Attached files
file | filename |
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8-K - FORM 8-K - DiamondRock Hospitality Co | c93785e8vk.htm |
EX-10.2 - EXHIBIT 10.2 - DiamondRock Hospitality Co | c93785exv10w2.htm |
EX-10.1 - EXHIBIT 10.1 - DiamondRock Hospitality Co | c93785exv10w1.htm |
Exhibit 3.2
DIAMONDROCK HOSPITALITY COMPANY
THIRD AMENDED AND RESTATED BYLAWS (as amended)
TABLE OF CONTENTS
ARTICLE I OFFICES |
1 | |||
Section 1. Principal Office |
1 | |||
Section 2. Additional Offices |
1 | |||
ARTICLE II MEETINGS OF STOCKHOLDERS |
1 | |||
Section 1. Place |
1 | |||
Section 2. Annual Meeting |
1 | |||
Section 3. Special Meetings |
1 | |||
Section 3.(a) General |
1 | |||
Section 3.(b) Stockholder-Requested Special Meetings |
2 | |||
Section 4. Notice |
4 | |||
Section 5. Organization and Conduct |
5 | |||
Section 6. Quorum |
5 | |||
Section 7. Voting |
6 | |||
Section 8. Proxies |
6 | |||
Section 9. Voting of Stock by Certain Holders |
6 | |||
Section 10. Inspectors |
7 | |||
Section 11. Advance Notice of Stockholder Nominees for
Director and Other Stockholder Proposals |
7 | |||
Section 11.(a) Annual Meeting of Stockholders |
7 | |||
Section 11.(b) Special Meetings of Stockholders |
10 | |||
Section 11.(c) General |
11 | |||
Section 12. Control Share Acquisition Act |
11 | |||
Section 13. Business Compensation Act |
12 | |||
Section 14. Waiver of Ownership Limits |
12 | |||
ARTICLE III DIRECTORS |
12 | |||
Section 1. General Powers |
12 | |||
Section 2. Number, Tenure, Qualifications and Resignation |
12 | |||
Section 3. Annual and Regular Meetings |
13 | |||
Section 4. Special Meetings |
13 | |||
Section 5. Notice |
13 | |||
Section 6. Quorum |
13 | |||
Section 7. Voting |
14 | |||
Section 8. Organization |
14 | |||
Section 9. Telephone Meetings |
14 | |||
Section 10. Consent by Directors Without a Meeting |
14 | |||
Section 11. Vacancies |
14 | |||
Section 12. Compensation |
15 | |||
Section 13. Reliance |
15 | |||
Section 14. Ratification |
15 | |||
Section 15. Certain Rights of Directors |
15 | |||
Section 16. Emergency Provisions |
16 |
ARTICLE IV COMMITTEES |
16 | |||
Section 1. Number, Tenure and Qualifications |
16 | |||
Section 2. Powers |
16 | |||
Section 3. Meetings |
16 | |||
Section 4. Telephone Meetings |
16 | |||
Section 5. Consent by Committees Without a Meeting |
17 | |||
Section 6. Vacancies |
17 | |||
ARTICLE V OFFICERS |
17 | |||
Section 1. General Provisions |
17 | |||
Section 2. Removal and Resignation |
17 | |||
Section 3. Vacancies |
17 | |||
Section 4. Chairman of the Board |
17 | |||
Section 5. Chief Executive Officer |
18 | |||
Section 6. Chief Operating Officer |
18 | |||
Section 7. Chief Financial Officer |
18 | |||
Section 8. President |
18 | |||
Section 9. Vice Presidents |
18 | |||
Section 10. Secretary |
19 | |||
Section 11. Treasurer |
19 | |||
Section 12. Assistant Secretaries and Assistant Treasurers |
19 | |||
Section 13. Compensation |
19 | |||
ARTICLE VI CONTRACTS, LOANS, CHECK AND DEPOSITS |
19 | |||
Section 1. Contracts |
19 | |||
Section 2. Checks and Drafts |
20 | |||
Section 3. Deposits |
20 | |||
ARTICLE VII STOCK |
20 | |||
Section 1. Certificates |
20 | |||
Section 2. Transfers |
20 | |||
Section 3. Replacement Certificate |
21 | |||
Section 4. Fixing of Record Date |
21 | |||
Section 5. Stock Ledger |
21 | |||
Section 6. Fractional Stock; Issuance of Units |
21 |
ii
ARTICLE VIII ACCOUNTING YEAR |
22 | |||
ARTICLE IX DISTRIBUTIONS |
22 | |||
Section 1. Authorization |
22 | |||
Section 2. Contingencies |
22 | |||
ARTICLE X INVESTMENT POLICY |
22 | |||
ARTICLE XI SEAL |
22 | |||
Section 1. Seal |
22 | |||
Section 2. Affixing Seal |
22 | |||
ARTICLE XII INDEMNIFICATION AND ADVANCE OF EXPENSES |
23 | |||
ARTICLE XIII WAIVER OF NOTICE |
24 | |||
ARTICLE XIV AMENDMENT OF BYLAWS |
24 |
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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 in accordance with these
Bylaws 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
the date and at the time and place set by the Board of Directors.
Section 3. SPECIAL MEETINGS.
(a) General. Each of the chairman of the board, chief executive officer, president
and Board of Directors may call a special meeting of stockholders. Except as provided in subsection
(b)(4) of this Section 3, a special meeting of stockholders shall be held on the date and at the
time and place set by the chairman of the board, chief executive officer, president or Board of
Directors, whoever has called the meeting. Subject to subsection (b) of this Section 3, a special
meeting of stockholders shall also be called by the secretary of the Corporation to act on any
matter that may properly be considered at a meeting of stockholders upon the written request of
stockholders entitled to cast not less than a majority of all the votes entitled to be cast on such
matter at such meeting.
(b) Stockholder-Requested Special Meetings. (1) Any stockholder of record seeking to
have stockholders request a special meeting shall, by sending written notice to the secretary (the
Record Date Request Notice) by registered mail, return receipt requested, request the Board of
Directors to fix a record date to determine the stockholders entitled to request a special meeting
(the Request Record Date). The Record Date Request Notice shall set forth the purpose of the
meeting and the matters proposed to be acted on at it, shall be signed by one or more stockholders
of record as of the date of signature (or their agents duly authorized in a writing accompanying
the Record Date Request Notice), shall bear the date of signature of each such stockholder (or such
agent) and shall set forth all information relating to each such stockholder and each matter
proposed to be
acted on at the meeting that would be required to be disclosed in connection with the
solicitation of proxies for the election of directors in an election contest (even if an election
contest is not involved), or would otherwise be required in connection with such a solicitation, in
each case pursuant to Regulation 14A (or any successor provision) under the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (the Exchange Act).
Upon receiving the Record Date Request Notice, the Board of Directors may fix a Request Record
Date. The Request Record Date shall not precede and shall not be more than ten days after the close
of business on the date on which the resolution fixing the Request Record Date is adopted by the
Board of Directors. If the Board of Directors, within ten days after the date on which a valid
Record Date Request Notice is received, fails to adopt a resolution fixing the Request Record Date,
the Request Record Date shall be the close of business on the tenth day after the first date on
which a Record Date Request Notice is received by the secretary.
(2) In order for any stockholder to request a special meeting to act on any matter that may
properly be considered at a meeting of stockholders, one or more written requests for a special
meeting (collectively, the Special Meeting Request) signed by stockholders of record (or their
agents duly authorized in a writing accompanying the request) as of the Request Record Date
entitled to cast not less than a majority of all of the votes entitled to be cast on such matter at
such meeting (the Special Meeting Percentage) shall be delivered to the secretary. In addition,
the Special Meeting Request shall (a) set forth the purpose of the meeting and the matters proposed
to be acted on at it (which shall be limited to those lawful matters set forth in the Record Date
Request Notice received by the secretary), (b) bear the date of signature of each such stockholder
(or such agent) signing the Special Meeting Request, (c) set forth (i) 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), (ii) the class, series and number of all shares of
stock of the Corporation which are owned (beneficially or of record) by each such stockholder and
(iii) the nominee holder for, and number of, shares of stock of the Corporation owned beneficially
but not of record by such stockholder, (d) be sent to the secretary by registered mail, return
receipt requested, and (e) be received by the secretary within 60 days after the Request Record
Date. Any requesting stockholder (or agent duly authorized in a writing accompanying the revocation
or the Special Meeting Request) may revoke his, her or its request for a special meeting at any
time by written revocation delivered to the secretary.
(3) The secretary shall inform the requesting stockholders of the reasonably estimated cost
of preparing and mailing or delivering the notice of the 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
preparation and mailing or delivery of such notice of the meeting.
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(4) 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 office of the Corporation. In fixing a date for any special
meeting, the chairman of the board, chief executive officer, president or Board of Directors may
consider such factors as he, she or it deems relevant, including, without limitation, the nature of
the matters to be considered, the facts and circumstances surrounding any request for the meeting
and any plan of the Board of Directors to call an annual meeting or a special meeting. In the case
of any Stockholder-Requested Meeting, if the Board of Directors fails to fix a Meeting Record Date
that is a date within 30 days after the Delivery Date, then the close of business on the
30th day after the Delivery Date shall be the Meeting Record Date. The Board of
Directors may revoke the notice for any Stockholder-Requested Meeting in the event that the
requesting stockholders fail to comply with the provisions of paragraph (3) of this Section 3(b).
(5) If written revocations of the Special Meeting Request have been delivered to the
secretary and the result is that stockholders of record (or their agents duly authorized in
writing), as of the Request Record Date, entitled to cast less than the Special Meeting Percentage
have delivered, and not revoked, requests for a special meeting on the matter to the secretary: (i)
if the notice of meeting has not already been delivered, the secretary shall refrain from
delivering the notice of the meeting and send to all requesting stockholders who have not revoked
such requests written notice of any revocation of a request for a special meeting on the matter, or
(ii) if the notice of meeting has been delivered and if the secretary first sends to all requesting
stockholders who have not revoked requests for a special meeting on the matter written notice of
any revocation of a request for the special meeting and written notice of the Corporations
intention to revoke the notice of the meeting or for the chairman of the meeting to adjourn the
meeting without action on the matter, (A) the secretary may revoke the notice of the meeting at any
time before ten days before the commencement of the meeting or (B) the chairman of the meeting may
call the meeting to order and adjourn the meeting without acting on the matter. 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.
3
(6) The chairman of the board, chief executive officer, president or Board of Directors may
appoint regionally or nationally recognized independent inspectors of elections to act as the agent
of the Corporation for the purpose of promptly performing a ministerial review of the validity of
any purported Special Meeting Request received by the secretary. For the purpose of permitting the
inspectors to perform such review, no such purported Special Meeting Request shall be deemed to
have been delivered to the
secretary until the earlier of (i) five Business Days after receipt by the secretary of such
purported request and (ii) such date as the independent inspectors certify to the Corporation that
the valid requests received by the secretary represent, as of the Request Record Date, stockholders
of record entitled to cast not less than the Special Meeting Percentage. Nothing contained in this
paragraph (6) shall in any way be construed to suggest or imply that the Corporation or any
stockholder shall not be entitled to contest the validity of any request, whether during or after
such five Business Day period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and the seeking of
injunctive relief in such litigation).
(7) For purposes of these Bylaws, Business Day shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York City 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 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, by mail, by presenting it to such stockholder personally, by leaving it at the
stockholders residence or usual place of business or by any other means permitted by Maryland law.
If mailed, such notice shall be deemed to be given when deposited in the United States mail
addressed to the stockholder at the stockholders address as it appears on the records of the
Corporation, with postage thereon prepaid. If transmitted electronically, such notice shall be
deemed to be given when transmitted to the stockholder by an electronic transmission to any address
or number of the stockholder at which the stockholder receives electronic transmissions. The
Corporation may give a single notice to all stockholders who share an address, which single notice
shall be effective as to any stockholder at such address, unless a stockholder objects to
receiving such single notice or revokes a prior consent to receiving such single notice. Failure
to give notice of any meeting to one or more stockholders, or any irregularity in such notice,
shall not affect the validity of any meeting fixed in accordance with this Article II or the
validity of any proceedings at any such meeting.
Subject to Section 11(a) of this Article II, any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in the notice, except
such business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of stockholders except as specifically designated in the notice.
The Corporation may postpone or cancel a meeting of stockholders by making a public announcement
(as defined in Section 11(c)(3) of this Article II) of such postponement or cancellation prior to
the meeting. Notice of the date, time and place to which the meeting is postponed shall be given
not less than ten days prior to such date and otherwise in the manner set forth in this section.
4
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 or appointed individual, by the chairman
of the board or, in the case of a vacancy in the office or absence of the chairman of the board, by
one of the following officers present at the meeting in the following order: the vice chairman of
the board, if there is one, the chief executive officer, the president, the vice presidents in
their order of rank and seniority, the secretary, 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, an individual appointed by the Board
of Directors or, in the absence of such appointment, an individual appointed by the chairman of the
meeting shall act as secretary. In the event that the secretary presides at a meeting of
stockholders, an assistant secretary, or, in the absence of all assistant secretaries, an
individual appointed by the Board of Directors or the chairman of the meeting, shall record the
minutes of the meeting. The order of business and all other matters of procedure at any meeting of
stockholders shall be determined by the chairman of the meeting. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the discretion of the
chairman and without any action by the stockholders, are appropriate for the proper conduct of the
meeting, including, without limitation, (a) restricting admission to the time set for the
commencement of the meeting; (b) limiting attendance at the meeting to stockholders of record of
the Corporation, their duly authorized proxies and such other individuals as the chairman of the
meeting may determine; (c) limiting participation at the meeting on any matter to stockholders of
record of the Corporation entitled to vote on such matter, their duly authorized proxies and other
such individuals as the chairman of the meeting may determine; (d) limiting the time allotted to
questions or comments; (e) determining when and for how long the polls should be opened and when
the polls should be closed; (f) maintaining order and security at the meeting; (g) removing any
stockholder or any other individual who refuses to comply with meeting procedures, rules or
guidelines as set forth by the chairman of the meeting; (h) concluding a meeting or recessing or
adjourning the meeting to a later date and time and at a place announced at the meeting; and (i)
complying with any state and local laws and regulations concerning safety and security. Unless
otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required
to be held in accordance with the rules of parliamentary procedure.
Section 6. QUORUM. At any meeting of stockholders, the presence in person or by proxy
of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on
any matter 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 approval of any matter. If
such quorum is not established at any meeting of the stockholders, the chairman of the meeting may
adjourn the meeting sine die or 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.
5
The stockholders present either in person or by proxy, at a meeting which has been duly called
and at which a quorum has been established, may continue to transact business until adjournment,
notwithstanding the withdrawal from the meeting of enough stockholders to leave fewer than would be
required to establish 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 by statute or by the
charter, each outstanding share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Voting on any question or in any election may be
viva voce unless the chairman of the meeting shall order that voting be by ballot or
otherwise.
Section 8. PROXIES. A stockholder may cast the votes entitled to be cast by the
holder of 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, general partner, trustee or managing member 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 fiduciary may vote stock registered in the name of such person in the
capacity of such director or fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify
in writing to the Corporation that any shares of stock registered in the name of the stockholder
are held for the account of a specified person other than the stockholder. The resolution shall set
forth the class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of
certification and the information to be contained in it; if the certification is with respect
to a record date, the time after the record date 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 by the Corporation of such certification,
the person specified in the certification shall be regarded as, for the purposes set forth in the
certification, the holder of record of the specified stock in place of the stockholder who makes
the certification.
6
Section 10. INSPECTORS. The Board of Directors or the chairman of the meeting may
appoint, before or at the meeting, one or more inspectors for the meeting and any successor to the
inspector. The inspectors, if any, shall (i) determine the number of shares of stock represented at
the meeting, in person or by proxy, and the validity and effect of proxies, (ii) receive and
tabulate all votes, ballots or consents, (iii) report such tabulation to the chairman of the
meeting, (iv) hear and determine all challenges and questions arising in connection with the right
to vote, and (v) do such acts as are proper to fairly conduct the election or vote. Each such
report shall be in writing and signed by the inspector or by a majority of them if there is more
than one inspector acting at such meeting. If there is more than one inspector, the report of a
majority shall be the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER
PROPOSALS.
(a) Annual Meetings of Stockholders. (1) Nominations of individuals for election to
the Board of Directors and the proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders (i) pursuant to the 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 by the stockholder
as provided for in this Section 11(a) and at the time of the annual meeting, who is entitled to
vote at the meeting in the election of each individual so nominated or on any such other business
and who has complied with this Section 11(a).
(2) For any nomination 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, in the case of
any such other business, such other business must otherwise be a proper matter for action by the
stockholders. To be timely, a stockholders notice shall set forth all information required under
this Section 11 and shall be delivered to the secretary at the principal executive office of the
Corporation not earlier than the 150th day nor later than 5:00 p.m., Eastern Time, on
the 120th day prior to the first anniversary of the date of the proxy statement (as
defined in Section 11(c)(3) of this Article II) for the preceding years annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced or delayed by more than
30 days from the
first anniversary of the date of the preceding years annual meeting, notice by the stockholder to
be timely must be so delivered not earlier than the 150th day prior to the date of such
annual meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th day
prior to the date of such annual meeting, as originally convened, or the tenth day following the
day on which public announcement of the date of such meeting is first made. The public announcement
of a postponement or adjournment of an annual meeting shall not commence a new time period for the
giving of a stockholders notice as described above.
7
(3) Such stockholders notice shall set forth:
(i) as to each individual whom the stockholder proposes to nominate for election or reelection
as a director (each, a Proposed Nominee), all information relating to the Proposed Nominee that
would be required to be disclosed in connection with the solicitation of proxies for the election
of the Proposed Nominee as a director in an election contest (even if an election contest is not
involved), or would otherwise be required in connection with such solicitation, in each case
pursuant to Regulation 14A (or any successor provision) under the Exchange Act;
(ii) as to any business that the stockholder proposes to bring before the meeting, a
description of such business, the stockholders reasons for proposing such business at the meeting
and any material interest in such business of such stockholder or any Stockholder Associated Person
(as defined below), individually or in the aggregate, including any anticipated benefit to the
stockholder or the Stockholder Associated Person therefrom;
(iii) as to the stockholder giving the notice, any Proposed Nominee and any Stockholder
Associated Person,
(A) the class, series and number of all shares of stock or other securities of the
Corporation or any affiliate thereof (collectively, the Company Securities), if any, which are
owned (beneficially or of record) by such stockholder, Proposed Nominee or Stockholder Associated
Person, the date on which each such Company Security was acquired and the investment intent of such
acquisition, and any short interest (including any opportunity to profit or share in any benefit
from any decrease in the price of such stock or other security) in any Company Securities of any
such person,
(B) the nominee holder for, and number of, any Company Securities owned beneficially but not
of record by such stockholder, Proposed Nominee or Stockholder Associated Person,
(C) whether and the extent to which such stockholder, Proposed Nominee or Stockholder
Associated Person, directly or indirectly (through brokers, nominees or otherwise), is subject to
or during the last six months has engaged in any hedging, derivative or other transaction or series
of transactions or entered into any other agreement, arrangement or understanding (including any
short interest, any borrowing or lending of securities or any proxy or voting agreement), the
effect or intent of which is to
(I) manage risk or benefit of changes in the price of (x) Company Securities or (y) any security of
any entity that was listed in the Bloomberg Lodging REIT Index (a Peer Group Company) for such
stockholder, Proposed Nominee or Stockholder Associated Person or (II) increase or
decrease the voting power of such stockholder, Proposed Nominee or Stockholder Associated Person in
the Corporation or any affiliate thereof (or, as applicable, in any Peer Group Company)
disproportionately to such persons economic interest in the Company Securities (or, as applicable,
in any Peer Group Company) and
8
(D) any substantial interest, direct or indirect (including, without limitation, any existing
or prospective commercial, business or contractual relationship with the Corporation), by security
holdings or otherwise, of such stockholder, Proposed Nominee or Stockholder Associated Person, in
the Corporation or any affiliate thereof, other than an interest arising from the ownership of
Company Securities where such stockholder, Proposed Nominee or Stockholder Associated Person
receives no extra or special benefit not shared on a pro rata basis by all other holders of the
same class or series;
(iv) as to the stockholder giving the notice, any Stockholder Associated Person with an
interest or ownership referred to in clauses (ii) or (iii) of this paragraph (3) of this
Section 11(a) and any Proposed Nominee,
(A) the name and address of such stockholder, as they appear on the Corporations stock
ledger, and the current name and business address, if different, of each such Stockholder
Associated Person and any Proposed Nominee and
(B) the investment strategy or objective, if any, of such stockholder and each such
Stockholder Associated Person who is not an individual and a copy of the prospectus, offering
memorandum or similar document, if any, provided to investors or potential investors in such
stockholder and each such Stockholder Associated Person; and
(v) to the extent known by the stockholder giving the notice, the name and address of any
other stockholder supporting the nominee for election or reelection as a director or the proposal
of other business on the date of such stockholders notice.
(4) Such stockholders notice shall, with respect to any Proposed Nominee, be accompanied by
a certificate executed by the Proposed Nominee (i) certifying that such Proposed Nominee (a) is
not, and will not become a party to, any agreement, arrangement or understanding with any person or
entity other than the Corporation in connection with service or action as a director that has not
been disclosed to the Corporation and (b) will serve as a director of the Corporation if elected;
and (ii) attaching a completed Proposed Nominee questionnaire (which questionnaire shall be
provided by the Corporation, upon request, to the stockholder providing the notice and shall
include all information relating to the Proposed Nominee that would be required to be disclosed in
connection with the solicitation of proxies for the election of the Proposed Nominee as a director
in an election contest (even if an election contest is not involved), or would otherwise be
required in connection with such solicitation, in each case pursuant to Regulation 14A (or any
successor provision) under the Exchange Act and the rules thereunder, or would be
required pursuant to the rules of any national securities exchange or over-the-counter
market).
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(5) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in
the event that the number of directors to be elected to the Board of Directors is increased, and
there is no public announcement of such action at least 130 days prior to the first anniversary of
the date of the proxy statement (as defined in Section 11(c)(3) of this Article II) for 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 at the principal executive office of the
Corporation not later than 5:00 p.m., Eastern Time, on the tenth day following the day on which
such public announcement is first made by the Corporation.
(6) For purposes of this Section 11, Stockholder Associated Person of any stockholder shall
mean (i) any person acting in concert with, such stockholder, (ii) any beneficial owner of shares
of stock of the Corporation owned of record or beneficially by such stockholder (other than a
stockholder that is a depositary) and (iii) any person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control with, such
stockholder or such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of individuals for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be elected only (i) by
or at the direction of the Board of Directors or (ii) provided that the special meeting has been
called in accordance with Section 3(a) of this Article II for the purpose of electing directors, 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 in the election of each individual so nominated and who has 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 individuals to the Board of
Directors, any stockholder may nominate an individual or individuals (as the case may be) for
election as a director as specified in the Corporations notice of meeting, if the stockholders
notice, containing the information required by paragraph (a)(3) of this Section 11, is delivered to
the secretary at the principal executive office of the Corporation not earlier than the
150th day prior to such special meeting and not later than 5:00 p.m., Eastern Time on
the later of the 120th day prior to such special meeting or the tenth day following the
day on which public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. The public announcement
of a postponement or adjournment of a special meeting shall not commence a new time period for the
giving of a stockholders notice as described above.
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(c) General. (1) If information submitted pursuant to this Section 11 by any
stockholder proposing a nominee for election as a director or any proposal for other
business at a meeting of stockholders shall be inaccurate in any material respect, such information
may be deemed not to have been provided in accordance with this Section 11. Any such stockholder
shall notify the Corporation of any inaccuracy or change (within two Business Days of becoming
aware of such inaccuracy or change) in any such information. Upon written request by the secretary
or the Board of Directors, any such stockholder shall provide, within five Business Days of
delivery of such request (or such other period as may be specified in such request), (A) written
verification, satisfactory, in the discretion of the Board of Directors or any authorized officer
of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder
pursuant to this Section 11, and (B) a written update of any information submitted by the
stockholder pursuant to this Section 11 as of an earlier date. If a stockholder fails to provide
such written verification or written update within such period, the information as to which written
verification or a written update was requested may be deemed not to have been provided in
accordance with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11 shall be
eligible for election by stockholders as directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with this
Section 11. The chairman of the meeting shall have the power to determine whether a nomination or
any other business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with this Section 11.
(3) For purposes of this Section 11, the date of the proxy statement shall have the same
meaning as the date of the companys proxy statement released to shareholders as used in Rule
14a-8(e) promulgated under the Exchange Act, as interpreted by the Securities and Exchange
Commission from time to time. Public announcement shall mean disclosure (A) in a press release
reported by the Dow Jones News Service, Associated Press, Business Wire, PR Newswire or other
widely circulated news or wire service or (B) in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 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, or 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. Nothing in this Section
11 shall require disclosure of revocable proxies received by the stockholder or Stockholder
Associated Person pursuant to a solicitation of proxies after the filing of an effective Schedule
14A by such stockholder or Stockholder Associated Person under Section 14(a) of the Exchange Act.
Section 12. 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 (the MGCL), or any successor statute, shall not apply to any acquisition by any person of
shares of stock of the Corporation. Any amendment, alteration or repeal of this section shall be
valid only if approved, at a
meeting duly called, by the affirmative vote of a majority of votes cast by stockholders
entitled to vote generally for directors and the affirmative vote of a majority of Continuing
Directors (as such term is defined in the charter of the Corporation).
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Section 13. BUSINESS COMBINATION ACT. The Board of Directors has adopted a resolution
exempting all business combinations between the Corporation and any person from the provisions of
Title 3, Subtitle 6 of the MGCL, or any successor statute. Pursuant to such resolution, any
alteration or repeal of such resolution by the Board of Directors shall be valid only if approved,
at a meeting duly called, by the affirmative vote of a majority of votes cast by stockholders
entitled to vote generally for directors and the affirmative vote of a majority of Continuing
Directors (as such term is defined in the charter of the Corporation). Any amendment of this
section shall be valid only if approved, at a meeting duly called, by the affirmative vote of a
majority of votes cast by stockholders entitled to vote generally for directors and the affirmative
vote of a majority of Continuing Directors (as such term is defined in the charter of the
Corporation).
Section 14. WAIVER OF OWNERSHIP LIMITS. Notwithstanding any other provision of the
charter of the Corporation or these Bylaws, the Board of Directors will exempt any Person from the
Ownership Limits, provided, that (i) such Person shall not Beneficially Own shares
of Capital Stock that would cause an Individual (as defined below) to Beneficially Own shares of
Capital Stock in excess of the Aggregate Stock Ownership Limit or Common Stock Ownership Limit, and
(ii) the Board of Directors obtains such representations, undertakings and agreements from such
Person as set forth in Section 7.2.7 of the charter of the Corporation. Any amendment, alteration
or repeal of this section shall be valid only if approved by the affirmative vote of a majority of
votes cast by stockholders entitled to vote generally in the election of directors. For purposes of
this Section 14, the term Individual means an individual within the meaning of Code Section
542(a)(2), but not including a qualified trust (as defined in Code Section 856(h)(3)(E)) subject
to the look-through rule of Code Section 856(h)(3)(A)(i). Any other capitalized term used and not
defined herein has the meaning ascribed to such term in the charter of the Corporation.
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, QUALIFICATIONS AND RESIGNATION. 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 MGCL, 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. Any director of
the Corporation may resign at any time by delivering his or her resignation to the Board of
Directors, the chairman of the board or the secretary. Any resignation shall take effect
immediately upon its receipt or at such later time specified in the resignation. The acceptance of
a resignation shall not be necessary to make it effective unless otherwise stated in the
resignation.
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Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors
shall be held immediately after and at the same place as the annual meeting of stockholders, no
notice other than this Bylaw being necessary. In the event such meeting is not so held, the meeting
may be held at such time and place as shall be specified in a notice given as hereinafter provided
for special meetings of the Board of Directors. The Board of Directors may provide, by resolution,
the time and place for the holding of regular meetings of the Board of Directors without other
notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called
by or at the request of the chairman of the board, the chief executive officer, the president or a
majority of the directors then in office. The person or persons authorized to call special meetings
of the Board of Directors may fix any place as the place for holding any special meeting of the
Board of Directors called by them. The Board of Directors may provide, by resolution, the time and
place for the holding of special meetings of the Board of Directors without other notice than such
resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be
delivered personally or by telephone, electronic mail, facsimile transmission, courier or United
States mail 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 is present at such meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice, and provided further that if,
pursuant to applicable law, the charter of the Corporation or these Bylaws,
the vote of a majority or other percentage of a particular group of directors is required for
action, a quorum must also include a majority or such other percentage of such group.
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The directors present at a meeting which has been duly called and at which a quorum has been
established may continue to transact business until adjournment, notwithstanding the withdrawal
from the meeting of enough directors to leave fewer than required to establish a quorum.
Section 7. VOTING. The action of a majority of the directors present at a meeting at
which a quorum is present shall be the action of the Board of Directors, unless the concurrence of
a greater proportion is required for such action by applicable law, the charter or these Bylaws. If
enough directors have withdrawn from a meeting to leave fewer than required to establish a quorum,
but the meeting is not adjourned, the action of the majority of that number of directors necessary
to constitute a quorum at such meeting shall be the action of the Board of Directors, unless the
concurrence of a greater proportion is required for such action by applicable law, the charter of
the Corporation or these Bylaws.
Section 8. ORGANIZATION. At each meeting of the Board of Directors, the chairman of
the board or, in the absence of the chairman, the vice chairman of the board, if any, shall act as
chairman of the meeting. In the absence of both the chairman and vice chairman of the board, the
chief executive officer or, in the absence of the chief executive officer, the president or, in the
absence of the president, a director chosen by a majority of the directors present, shall act as
chairman of the meeting. The secretary or, in his or her absence, an assistant secretary of the
Corporation, or, in the absence of the secretary and all assistant secretaries, an individual
appointed by the chairman of the meeting, shall act as secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or 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. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent
in writing or by electronic transmission to such action is given by each director and is filed with
the minutes of proceedings of the Board of Directors.
Section 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. Except as may be provided by the Board of Directors in setting
the terms of any class or series of preferred stock, any vacancy on the Board of Directors may be
filled only by a majority of the remaining directors, even if the remaining directors do not
constitute a quorum. Any director elected to fill a vacancy
shall serve for the remainder of the full term of the class in which the vacancy occurred and until
a successor is elected and qualifies.
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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 perform or engage in as
directors; but nothing herein contained shall be construed to preclude any directors from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 13. RELIANCE. Each director and officer of the Corporation shall, in the
performance of his or her duties with respect to the Corporation, be entitled to rely on any
information, opinion, report or statement, including any financial statement or other financial
data, prepared or presented by an officer or employee of the Corporation whom the director or
officer reasonably believes to be reliable and competent in the matters presented, by a lawyer,
certified public accountant or other person, as to a matter which the director or officer
reasonably believes to be within the persons professional or expert competence, or, with respect
to a director, by a committee of the Board of Directors on which the director does not serve, as to
a matter within its designated authority, if the director reasonably believes the committee to
merit confidence.
Section 14. RATIFICATION. The Board of Directors or the stockholders may ratify and
make binding on the Corporation any action or inaction by the Corporation or its officers to the
extent that the Board of Directors or the stockholders could have originally authorized the matter.
Moreover, any action or inaction questioned in any stockholders derivative proceeding or any
other proceeding on the ground of lack of authority, defective or irregular execution, adverse
interest of a director, officer or stockholder, non-disclosure, miscomputation, the application of
improper principles or practices of accounting or otherwise, may be ratified, before or after
judgment, by the Board of Directors or by the stockholders, and if so ratified, shall have the same
force and effect as if the questioned action or inaction had been originally duly authorized, and
such ratification shall be binding upon the Corporation and its stockholders and shall constitute a
bar to any claim or execution of any judgment in respect of such questioned action or inaction.
Section 15. CERTAIN RIGHTS OF DIRECTORS. A director who is not also an officer of
the Corporation shall have no responsibility to devote his or her full time to the affairs of the
Corporation. Any director, 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, in addition to or in competition with those of or relating to the
Corporation.
15
Section 16 . EMERGENCY PROVISIONS. Notwithstanding any other provision in the
charter or these Bylaws, this Section 16 shall apply during the existence of any catastrophe, or
other similar emergency condition, as a result of which a quorum of the Board of Directors under
Article III of these Bylaws cannot readily be obtained (an Emergency). During any Emergency,
unless otherwise provided by the Board of Directors, (i) a meeting of the Board of Directors or a
committee thereof may be called by any director or officer by any means feasible under the
circumstances; (ii) notice of any meeting of the Board of Directors during such an Emergency may be
given less than 24 hours prior to the meeting to as many directors and by such means as may be
feasible at the time, including publication, television or radio; and (iii) the number of directors
necessary to constitute a quorum shall be one-third of the entire Board of Directors.
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, a
Nominating and Corporate Governance 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 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.
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.
16
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing or by electronic transmission to such
action is given by each member of the committee and is filed with the minutes of proceedings of
such committee.
Section 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 any vacancy, to
designate an alternate member 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 it shall deem necessary or desirable. The officers of the Corporation shall be
elected annually by the Board of Directors, except that the chief executive officer or president
may from time to time appoint one or more vice presidents, assistant secretaries and assistant
treasurers or other officers. Each officer shall serve 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 delivering his or her resignation to the Board of Directors, the chairman of the board, the
chief executive officer, the president or the secretary. Any resignation shall take effect
immediately upon its receipt or at such later time specified in the resignation. The acceptance of
a resignation shall not be necessary to make it effective unless otherwise stated in the
resignation. Such resignation shall be without prejudice to the contract rights, if any, of the
Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors
for the balance of the term.
Section 4.
CHAIRMAN OF THE BOARD. The Board of Directors may designate from among its
members a chairman of the board. The chairman of the board shall preside over the meetings of the
Board of Directors. The chairman of the board shall
perform such other duties as may be assigned to him or her by these Bylaws or the Board of
Directors.
17
Section 5. 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. He or she may execute any deed,
mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of
the Corporation or shall be required by law to be otherwise executed; and in general shall perform
all duties incident to the office of chief executive officer and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 6. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief
operating officer. The chief operating officer shall have the responsibilities and duties as
determined by the Board of Directors or the chief executive officer.
Section 7. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief
financial officer. The chief financial officer shall have the responsibilities and duties as
determined by the Board of Directors or the chief executive officer.
Section 8. PRESIDENT. In the absence of a chief executive officer, the president
shall in general supervise and control all of the business and affairs of the Corporation. In the
absence of a designation of a chief operating officer by the Board of Directors, the president
shall be the chief operating officer. He or she may execute any deed, mortgage, bond, contract or
other instrument, except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be
required by law to be otherwise executed; and in general shall perform all duties incident to the
office of president and such other duties as may be prescribed by the Board of Directors from time
to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in the event of a
vacancy in such office, the vice president (or in the event there be more than one vice president,
the vice presidents in the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be assigned to such vice
president by the chief executive officer, the president or the Board of Directors. The Board of
Directors may designate one or more vice presidents as executive vice president, senior vice
president, or vice president for particular areas of responsibility.
18
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of
the stockholders, the Board of Directors and committees of the Board of
Directors in one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of
the corporate records and of the seal of the Corporation; (d) keep a register of the post office
address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have
general charge of the stock transfer books of the Corporation; and (f) in general perform such
other duties as from time to time may be assigned to him or her by the chief executive officer, the
president or the Board of Directors.
Section 11. TREASURER. The treasurer shall have the custody of the funds and
securities of the Corporation, shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation, 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 and in general perform such other duties as from time to time may be assigned to him or
her by the chief executive officer, the president or the Board of Directors. In the absence of a
designation of a chief financial officer by the Board of Directors, the treasurer shall be the
chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the president and
Board of Directors, at the regular meetings of the Board of Directors or whenever it may so
require, an account of all his or her transactions as treasurer and of the financial condition of
the Corporation.
Section 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 chief executive officer, the president or the Board
of Directors.
Section 13. COMPENSATION. The compensation of the officers shall be fixed from time
to time by or under the authority of the Board of Directors and no officer shall be prevented from
receiving such compensation by reason of the fact that he or she is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer or agent to
enter into any contract or to execute and deliver any instrument in the name of and on behalf of
the Corporation and such authority may be general or confined to specific instances. Any agreement,
deed, mortgage, lease or other document shall be valid and binding upon the Corporation when duly
authorized or ratified by action of the Board of Directors and executed by an authorized person.
19
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 or invested from time to time to the credit of the Corporation as the Board of Directors,
the chief executive officer, the president, the chief financial officer, or any other officer
designated by the Board of Directors may determine.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Except as may be otherwise provided by the Board of
Directors, stockholders of the Corporation are not entitled to certificates representing the shares
of stock held by them. In the event that the Corporation issues shares of stock represented by
certificates, such certificates shall be in such form as prescribed by the Board of Directors or a
duly authorized officer, shall contain the statements and information required by the MGCL and
shall be signed by the officers of the Corporation in the manner permitted by the MGCL. In the
event that the Corporation issues shares of stock without certificates, to the extent then required
by the MGCL, the Corporation shall provide to the record holders of such shares a written statement
of the information required by the MGCL to be included on stock certificates. There shall be no
differences in the rights and obligations of stockholders based on whether or not their shares are
represented by certificates
Section 2. TRANSFERS. All transfers of shares of stock shall be made on the books
of the Corporation, by the holder of the shares, in person or by his or her attorney, in such
manner as the Board of Directors or any officer of the Corporation may prescribe and, if such
shares are certificated, upon surrender of certificates duly endorsed. The issuance of a new
certificate upon the transfer of certificated shares is subject to the determination of the Board
of Directors that such shares shall no longer be represented by certificates. Upon the transfer of
any uncertificated shares, to the extent then required by the MGCL, the Corporation shall provide
to the record holders of such shares a written statement of the information required by the MGCL to
be included on stock certificates.
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 expressly provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class or series of stock will be
subject in all respects to the charter of the Corporation and all of the terms and conditions
contained therein.
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Section 3. REPLACEMENT CERTIFICATE. Any officer of the Corporation may direct a new
certificate or certificates to be issued in place of any certificate or certificates theretofore
issued by the Corporation alleged to have been lost, destroyed, stolen or mutilated, upon the
making of an affidavit of that fact by the person claiming the certificate to be lost, destroyed,
stolen or mutilated; provided, however, if such shares have ceased to be certificated, no new
certificate shall be issued unless requested in writing by such stockholder and the Board of
Directors has determined that such certificates may be issued. Unless otherwise determined by an
officer of the Corporation, the owner of such lost, destroyed, stolen or mutilated certificate or
certificates, or his or her legal representative, shall be required, as a condition precedent to
the issuance of a new certificate or certificates, to give the Corporation a bond in such sums as
it may direct as indemnity against any claim that may be made against the Corporation.
Section 4. 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.
When a record date for the determination of stockholders entitled to notice of and to vote at
any meeting of stockholders has been set as provided in this section, such record date shall
continue to apply to the meeting if adjourned or postponed, except if the meeting is adjourned to a
date more than 120 days or postponed to a date more than 90 days after the record date originally
fixed for the meeting, in which case a new record date for such meeting may be determined as set
forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at
the office of its counsel, accountants or transfer agent, an original or duplicate stock 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 authorize
the Corporation to issue fractional stock or authorize the issuance of scrip, all on such terms and
under such conditions as it 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.
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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, for
repairing or maintaining any property of the Corporation or for such other purpose as the Board of
Directors shall determine, and the Board of Directors may modify or abolish any such reserve.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of Directors may from
time to time adopt, amend, revise or terminate any policy or policies with respect to investments
by the Corporation as it shall deem appropriate in its sole discretion.
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.
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ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time, the Corporation
shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to
indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any individual who is a present or former director or officer of the Corporation
and who is made or threatened to be made a party to the proceeding by reason of his or her service
in that capacity or (b) any individual who, while a director or officer of the Corporation and at
the request of the Corporation, serves or has served as a director, officer, partner, trustee,
member or manager of another corporation, real estate investment trust, limited liability company,
partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or
threatened to be made a party to the proceeding by reason of his or her service in that capacity.
The rights to indemnification and advance of expenses provided by the charter of the Corporation
and these Bylaws shall vest immediately upon election of a director or officer. The Corporation
may, with the approval of its Board of Directors, provide such indemnification and advance for
expenses to an individual who served a predecessor of the Corporation in any of the capacities
described in (a) or (b) above and to any employee or agent of the Corporation or a predecessor of
the Corporation. The indemnification and payment or reimbursement of expenses provided in these
Bylaws shall not be deemed exclusive of or limit in any way other rights to which any person
seeking indemnification or payment or reimbursement of expenses may be or may become entitled under
any bylaw, resolution, insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other
provision of the charter of the Corporation or these Bylaws 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 of a meeting 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, given 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 of such meeting, 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 has not been 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.
Adopted and effective by Resolution of the Board of Directors as of December 15, 2009.
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