effects in the name and to the credit of
the Trust in such depositories as may be designated by the Trust Managers, (iv)
disburse the funds of the Trust as may be ordered by the Trust Managers, taking
proper vouchers for such disbursements, and (v) render to the Chairman of the
Board, if one shall be elected, the President and the Trust Managers, at the
regular meetings of the Trust Managers, or whenever they may require it, an
account of all his or her transactions as Treasurer and of the
17
financial condition of the Trust. The Treasurer may sign, with any other proper
officer, certificates for shares of the Trust.
Section 6.13 ASSISTANT TREASURERS. The Assistant Treasurers shall
perform such duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Trust Managers or by the Treasurer. At the
request of the Treasurer, or in his or her absence or disability, the Assistant
Treasurer designated by the Treasurer (or in the absence of such designation,
the senior Assistant Treasurer), shall perform the duties and exercise the
powers of the Treasurer.
Section 6.14 TREASURER'S BOND. If required by the Trust Managers, the
Treasurer and any Assistant Treasurer shall give the Trust a bond in such sum
and with such surety or sureties as shall be satisfactory to the Trust Managers
for the faithful performance of the duties of such office and for the
restoration to the Trust, in case of his or her death, resignation, retirement
or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his or her possession or under his or her control belonging
to the Trust.
Section 6.15 SALARIES. The salary or other compensation of officers
shall be fixed from time to time by the Trust Managers. The Trust Managers may
delegate to any committee or officer the power to fix from time to time the
salary or other compensation of subordinate officers and agents appointed in
accordance with the provisions of Section 6.3.
Section 6.16 EXECUTION OF DOCUMENTS. Each officer of the Trust is
authorized to execute on behalf of the Trust any document or instrument of any
nature whatsoever, provided that the execution by the Trust of any such document
or instrument shall have been previously authorized by such action of the Trust
Managers as may be required by statute, the Declaration of Trust or these
Bylaws.
ARTICLE VII.
TRUST SHARES
Section 7.1 SHARE CERTIFICATES. (a) The certificates representing shares
of beneficial interests of the Trust shall be in such form, as required by and
not inconsistent with the Texas REIT Act and applicable law, and the Declaration
of Trust, as shall be approved by the Trust Managers. The certificates shall be
signed by the Chairman of the Board, if one shall be elected, the President or a
Vice President and a Secretary or Assistant Secretary, or such other or
additional officers as may be prescribed from time to time by the Trust
Managers. The signatures of such officer or officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent or registered
by a registrar, either of which is other than the Trust itself or an employee of
the Trust. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
18
certificate is issued, it may be issued with the same effect as if he or she
were such officer at the date of its issuance.
(b) In the event the Trust has limited or denied the preemptive
right of shareholders, there shall be set forth on the face or back of the
certificates, which the Trust shall issue to represent beneficial interests,
such legends or statements, if any, as shall be required by applicable law or
the Declaration of Trust or as may be approved by the Trust Managers.
(c) All certificates shall be consecutively numbered and the name of
the person owning the shares represented thereby, with the number of such shares
and the date of issue, shall be entered on the Trust's books.
(d) All certificates surrendered to the Trust shall be canceled,
and, except as provided in Section 7.2 with respect to lost, destroyed or
mutilated certificates, no new certificate shall be issued until the former
certificate for the same number of shares has been surrendered and canceled.
Section 7.2 LOST OR DESTROYED CERTIFICATES. The Trust Managers may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Trust alleged to have been
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. In authorizing such
issue of a new certificate or certificates, the Trust Managers may, in their
discretion and as a condition precedent to the issue thereof, require the owner
of such lost or destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as the Trust Managers shall
require and/or indemnify the Trust as the Trust Managers may prescribe.
Section 7.3 TRANSFER OF SHARES. Subject to any restrictions upony
transfer, upon surrender to the Trust or the transfer agent of the Trust of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer and satisfaction of the Trust
that the requested transfer complies with the provisions of applicable state and
federal laws and regulations, the Declaration of Trust and any agreements to
which the Trust is a party, the Trust shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
Section 7.4 OWNERSHIP OF SHARES. The Trust shall be entitled to treat
and recognize the holder of record of any share or shares 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 shares 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 Texas.
Section 7.5 CLOSING OF TRANSFER BOOKs. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive a distribution by the Trust
(other than a distribution involving a purchase or
19
redemption by the Trust of its own shares) or a share dividend, or in order to
make a determination of shareholders for any other proper purpose, the Trust
Managers may provide that the share transfer books shall be closed for a stated
period but not to exceed, in any case, 60 days. If the share transfer books
shall be closed for the purpose of determining shareholders entitled to notice
of or to vote at a meeting of shareholders, such books shall be closed for at
least 10 days immediately preceding such meeting. In lieu of closing the share
transfer books, the Trust Managers may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not more
than 60 days and, in case of a meeting of shareholders, not less than 10 days
prior to the date on which the particular action requiring such determination of
shareholders is to be taken, and the determination of shareholders on such
record date shall apply with respect to the particular action requiring the same
notwithstanding any transfer of shares on the books of the Trust after such
record date.
Section 7.6 DIVIDENDS. The Trust Managers may, from time to time,
declare, and the Trust may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by the Declaration of Trust
and by law, such dividends to be paid in cash, in property or in shares of
beneficial interests of the Trust, except no dividends shall be paid if (i)
after giving effect to the distribution, the Trust would be insolvent, or (ii)
the distribution exceeds the surplus of the Trust.
Section 7.7 RESERVES. By resolution the Trust Managers may create such
reserve or reserves of the Trust as the Trust Managers from time to time, in
their absolute discretion, determine to be proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Trust, or for such other purpose as the Trust Managers shall
determine to be beneficial to the interest of the Trust. The Trust Managers may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1 GENERAL. Each person who at any time shall serve, or shall
have served, as a Trust Manager, officer, employee or agent of the Trust, or any
person who, while a director, officer, employee or agent of the Trust, is or was
serving at its request as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic real estate investment trust, corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or other enterprise,
shall be entitled to indemnification and the advancement of expenses from the
Trust as, and to the fullest extent, permitted by Section 9.20 of the Texas REIT
Act or any successor statutory provision, and the Declaration of Trust, as each
may from time to time be amended. The foregoing right of indemnification and to
the advancement of expenses shall not be deemed exclusive of any other rights to
which those to be indemnified may be entitled as a matter of law or under any
agreement, vote of shareholders or disinterested Trust Managers, or other
arrangement.
20
Section 8.2 INSURANCE. The Trust may purchase and maintain insurance or
another arrangement on behalf of any person who is or was a Trust Manager,
officer, employee or agent of the Trust or who is or was serving at the request
of the Trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic real estate investment trust, corporation, partnership, joint
venture, sole proprietorship, trust, employee benefit plan or any other
enterprise against any liability asserted against him or her and incurred by him
or her in such capacity or arising out of his or her status as such a person,
whether or not the Trust would have the power to indemnify him or her against
that liability under this Article VIII or the Texas REIT Act.
ARTICLE IX.
GENERAL PROVISIONS
Section 9.1 GENERAL POLICIES. The Trust intends to make investments that
are consistent with the applicable requirements of the Internal Revenue Code of
1986, as amended, and the Texas REIT Act, as amended, and related regulations
with respect to the composition of the Trust's investments and the derivation of
its income.
Section 9.2 LIMITED LIABILITY OF SHAREHOLDERS. A shareholder shall not
be personally or individually liable in any manner whatsoever for any debt, act,
omission or obligation incurred by the Trust or the Trust Managers. A
shareholder shall be under no obligation to the Trust or to its creditors with
respect to such shares other than the obligation to pay to the Trust the full
amount of the consideration for which such shares were issued or to be issued.
Upon the payment of such consideration, such shares shall be fully paid and
non-assessable by the Trust.
Section 9.3 WAIVER OF NOTICE. (a) Whenever, under the provisions of
applicable law or of the Declaration of Trust or of these Bylaws, any notice is
required to be given to any shareholder or Trust Manager, 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 equivalent to the giving of such
notice.
(b) Attendance of a Trust Manager at a meeting shall constitute a
waiver of notice of such meeting except where a Trust Manager attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
Section 9.4 SEAL. If one be adopted, the Trust seal shall have inscribed
thereon the name of the Trust and shall be in such form as may be approved by
the Trust Managers. Said seal shall be kept in the custody of the Secretary and
may be used by causing it or a facsimile of it to be impressed or affixed or in
any manner reproduced.
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Section 9.5 FISCAL YEAR. The fiscal year of the Trust shall be fixed by
resolution of the Trust Managers.
Section 9.6 CHECKS, NOTES, ETC. All checks or demands for money and
notes of the Trust shall be signed by such officer or officers, or such other
person, or persons as the Trust Managers may from time to time designate. The
Trust Managers may authorize any officer or officers, or such other person or
persons, to enter into any contract or execute and deliver any instrument in the
name of and on behalf of the Trust, and such authority may be general or
confined to specific instances.
Section 9.7 EXAMINATION OF BOOKS AND RECORDS. The Trust Managers shall
determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Trust (except such as
may by statute be specifically opened to inspection) or any of them shall be
open to inspection by the shareholders, and the shareholders' rights in this
respect are and shall be restricted and limited accordingly.
Section 9.8 VOTING OF VOTING SECURITIES HELD BY THE TRUST. Unless
otherwise ordered by the Trust Managers, the President, acting on behalf of the
Trust, shall have full power and authority to attend, to act and to vote at any
meeting of holders of voting securities of any person in which the Trust may
hold voting securities. At any such meeting, the President shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
voting securities which, as the owner thereof, the Trust might have possessed
and exercised, if present. The Trust Managers by resolution from time to time
may confer like powers upon any other person or persons.
Section 9.9 NUMBER, GENDER, ETC. When required by the context, whenever
the singular number is used in these Bylaws, when required by the context, the
same shall include the plural, and the masculine gender shall include the
feminine and neuter genders. The term "person," as used herein and as the
context requires, shall mean and include individuals, corporations, limited
partnerships, general partnerships, joint stock companies or associations, joint
ventures, associations, limited liability companies, companies, trusts, banks,
trust companies, land trusts, business trusts, or other entities and governments
and agencies and political subdivisions thereof.
ARTICLE X.
AMENDMENTS
Section 10.1 AMENDMENT OF BYLAWS. Except as otherwise provided by the
Texas REIT Act or the Declaration of Trust, the power to alter, amend or repeal
these Bylaws or to adopt new Bylaws shall be vested in the Trust Managers and
(to the extent not inconsistent with the Texas REIT Act and the Declaration of
Trust and specified in the notice of the meeting) the shareholders. Such action
to amend the Bylaws may be taken (i) with respect to all Bylaw provisions, by
the affirmative vote of a majority of the Trust Managers, or (ii)(a) with
respect to
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Section 2.5, Section 3.3, Section 3.4, Section 3.6, Section 3.7 or Article IX of
these Bylaws, by the affirmative vote of the holders of two-thirds of the
Trust's outstanding shares, or (b) with respect to all other Bylaws, by the
affirmative vote of the holders of a majority of the Trust's outstanding shares.
ARTICLE XI.
SUBJECT TO ALL LAWS
Section 11.1 SUBJECT TO ALL LAWS. The provisions of these Bylaws shall
be subject to all valid and applicable laws, including, without limitation, the
Texas REIT Act as now or hereafter amended, and in the event that any of the
provisions of these Bylaws are found to be inconsistent with or contrary to any
such valid laws, the latter shall be deemed to control and these Bylaws shall be
deemed modified accordingly, and, as so modified, shall continue in full force
and effect.
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