Attached files
EXHIBIT 3.2
STARWOOD PROPERTY TRUST, INC.
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 as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal
executive office of the Corporation or at such other place as shall be set by the Board of
Directors and stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for the election of
directors and the transaction of any business within the powers of the Corporation shall be held on
a date and at the time set by the Board of Directors during the month of May in each year.
Section 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, 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 the stockholders entitled to cast not less than a majority
of all the votes entitled to be cast at such meeting.
(b) Stockholder Requested Special Meetings.
(1) Any stockholder of record seeking to have stockholders request a special meeting shall, by
sending written notice to the secretary of the Corporation (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 duly authorized agents), shall bear the date of
signature of each such stockholder (or other 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 under the Securities Exchange Act of 1934, as amended (the
Exchange Act), and Rule 14a-11 thereunder. 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 and to make a public announcement of such 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 duly authorized agents) as of the
Request Record Date entitled to cast not less than a majority (the Special Meeting Percentage) of
all of the votes entitled to be cast at such meeting (the Special Meeting Request) shall be
delivered to the secretary. In addition, the Special Meeting Request shall set forth the purpose
of the meeting and the matters proposed to be acted on at it (which shall be limited to the matters
set forth in the Record Date Request Notice received by the secretary), shall bear the date of
signature of each such stockholder (or other agent) signing the Special Meeting Request, shall set
forth the name and address, as they appear in the Corporations books, of each stockholder signing
such request (or on whose behalf the Special Meeting Request is signed) and the class and number of
shares of stock of the Corporation which are owned of record and beneficially by each such
stockholder, shall be sent to the secretary by registered mail, return receipt requested, and shall
be received by the secretary within 60 days after the Request Record Date. Any requesting
stockholder 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 Corporations 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.
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(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 president, chief executive officer or Board of Directors,
whoever has called the meeting. In the case of any special meeting called
by the secretary upon the request of stockholders (a Stockholder Requested Meeting), such
meeting shall be held at such place, date and time as may be designated by the Board of Directors;
provided, however, that the date of any Stockholder Requested Meeting shall be not more
than 90 days after the record date for such meeting (the Meeting Record Date); and
provided further that if the Board of Directors fails to designate, within ten days
after the date that a valid Special Meeting Request is actually received by the secretary (the
Delivery Date), a date and time for a Stockholder Requested Meeting, then such meeting shall be
held at 2:00 p.m. local time on the 90th day after the Meeting Record Date or, if such 90th day is
not a Business Day (as defined below), on the first preceding Business Day; and provided
further that in the event that the Board of Directors fails to designate a place for a
Stockholder Requested Meeting within ten days after the Delivery Date, then such meeting shall be
held at the principal executive offices of the Corporation. In fixing a date for any special
meeting, the president, chief executive officer or Board of Directors may consider such factors as
he, she or it deems relevant within the good faith exercise of business judgment, including,
without limitation, the nature of the matters to be considered, the facts and circumstances
surrounding any request for 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.
(5) If at any time as a result of written revocations of requests for the special meeting,
stockholders of record (or their duly authorized agents) as of the Request Record Date entitled to
cast less than the Special Meeting Percentage shall have delivered and not revoked requests for a
special meeting, the secretary may refrain from mailing the notice of the meeting or, if the notice
of the meeting has been mailed, the secretary may revoke the notice of the meeting at any time
before ten days before the meeting if the secretary has first sent to all other requesting
stockholders written notice of such revocation and of intention to revoke the notice of the
meeting. Any request for a special meeting received after a revocation by the secretary of a
notice of a meeting shall be considered a request for a new special meeting.
(6) The chairman of the Board of Directors, the president or the Board of Directors may
appoint regionally or nationally recognized independent inspectors of elections to act as the agent
of the Corporation for the purpose of promptly performing a ministerial review of the validity of
any purported Special Meeting Request received by the secretary. For the purpose of permitting the
inspectors to perform such review, no such purported request shall be deemed to have been delivered
to the secretary until the earlier of (i) ten Business Days after receipt by the secretary of such
purported request and (ii) such date as the independent inspectors certify to the Corporation that
the valid requests received by the secretary represent at least a majority of the issued and
outstanding shares of stock that would be entitled to vote at such meeting. Nothing contained in
this paragraph (6) shall in any way be construed to suggest or imply that the Corporation or any
stockholder shall not be entitled to contest the validity of any request, whether during or after
such ten Business Day period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and the seeking of
injunctive relief in such litigation).
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(7) For purposes of these Bylaws, Business Day shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of 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 notice in writing or
by electronic transmission stating the time and place of the meeting, if any, and the means of
remote communication, if any, by which stockholders and proxy holders may be deemed to be present
in person and may vote at the meeting and, in the case of a special meeting or as otherwise may be
required by any statute, the purpose for which the meeting is called, either by mail, by presenting
it to such stockholder personally, by leaving it at the stockholders residence or usual place of
business, by transmitting it to the stockholder by an electronic transmission to any address or
number of the stockholder at which the stockholder receives electronic transmissions 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 stockholders address as it
appears on the records of the Corporation, with postage thereon prepaid.
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 president, the vice presidents in
their order of rank and seniority or, in the absence of such officers, a chairman chosen by the
stockholders by the vote of a majority of the votes cast by stockholders present in person or by
proxy. The secretary or, in the secretarys absence, an assistant secretary or, in the absence of
both the secretary and assistant secretaries, a person appointed by the Board of Directors or, in
the absence of such appointment, a person 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 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 or other such persons as the chairman of the meeting may determine;
(c) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter,
their duly authorized proxies or other such persons as the chairman of the meeting may determine;
(d) limiting the time allotted to questions or comments by participants; (e) maintaining order and
security at the meeting; (f) removing any stockholder who refuses to comply with meeting
procedures, rules or guidelines as set forth by the chairman of the meeting; and (g) recessing or
adjourning the meeting to a later date and time and 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.
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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 or the stockholders entitled to vote at such meeting, present in person or by proxy, shall
have the power to adjourn the meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the meeting. At such adjourned
meeting at which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
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. A plurality of all the votes cast at a meeting of stockholders
duly called and at which a quorum is present shall be sufficient to elect a director. Each share
may be voted for as many individuals as there are directors to be elected and for whose election
the share is entitled to be voted. A majority of the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to approve any other matter which may
properly come before the meeting, unless more than a majority of the votes cast is required by
statute or by the charter of the Corporation. Unless otherwise provided in the charter, each
outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders.
Section 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 stockholders duly authorized agent in any manner permitted by law. Such
proxy or evidence of authorization of such proxy shall be filed with the secretary of the
Corporation before or at the meeting. No proxy shall be valid more than eleven months after its
date unless otherwise provided in the proxy.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in
the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be
voted by the president or a vice president, a general partner or trustee thereof,
as the case may be, or a proxy appointed by any of the foregoing individuals, unless some
other person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners of a partnership
presents a certified copy of such bylaw, resolution or agreement, in which case such person may
vote such stock. Any director or other fiduciary may vote stock registered in his or her name as
such fiduciary, either in person or by proxy.
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Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify
in writing to the Corporation that any shares of stock registered in the name of the stockholder
are held for the account of a specified person other than the stockholder. The resolution shall
set forth the class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be contained in it; if
the certification is with respect to a record date or closing of the stock transfer books, the time
after the record date or closing of the stock transfer books within which the certification must be
received by the Corporation; and any other provisions with respect to the procedure which the Board
of Directors considers necessary or desirable. On receipt of such certification, the person
specified in the certification shall be regarded as, for the purposes set forth in the
certification, the stockholder of record of the specified stock in place of the stockholder who
makes the certification.
Section 10. INSPECTORS. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more individual inspectors or one or more entities that designate
individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails to appear or act,
the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting
or at the meeting by the chairman of the meeting. The inspectors, if any, shall determine the
number of shares outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all stockholders. Each such report
shall be in writing and signed by him or her or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
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Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER
PROPOSALS.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of business
to be considered by the stockholders may be made at an annual meeting of stockholders (i) pursuant
to the Corporations notice of meeting, (ii) by or at the direction of the Board of Directors or
(iii) by any stockholder of the Corporation who was a stockholder of record both at the time of
giving of notice provided for in this Section 11(a) and at the time of the annual meeting, who is
entitled to vote at the meeting and who complied with the notice procedures set forth in this
Section 11(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 11, the stockholder must
have given timely notice thereof in writing to the secretary of the Corporation and such other
business must otherwise be a proper matter for action by the stockholders. To be timely, a
stockholders notice shall be delivered to the secretary at the principal executive offices of the
Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the date
of mailing of the notice for the preceding years annual meeting; provided, however, that
in the event that the date of the mailing of the notice for the annual meeting is advanced or
delayed by more than 30 days from the first anniversary of the date of mailing of the notice for
the preceding years annual meeting, notice by the stockholder to be timely must be so delivered
not earlier than the 120th day prior to the date of mailing of the notice for such annual meeting
and not later than the close of business on the later of the 90th day prior to the date of mailing
of the notice for such annual meeting or the tenth day following the day on which disclosure of the
date of mailing of the notice for such meeting is first made. In no event shall the public
announcement of a postponement or adjournment of an annual meeting commence a new time period for
the giving of a stockholders notice as described above. Such stockholders notice shall set forth
(i) as to each person whom the stockholder proposes to nominate for election or reelection as a
director, (A) the name, age, business address and residence address of such person, (B) the class
and number of shares of stock of the Corporation that are beneficially owned by such person, and
(C) all other information relating to such person 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 persons 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 the business desired to be brought before the meeting, the reasons for conducting such business
at the meeting and any material interest in such business of such stockholder (including any
anticipated benefit to the stockholder therefrom) and of each beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the stockholder giving the notice and each beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporations stock ledger and current name and address, if different, and of such beneficial owner, and (y) the
class and number of shares of each class of stock of the Corporation which are owned beneficially
and of record by such stockholder and owned beneficially by such beneficial owner.
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(3) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in the
event the Board of Directors increases or decreases the maximum or minimum number of directors in
accordance with Article III, Section 2 of these Bylaws, and there is no announcement of such action
at least 100 days prior to the first anniversary of the date of mailing of the preceding years
annual meeting, a stockholders notice required by this Section 11(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 of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected (i) pursuant to
the Corporations 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 11 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 11. In the event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any such stockholder may nominate a
person or persons (as the case may be) for election as a director as specified in the Corporations
notice of meeting, if the stockholders notice required by paragraph (a)(2) of this Section 11
shall be delivered to the secretary at the principal executive offices of the Corporation not
earlier than the 120th day prior to such special meeting and not later than the close of business
on the later of the 90th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In no event shall the public
announcement of a postponement or adjournment of a special meeting commence a new time period for
the giving of a stockholders notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the procedures set forth in this
Section 11 of these Bylaws shall be eligible to serve as directors, and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 11. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the procedures set forth in
this Section 11 and, if any proposed nomination or
business is not in compliance with this Section 11, to declare that such defective nomination
or proposal be disregarded.
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(2) For purposes of this Section 11, (a) the date of mailing of the notice shall mean the
date of the proxy statement for the solicitation of proxies for election of directors and (b)
public announcement shall mean disclosure (i) in a press release reported by the Dow Jones News
Service, Associated Press or comparable news service or (ii) in a document publicly filed by the
Corporation with the United States Securities and Exchange Commission pursuant to the Exchange Act
or the Investment Company Act of 1940, as amended.
(3) Notwithstanding the foregoing provisions of this Section 11, 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 11. Nothing in this
Section 11 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 Corporations proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act.
Section 12. VOTING BY BALLOT. Voting on any question or in any election may be
viva voce unless the presiding officer shall order or any stockholder shall demand that
voting be by ballot.
Section 13. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of the
charter of the Corporation or these Bylaws, Title 3, Subtitle 7 of the Maryland General Corporation
Law (or any successor statute) shall not apply to any acquisition by any person of shares of stock
of the Corporation. This section may be repealed, in whole or in part, at any time, whether before
or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any
successor bylaw, apply to any prior or subsequent control share acquisition.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under
the direction of its Board of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any
special meeting called for that purpose, a majority of the entire Board of Directors may establish,
increase or decrease the number of directors, provided that the number thereof shall never be less
than the minimum number required by the Maryland General Corporation Law, nor more than 15, and
further provided that the tenure of office of a director shall not be affected by any decrease in
the number of directors.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors
shall be held immediately after and at the same place as the annual meeting of stockholders, no
notice other than this Bylaw being necessary. In the event such meeting is not so held, the
meeting may be held at such time and at any place or by means of remote communication as shall be
specified in a notice given as hereinafter provided for special meetings of the Board of Directors.
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Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called
by or at the request of the chairman of the board, the chief executive officer, the president or by
a majority of the directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix any place as the place for holding any special meeting
of the Board of Directors called by them or may fix remote communication as the means by which any
special meeting of the Board of Directors called by them will be held. The Board of Directors may
provide, by resolution, the time and place, if any, and the means of remote communication, if any,
for the holding of special meetings of the Board of Directors without other notice than such
resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be
delivered personally or by telephone, electronic mail, facsimile transmission, 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 majority of such directors are present at said meeting, a majority of the directors present
may adjourn the meeting from time to time without further notice, and provided
further that if, pursuant to the charter of the Corporation or these Bylaws, the vote of a
majority of a particular group of directors is required for action, a quorum must also include a
majority of such group.
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 statute or the charter. If
enough directors have withdrawn from a meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of the directors still present 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 statute or the charter.
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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. 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. The
secretary or, in his or her absence, an assistant secretary of the Corporation or, in the absence
of the secretary and all assistant secretaries, a person appointed by the Chairman, shall act as
secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or other communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these means shall constitute
presence in person at the meeting.
Section 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 in
writing or by electronic transmission to such action is signed by each director and such written
consent is filed in paper or electronic form 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 (even if fewer than three directors remain). Any vacancy on the
Board of Directors for any cause other than an increase in the number of directors shall be filled
by a majority of the remaining directors, even if such majority is less than a quorum. Any vacancy
in the number of directors created by an increase in the number of directors may be filled by a
majority vote of the entire Board of Directors. Any individual so elected as director shall serve
until the next annual meeting of stockholders and until his or her successor is elected and
qualifies.
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 and/or per visit to real property or other facilities owned or
leased by the Corporation and for any service or activity they performed or engaged in as
directors. Directors may be reimbursed for expenses of attendance, if any, at each annual, regular
or special meeting of the Board of Directors or of any committee thereof and for their expenses, if
any, in connection with each property visit and any other service or activity they performed or
engaged in as directors; but nothing herein contained shall be construed to preclude any directors
from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 13. LOSS OF DEPOSITS. No director shall be liable for any loss which may
occur by reason of the failure of the bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
Section 14. SURETY BONDS. Unless required by law, no director shall be obligated to
give any bond or surety or other security for the performance of any of his or her duties.
Section 15. RELIANCE. Each director, officer, employee and agent of the Corporation
shall, in the performance of his or her duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good faith upon the books of
account or other records of the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a director.
Section 16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
directors shall have no responsibility to devote their full time to the affairs of the Corporation.
Any director or officer, employee or agent of the Corporation, in his or her personal capacity or
in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to or in addition to or in competition
with those of or relating to the Corporation.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from
among its members an Executive Committee, an Audit Committee, a Compensation Committee and other
committees, composed of one or more directors, to serve at the pleasure of the Board of Directors.
Section 2. POWERS. The Board of Directors may delegate to committees appointed under
Section 1 of this Article any of the powers of the Board of Directors, except as prohibited by law.
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, if any, and the means of remote
communication, if any, 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.
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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 other communications equipment if
all persons participating in the meeting can hear each other at the same time. Participation in a
meeting by these means shall constitute presence in person at the meeting.
Section 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, if a
consent in writing or by electronic transmission to such action is signed by each member of the
committee and such written consent is filed in paper or electronic form with the minutes of
proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of Directors shall
have the power at any time to change the membership of any committee, to fill all vacancies, to
designate alternate members to replace any absent or disqualified member or to dissolve any such
committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a
president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of
the board, a chief executive officer, one or more vice presidents, a chief operating officer, a
chief financial officer, one or more assistant secretaries and one or more assistant treasurers.
In addition, the Board of Directors may from time to time elect such other officers with such
powers and duties as they shall deem necessary or desirable. The officers of the Corporation shall
be elected annually by the Board of Directors, except that the chief executive officer or president
may from time to time appoint one or more vice presidents, assistant secretaries and assistant
treasurers or other officers. Each officer shall hold office until his or her successor is elected
and qualifies or until his or her death, or his or her resignation or removal in the manner
hereinafter provided. 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.
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Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors
for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a chief
executive officer. In the absence of such designation, the chairman of the board shall be the
chief executive officer of the Corporation. The chief executive officer shall have general
responsibility for implementation of the policies of the Corporation, as determined by the Board of
Directors, and for the management of the business and affairs of the Corporation.
Section 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief
operating officer. The chief operating officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief
financial officer. The chief financial officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer.
Section 7. CHAIRMAN OF THE BOARD. The Board of Directors shall designate a chairman
of the board. The chairman of the board shall preside over the meetings of the Board of Directors
and of the stockholders at which he shall be present. The chairman of the board shall perform such
other duties as may be assigned to him or her by the Board of Directors.
Section 8. PRESIDENT. In the absence of a chief executive officer, the president
shall in general supervise and control all of the business and affairs of the Corporation. In the
absence of a designation of a chief operating officer by the Board of Directors, the president
shall be the chief operating officer. He may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly delegated by the Board
of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be
required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the
Board of Directors from time to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in the event of a
vacancy in such office, the vice president (or in the event there be more than one vice president,
the vice presidents in the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be assigned to such vice
president by the president or by the Board of Directors. The Board of Directors may designate one
or more vice presidents as executive vice president or as vice president for particular areas of
responsibility.
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Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of
the stockholders, the Board of Directors and committees of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation; (d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (e) have general charge of the stock
transfer books of the Corporation; and (f) in general perform such other duties as from time to
time may be assigned to him by the chief executive officer, the president or by the Board of
Directors.
Section 11. TREASURER. The treasurer shall have the custody of the funds and
securities of the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. In the absence of a designation of a chief financial officer by the
Board of Directors, the treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the president and
Board of Directors, at the regular meetings of the Board of Directors or whenever it may so
require, an account of all his or her transactions as treasurer and of the financial condition of
the Corporation.
If required by the Board of Directors, the treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his or her office and for the restoration to the Corporation,
in case of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant secretaries
and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the
secretary or treasurer, respectively, or by the president or the Board of Directors. The assistant
treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of
their duties in such sums and with such surety or sureties as shall be satisfactory to the Board of
Directors.
Section 13. SALARIES. The salaries and other compensation of the officers shall be
fixed from time to time by the Board of Directors and no officer shall be prevented from receiving
such salary or other compensation by reason of the fact that he is also a director.
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ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer or agent to
enter into any contract or to execute and deliver any instrument in the name of and on behalf of
the Corporation and such authority may be general or confined to specific instances. Any
agreement, deed, mortgage, lease or other document shall be valid and binding upon the Board of
Directors and upon the Corporation when authorized or ratified by action of the Board of Directors
and executed by an authorized person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or agent of the Corporation in such manner as shall from time to time be
determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES; REQUIRED INFORMATION. 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 Maryland General Corporation Law (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 holders
of such shares a written statement of the information required by the MGCL to be included on stock
certificates.
Section 2. TRANSFERS OF CERTIFICATED SECURITIES. Upon surrender to the Corporation or
the transfer agent of the Corporation of a stock certificate duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books.
The Corporation shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.
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Notwithstanding the foregoing, transfers of shares of any class of stock will be subject in
all respects to the charter of the Corporation and all of the terms and conditions contained
therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of Directors
may direct a new certificate to be issued in place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that
fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, an officer designated by the Board of Directors may, in his or her
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or the owners legal representative to advertise the same in such
manner as he shall require and/or to give bond, with sufficient surety, to the Corporation to
indemnify it against any loss or claim which may arise as a result of the issuance of a new
certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of Directors
may set, in advance, a record date for the purpose of determining stockholders entitled to notice
of or to vote at any meeting of stockholders or determining stockholders entitled to receive
payment of any dividend or the allotment of any other rights, or in order to make a determination
of stockholders for any other proper purpose. Such date, in any case, shall not be prior to the
close of business on the day the record date is fixed and shall be not more than 90 days and, in
the case of a meeting of stockholders, not less than ten days, before the date on which the meeting
or particular action requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not longer than 20 days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for at least ten days before the date of such
meeting.
If no record date is fixed and the stock transfer books are not closed for the determination
of stockholders, (a) the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 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.
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Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at
the office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares of each class held by
such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may issue
fractional stock or provide for the issuance of scrip, all on such terms and under such conditions
as they may determine. Notwithstanding any other provision of the charter or these Bylaws, the
Board of Directors may issue units consisting of different securities of the Corporation. Any
security issued in a unit shall have the same characteristics as any identical securities issued by
the Corporation, except that the Board of Directors may provide that for a specified period
securities of the Corporation issued in such unit may be transferred on the books of the
Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the
Corporation may be authorized by the Board of Directors, subject to the provisions of law and the charter of the Corporation. Dividends and other distributions may be paid in
cash, property or stock of the Corporation, subject to the provisions of law and the charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other distributions,
there may be set aside out of any assets of the Corporation available for dividends or other
distributions such sum or sums as the Board of Directors may from time to time, in its absolute
discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other
distributions, for repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of the Corporation,
and the Board of Directors may modify or abolish any such reserve.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of Directors may from
time to time adopt, amend, revise or terminate any policy or policies with respect to investments
by the Corporation as it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall contain the name of the Corporation and the year of its incorporation
and the words Incorporated Maryland. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix
its seal to a document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word (SEAL) adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time, the Corporation
shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to
indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any individual who is a present or former director or officer of the Corporation
and who is made a party to the proceeding by reason of his or her service in that capacity or (b)
any individual who, while a director of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner or trustee of
such corporation, real estate investment trust, partnership, joint venture, trust, employee benefit
plan or other enterprise and who is made a party to the proceeding by reason of his or her service
in that capacity. The Corporation may, with the approval of its Board of Directors, provide such
indemnification and advance for expenses to a person who served a predecessor of the Corporation in
any of the capacities described in (a) or (b) above and to any employee or agent of the Corporation
or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other
provision of the Bylaws or charter of the Corporation inconsistent with this Article, shall apply
to or affect in any respect the applicability of the preceding paragraph with respect to any act or
failure to act which occurred prior to such amendment, repeal or adoption.
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ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the Corporation or
these Bylaws or pursuant to applicable law, a waiver thereof in writing or by electronic
transmission, delivered by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the
business to be transacted at nor the purpose of any meeting need be set forth in the waiver of
notice, unless specifically required by statute. The attendance of any person at any meeting shall
constitute a waiver of notice of such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws.
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