Attached files
Exhibit 3.7
FOURTHFIFTH AMENDED AND RESTATED BYLAWS
OF
INLAND WESTERN RETAIL REAL ESTATE
TRUSTPROPERTIES OF AMERICA, INC.
ARTICLE I
OFFICES AND FISCAL YEAR
SECTION 1. REGISTERED OFFICE/AGENT. Inland Western Retail Real Estate TrustProperties of America, Inc.
(the “Company”) shall continuously maintain in the State of Maryland a registered office and a registered agent whose office is identical with such registered office. The address of the Company’s registered office in the State of
Maryland is 300 East Lombard351 West Camden Street, Baltimore, Maryland 21202.21201.
The name of the Company’s registered agent at such address is The Corporation Trust Incorporated. The Company reserves the power to change its registered agent and registered office at any time.
SECTION 2. PRINCIPAL OFFICE. The post office address of the principal office of the Company in the State of Maryland is c/o The
Corporation Trust Incorporated, 300 East Lombard351 West Camden Street, Baltimore, Maryland
21202.21201.
SECTION 3. OTHER OFFICES. The Company may also have offices other than its principal office at such other places both within and without the State of Maryland as the Board of Directors of the Company (the “Board”) may from time to time determine or as the business of the Company may require.
SECTION 4. FISCAL AND TAXABLE YEARS. The fiscal and taxable years of the Company shall begin
on January 1 and end on December 31.ACCOUNTING YEAR. The Board shall have the power, from time to time, to fix the fiscal year of the Company by a duly adopted
resolution; provided that, unless otherwise provided by the Board, the Company’s fiscal year shall be the calendar
year.
ARTICLE I I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting of the stockholders of the Company (the “Stockholders”) shall be held on the first Tuesday in May of each year or on such other day as the Board may determine. The purpose of each annual meeting of the Stockholders is to elect directors of the Company (the “Directors”) and to transact such other business, as may properly come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day (as defined in Section 2(b)(7) of this Article II).
SECTION 2. SPECIAL MEETINGS. Special meetings of the Stockholders may be called by the chairman, the president, a majority of the
Directors or a majority of the Independent Directors (as defined in the Articles of Incorporation of the Company), and shall be called by the secretary or another officer of the Company upon written request (which request states the purpose of the
meeting and the matter(s) to be acted upon) of Stockholders holding in the aggregate not less than 10% of the outstanding shares of capital stock of the Company (“Shares”)
entitled to vote at such meeting. Upon receipt of such a written request, the secretary of the Company shall inform the Stockholders making the request of the reasonably estimated cost of preparing and mailing a
notice of such meeting; and upon payment of these costs to the Company, notify each Stockholder entitled to notice of the meeting not less than fifteen (15) nor more than sixty (60) days prior to the date of such meeting. Unless requested
by the Stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting, a special meeting need not be called to consider any matter which is substantially the same as a matter voted on
at any special meeting of the Stockholders held during the preceding 12 months. At such meeting, a majority of then outstanding shares may, without the necessity for concurrence by the Board of Directors, vote to amend the Articles (as defined
below), terminate the Company or remove any member of the Board of Directors, consistent with these Bylaws.
(a) General. The Chairman of the Board, President, Chief Executive Officer, a majority of the Directors or a majority of the Independent Directors (as defined in the Articles of Incorporation of the Company) may call a special meeting of the Stockholders. Subject to Section 2(b)(3), a special meeting of Stockholders shall also be called by the Secretary of the Company (the “Secretary”) 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 Meeting
(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 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, each individual whom the Stockholder proposes to nominate for election as a Director 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 (or the election of each such individual, if applicable) 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 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. If the Board, within ten days after the date on which a valid Record Date Request Notice is received, fails to adopt a resolution fixing the Request Record Date, the Request Record Date shall be the close of business on the tenth day after the first date on which the Record Date Request Notice is received by the Secretary.
(2) In order for any Stockholder to request a special meeting 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 (i) 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), (ii) bear the date of signature of each such Stockholder (or such agent) signing the Special Meeting Request, (iii) set forth (A) the name and address, as they appear in the Company’s books, of each Stockholder signing such request (or on whose behalf the Special Meeting Request is signed), (B) the class, series and number of all shares of stock of the Company which are owned (beneficially or of record) by each such Stockholder, and (C) the nominee holder for, and number of, shares of stock of the Company owned beneficially but not of record by each such Stockholder, (iv) be sent to the Secretary by registered mail, return receipt requested, and (v) 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 of 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 Company’s proxy materials). The Secretary shall not be required to call a special meeting upon Stockholder request and such meeting shall not be held unless, in addition to the documents required by Section 2(b)(2), the Secretary receives payment of such reasonably estimated cost prior to the preparation and mailing or delivery of such notice of the meeting.
(4) Except as provided in the next sentence, any special meeting shall be held at such place, date and time as may be designated by the Chairman of the Board, President, Chief Executive Officer or Board, whoever has called the meeting. In the case of any special meeting called by the Secretary upon the
2
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; 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”); provided, further, that if the Board 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., Eastern 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; provided, further, that in the event that the Board 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 Company. In fixing a date for any special meeting, the Chairman of the Board, Chief Executive Officer, President or Board 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 to call an annual meeting or a special meeting. In the case of any Stockholder-Requested Meeting, if the Board 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 may revoke the notice for any Stockholder-Requested Meeting in the event that the requesting Stockholders fail to comply with the provisions of Section 2(b)(3).
(5) If written revocations of the Special Meeting Request have been delivered to the Secretary by requesting Stockholders 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 Company’s intention to revoke the notice of the meeting, or for the chairman of the meeting to adjourn the meeting without action on the matter, then (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.
(6) The Chairman of the Board, Chief Executive Officer, President or Board may appoint regionally or nationally recognized independent inspectors of elections to act as the agent of the Company 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 Company 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 (f) shall in any way be construed to suggest or imply that the Company 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 3. PLACE OF MEETINGS. Each meeting of the Stockholders for the election of Directors shall be held at the principal executive offices of the Company unless the Board shall by resolution designate any other place for such meeting. Meetings of Stockholders for any other purpose may be held at such place, within or without the State of Maryland, and at such time as shall be determined pursuant to Section 2 of this Article II, and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
3
SECTION 4. NOTICE OF MEETINGS. Except as provided in the second sentence of
Section 2(a) of this Article II, not less than ten (10) nor more than ninety (90) days before an annual or a special meeting of Stockholders, the
secretarySecretary shall give to each Stockholder entitled to vote at such meeting and to each Stockholder not entitled to vote who is entitled to notice of the
meeting, written or printed notice 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, either by mail, by presenting it to such Stockholder personally or, by leaving it
at such Stockholder’s residence or usual place of business, or by any other means permitted by Maryland law. If mailed, such notice shall be deemed to be given when deposited in
the United States mail addressed to the Stockholder at its post officesuch
Stockholder’s address whichas
it appears inon the records of the Company, 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 Company 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.
SECTION 5. SCOPE OF NOTICE. AnySubject to
Section 12(a)(1) of this Article II, any business of the Company may be transacted at an annual meeting of Stockholders without being specifically designated in the notice required in Section 4 of this Article II, except such business
as is required by any statute to be stated in such notice. No business shall be transacted at aany special meeting of Stockholders except as specifically designated in
the notice. The Company may postpone or cancel a meeting of Stockholders by making a
“public
announcement” (as defined in Section 12(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 Section 4 of Article 2.
SECTION 6. WAIVER OF NOTICE. Anything in these Bylaws to the contrary notwithstanding, with respect to any meeting of the Stockholders, any Stockholder who in person or by proxy shall have waived in writing notice of the meeting, either before or after such meeting, or who shall attend the meeting in person or by proxy, shall be deemed to have waived notice of such meeting unless such Stockholder attends for the express purpose of objecting, at the beginning of the meeting, and does so object to the transaction of any business because the meeting is not lawfully called or convened.
SECTION 7. QUORUM; MANNER OF ACTING AND ORDER OF BUSINESS. Subject to any other provision of these Bylaws, the Articles of Incorporation
of the Company, as amended and restated (the “Articles”), and the Maryland General Corporation Law (the
“MGCL”)or any statute, as to the vote that is required for a specified action, the presence in
person or by proxy of the holders of a majority of the outstanding Sharesshares entitled to vote at any meeting of Stockholders shall constitute a quorum for the
transaction of business and may, without the necessity for concurrence by the Directors, vote to elect the Directors. The vote of the holders of a majority of the
Sharesshares entitled to vote, present in person or represented by proxy at a meeting at which a quorum is present, shall be binding on all Stockholders, unless the
vote of a greater number or voting by classes is required by the MGCLMaryland General Corporate Law (the
“MGCL”)
, the Articles or these Bylaws. The Stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of Stockholders such that less than a quorum is
present.
In the absence of a quorum, Stockholders holding a majority of the Shares present in person or by proxy and
entitled to vote, or if no Stockholders are present, any officer entitled to preside at or act as secretary of the meeting,the chairman of the meeting may adjourn the meeting
to another time and place.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. Any business which might have been transacted at the original meeting may be transacted at any adjourned meeting at which a quorum is present. No notice of an adjourned
meeting need be given if the time and place are announced at the meeting at which the adjournment is taken except that, if adjournment is for more than 120 days or if, after the adjournment, a new record date is fixed for
the meeting, notice of the adjourned meeting shall be given pursuant to Section 4 of this Article II.
4
Meetings of the Stockholders shall be presided over by the chairman, or in his
absence by the president, or in his absence by a vice president, or in the absence of the foregoing persons by a chairman designated by the Board, or in the absence of such designation, by a chairman chosen at the meeting. The secretary of the
Company shall act as secretary of the meeting, but in his absence the chairman of the meeting may appoint any person to act as secretary of the meeting. The order of business at all meetings of the Stockholders shall be determined by the chairman.
The order of business so determined, however, may be changed by vote of the holders of a majority of the Shares present in person or represented by proxy at a meeting at which a quorum is present.
Every meeting of Stockholders shall be conducted by an individual appointed by the Board 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, one of the following officers present at the meeting in the following order: the Vice Chairman of the Board, if there be one, the Chief Executive Officer, the President, the Vice Presidents in their order of rank and seniority, 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 Secretary’s absence, an Assistant Secretary, or in the absence of both the Secretary and Assistant Secretaries, an individual appointed by the Board or, in the absence of such appointment, an individual appointed by the chairman of the meeting shall act as Secretary. In the event that the Secretary presides at a meeting of the Stockholders, an Assistant Secretary, or, in the absence of 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 the Stockholders shall be determined by the chairman. 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 Company, their duly authorized proxies and other such individuals as the chairman of the meeting may determine; (c) limiting participation at the meeting on any matter to Stockholders of record of the Company 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 8. VOTING; PROXIES.
(a) Except as provided in paragraph
(b) of this Section 8, or the Articles, each Stockholder of record on the record date, as determined pursuant to Section 6 of Article VI of these Bylaws,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, the Articles or these Bylaws. Unless otherwise provided in the Articles or these Bylaws or expressly required by the MGCL,
each share of stock of the Company outstanding shall be entitled to one vote for every Share registered in his name. Each Stockholder entitled to vote at any meeting of Stockholders or to express consent to or dissent from corporate
action in writing without a meeting may authorize another person to act for him by proxy. on each matter submitted to a vote at a meeting of Stockholders.
(b) A
Stockholder may cast the votes that the Stockholder is entitled to cast either in person or by proxy executed by the Stockholder or by the
Stockholder’s duly authorized agent in any manner
permitted by law. Such proxy or evidence of authorization of such proxy shall be filed with the Secretary before or at the meeting. No proxy shall be valid after 11 months from its
date of execution, unless otherwise provided in the proxy provides for a longer period.
5
(b) Notwithstanding any other provision in these Bylaws, Subtitle 7 of Title 3 of
the MGCL (or any successor statute) shall not apply to any acquisition by The Inland Group, Inc., a Delaware corporation, or any affiliate of The Inland Group, Inc. This Section 8(b) may be altered or repealed, in whole or in part, by a
majority of the Directors (including a majority of the Independent Directors) at any time.
(c) With respect
to Shares held by the advisor and the Board of Directors, neither the advisor, nor the members of the Board of Directors, nor any affiliate will vote or consent on matters submitted to the Stockholders regarding the removal of the advisor, Board of
Directors or any affiliate or any transaction between the Company and any of them.
SECTION 9. FIXING DATE
FOR DETERMINATION OF SHAREHOLDERS OF RECORD. In order that the Company may determine the Stockholders entitled to notice of or to vote at any meeting of Stockholders or any adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of Shares or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be
(i) more than ninety (90) nor less than ten (10) days before the date of such meeting nor (ii) more than ninety (90) days prior to any other action. If no record date is fixed: (a) the record date for determining
Stockholders entitled to notice of or to vote at a meeting of Stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; and (b) the record date for determining Stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. A determination of Stockholders
of record entitled to notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS.
Any SharesStock of the Company registered in the name of a corporation, partnership, limited liability
company, trust or other entity, if entitled to be voted, may be voted by the president, a vice president, a general partner or, a managing member,
trustee or other duly-authorized officer or agent thereof, as the case may be, or by a proxy appointed by any of the foregoing individuals, unless some other
person, who has been appointed to vote such Shares pursuant to a bylaw or a resolution of the governing board of such corporation or other entity or agreement of the partners of the partnership, presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such Shares. Any trustee. The Company may request such documentation as it deems necessary to establish the authority of any such
individual to vote such stock. Any director or other fiduciary may vote Sharesshares registered in his
or her name asin such
fiduciarycapacity, either in person or by proxy.
Shares of stock of the Company 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 Sharesshares 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 Sharesshares at any given time.
The Directors may adopt by resolution a procedure by which a Stockholder may certify in writing to the Company that any Shares
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, and any other provisions with respect to the procedure which the Directors consider 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 Shares in place of the Stockholder who makes the certification.
6
SECTION 11.
SECTION 10. INSPECTORS OF ELECTION.
(a) In
advance of any meeting of Stockholders, the Board may appoint inspectors of election to act at each meeting of Stockholders and any adjournment thereof. If inspectors of election are not so appointed, the chairman of the meeting may, and upon the
request of any Stockholder or his proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one or three. If appointed at the meeting upon the request of one or more Stockholders or proxies, the vote of the
holders of a majority of Shares present in person or by proxy shall determine whether one or three inspectors are appointed. In any case, if any person appointed as an inspector fails to appear or fails or refuses to act, the vacancy may be filled
by appointment made by the Directors in advance of the meeting or at the meeting by the person acting as chairman.
(b) The
inspector(s) of election shall determine the number of outstanding Shares, the Shares The Board or the chairman of the meeting may appoint, before or at the meeting, one or more
inspectors for the meeting and any successor thereto. The inspectors, if any, shall (a) determine the number of shares of stock represented at the meeting, in person or by
proxy, and the existence of a quorum, shall receive votes or consents, shall count and tabulate all votes and shall determine the result; and in connection therewith, the inspector(s) shall determine the authority, validity and effect of
proxies,validity and effect of proxies, (b) receive and tabulate all votes, ballots or consents, (c) report such tabulation to the chairman of the meeting,
(d) hear and determine all challenges and questions arising in connection with the right to vote, and
(e) do such other ministerial acts as may beare proper to fairly conduct the
election or vote with fairness to all Stockholders. If there are three inspectors of election, the decision, act or certificate of a majority is effective in all respects as the decision, act or certificate of all. If no inspectors of
election are appointed, the secretary shall pass upon all questions and shall have all other duties specified in this Section 11. 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.
(c) Upon request of the chairman of the meeting or any Stockholder or his proxy, the inspector(s) of election shall make a report in writing of any challenge or question or other matter determined
by him and shall execute a certificate of any fact found in connection therewith. Any such report or certificate shall be filed with the record of the meeting.
SECTION 12. REPORTS TO STOCKHOLDERS.
(a) The Directors
shall submit to the Stockholders at or before the annual meeting of Stockholders a report of the business and operations of the Company during such fiscal year, containing a balance sheet and a statement of income and surplus of the Company,
accompanied by the certification of an independent certified public accountant, and such further information as the Directors may determine is required pursuant to any law or regulation to which the Company is
subject or is deemed desirable. Within the earlier of twenty (20) days after the annual meeting of Stockholders or one hundred and twenty (120) days after the end of the fiscal year of the Company, the Directors shall place the annual
report on file at the principal office of the Company and with any governmental agencies as may be required by law and as the Directors may deem appropriate.
(b) Not later than forty-five (45) days after the end of each of the first three (3) quarterly periods of each fiscal year, the Directors shall deliver or cause to be delivered an
interim report to the Stockholders containing unaudited financial statements for such quarter and for the period from the beginning of the fiscal year to the end of such quarter, and such further information as the Directors may determine is
required pursuant to any law or regulation to which the Company is subject or is deemed desirable.
SECTION
13. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The secretary shall make, at least ten (10) days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each Stockholder and the number of Shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any Stockholder who is present.
7
SECTION 14.
SECTION 11. ACTION WITHOUT A MEETING. Any action required or permitted to be taken at a meeting of Stockholders may be taken without a meeting if a unanimous consent in
writing, setting forth such action, is signed is given in writing or by electronic transmission by each Stockholder entitled to vote on the matter and
any other Stockholder entitled to notice of a meeting of Stockholders (but not to vote thereat) has waived in writing any right to dissent from such action, and such consent and waiver are filed with the minutes of proceedings of the
Stockholders.
SECTION 15.12. NOMINATIONS AND
STOCKHOLDER BUSINESS.
(a) Annual Meetings of Stockholders.
(1) Nominations of personsindividuals for election to the
Board 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
Company’s notice of meeting; (ii) (i) by or at the direction of the Board;
or, (iiiii) by any Stockholder of the Company who was a Stockholder of record
both at the time of giving of notice by the Stockholder as provided for in this
Section 15(a)12(a)(1) and at the time of the annual meeting, who is entitled to vote at the meeting and
whoin the election of each individual so nominated or on any such other business and who has complied with the notice procedures set forth in this
Section 15(a)this Section 12(a)(1) or (iii) to the extent required by other applicable law by the persons and subject to the applicable requirements provided for
therein.
(2) For nominationsany
nomination or other business to be properly brought before an annual meeting by a Stockholder pursuant to clause (iiiii) of paragraph (a)(1) of this
Section 15,12, the Stockholder must have given timely notice thereof in writing to the secretary of the Company. To be
timely,Secretary and, in the case of such other business, must otherwise be a proper matter for action by the
Stockholders. A Stockholder’s notice shall be timely if it sets forth all information required under this Section 12(a) and is delivered to the
secretarySecretary at the principal executive offices of the Company not less than 45 days before the date on which the Company first mailed its notice of
meeting and accompanying proxy materials for the prior year’s annual meeting of Stockholders. office of the Company 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 notice for the preceding
year’s 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 year’s annual meeting, notice
by the Stockholder to be timely must be so delivered not earlier than the 150th day prior to the date of such annual meeting and not later than 5:00 p.m., Eastern 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. In addition, with respect to the first annual meeting after the effectiveness of these Fifth Amended and Restated Bylaws
occurs, a Stockholder’s notice also shall be timely
if either (i) it was received prior to such effectiveness and complied with all applicable requirements pursuant to the bylaws of the Company that were effective immediately prior to the effectiveness of these Fifth Amended and Restated Bylaws
or (ii) if these Fifth Amended and Restated Bylaws become effective after the 120th day prior to the first anniversary of the date of the notice for the preceding
year’s annual meeting, the
Stockholder’s notice sets forth all information required under this Section 12(a) and is delivered to the
Secretary at the principal executive office of the Company on or before the earlier of the 30th day after these Fifth Amended and Restated Bylaws become effective or the date by which such notice would have been required to be delivered pursuant to
the bylaws of the Company that were effective immediately prior to the effectiveness of these Fifth Amended and Restated Bylaws. The public announcement of a postponement or adjournment of an annual meeting shall not commence a new time period for
the giving of a Stockholder’s notice as described above.
(3) Such Stockholder’s notice shall set forth:
(iA) as to each
personindividual whom the Stockholder proposes to nominate for election or reelection as a Director (each, a
“Proposed
Nominee”) all information relating to such
personthe Proposed Nominee that iswould be required to be disclosed in
solicitationsconnection with the solicitation of proxies for the election of Directors, or
isthe Proposed Nominee as a Director in an election contest (even if an
8
election contest is not involved), or would otherwise be
required in connection with such solicitation, in each case pursuant to Rule 14a-8Regulation 14A (or any
successor provision) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee
and to serving as a Director if elected); (ii;
(B) as to any other business that the Stockholder proposes to bring
before the meeting, a brief description of thesuch business desired to be brought before the meeting,
the Stockholder’s reasons for
conductingproposing such business at the meeting and any material interest in such business of such Stockholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) or any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the
Stockholder or Stockholder Associated Person;
(C) as to the Stockholder giving the notice any Proposed Nominee and any Stockholder Associated Person,
(i) the class, series and number of all shares of stock or other securities of the Company (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,
(ii) 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,
(iii) any substantial interest, direct or indirect (including, without limitation, any existing or prospective commercial, business or contractual relationship with the Company), by security holdings or otherwise, of such Stockholder, Proposed Nominee or Stockholder Associated Person, individually or in the aggregate, in the Company, 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 holders of the same class or series, and
(iv) whether and the extent to which such Stockholder, Proposed Nominee or Stockholder Associated Person is subject to or during the last six months has, directly or indirectly (through brokers, nominees or otherwise), 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 manage risk or benefit of changes in the price of Company Securities for such Stockholder, Proposed Nominee or Stockholder Associated Person or to increase or decrease the voting power of such Stockholder, Proposed Nominee or Stockholder Associated Person in the Company disproportionately to such person’s economic interest in the Company Securities;
(D) as to the Stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made,, any Stockholder Associated Person with an interest or ownership referred to in
clauses (ii) or (iii) of paragraph (C) of this Section 12(a)(3) and any Proposed Nominee,
(i) the name and address of such Stockholder, as they appear on the Company’s books, and that of such beneficial owner, and the
class and number of Shares which are owned beneficially and of record by such beneficial owner and such Stockholder.stock ledger, and the current name and business address, if
different, of each such Stockholder Associated Person and any Proposed Nominee, and
9
(ii) 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
(E) to the extent known by the Stockholder giving the notice, the name and address of any other Stockholder supporting any Proposed Nominee or the proposal of other business on the date of such Stockholder’s notice.
(3) 4) Such
Stockholder’s 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 Company in connection with service or action as a
Director that has not been disclosed to the Company and (B) will serve as a Director of the Company if elected; and (ii) attaching a completed Proposed Nominee questionnaire (which questionnaire shall be provided by the Company, 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)
(5) Notwithstanding anything in the second sentence of paragraph
(a)(2this subsection (e) of this Section 1512(a)(3) to the contrary, in the event
that the number of Directors to be elected to the Board is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board made by the Company at least
70of such action at least 130 days prior to the first anniversary of the date of the notice for the preceding
year’s annual meeting, a Stockholder’s notice required by this Section 1512(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 secretarySecretary at the principal executive
officesoffice of the Company not later than the close of business5:00 p.m., Eastern
Time, on the tenth day following the day on which such public announcement to Stockholders is first made by the Company.
(6) For purposes of this Section 12(a), “Stockholder Associated Person” of any Stockholder means (i) any person acting in concert with such Stockholder, (ii) any beneficial owner of shares of stock of the Company 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 Company’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of Stockholders at which Directors are to be elected: (i) pursuant to
the Company’s notice of meeting; (ii) by or at the direction of the Board; or (iii) provided that the Board has determined that Directors shall be elected at such special meeting, by any Stockholder
of the Company who is a Stockholder of record at the time of giving of notice provided for in this Section 15(b), who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 15(b). In the
event the Company calls for a special meeting of Stockholders for the purpose of electing one or more Directors to the Board, any such Stockholder may nominate a person or persons (as the case may be) for election to such position as specified in
the Company’s notice of meeting, if the Stockholder’s notice required by paragraph (a)(2) of this Section 15 shall be delivered to the secretary at the principal
executive offices of the Company not earlier than the 90th day prior to such special meeting and not later than the close of business on the later of the 60th 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 to be elected at such meeting.
10
(c) General.
(1) If information submitted pursuant to this Section 12 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 12. Any such Stockholder shall notify the Company 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, 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), (i) written verification, satisfactory, in the discretion of the Board or any authorized officer of the Company, to demonstrate the accuracy of any information submitted by the Stockholder pursuant to this Section 12, and (ii) a written update of any information submitted by the Stockholder pursuant to this Section 12 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 12.
(2) Only such
personsindividuals who are nominated in accordance with the procedures set forth in this
Section 1512 shall be eligible to servefor 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 the procedures set forth in this
Section 15.12. The presiding officerchairman 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 in accordance with the procedures set forth in this Section 15 and, if any proposed nomination or business is
not in compliance with this Section 15, to declare that such defective nomination or business proposal be disregarded.or proposed, as the case may be, in accordance with this
Section 12.
(23) For purposes of
this Section 15, “public“Public announcement” shall mean
disclosure in a press release prepared by or on behalf of the Company and reported by the Dow Jones News Service, Associated Press or comparable, Business
Wire, PR Newswire or widely circulated news service or in a document publicly filed by the Company with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(34) Notwithstanding the foregoing provisions of this
Section 15,12, a Stockholder shall also comply with all applicable requirements of state law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 15.12. Nothing in this
Section 1512 shall be deemed to affect any rightsright of Stockholders to request
inclusion of proposals in any ofa proposal in, nor the right of the Company to omit a proposal from, the Company’s proxy
statementsstatement pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act.
(5) Nothing in this Section 12 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 under Section 14(a) of the Exchange Act
SECTION 13. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of the Articles or these Bylaws, Title 3, Subtitle 7 of the MGCL (or any successor statute) shall not apply to any acquisition by any person of shares of stock of the Company. This section may be repealed or amended, in whole or in part, at any time, whether before or after an acquisition of control shares, and, upon such repeal or amendment, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
SECTION 14. BUSINESS COMBINATIONS. By virtue of resolutions adopted by the Board prior to or at the time of adoption of these Bylaws, any business combination (as defined in Section 3-601(e) of the MGCL) between the Company and any of its present or future Stockholders, or any affiliates or associates of the Company or any present or future Stockholder of the Company, or any other person or entity or group of persons or entities, is exempt from the provisions of Subtitle 6 of Title 3 of the MGCL entitled “Special
11
Voting Requirements,” including, but not limited to, the provisions of Section 3-602 of such Subtitle. The Board may not revoke, alter or amend such resolution or otherwise adopt any resolution that is inconsistent with a prior resolution of the Board that exempts any business combination (as defined in Section 3-601(e) of the MGCL) between the Company and any other person, whether identified specifically, generally or by type from the provisions of Subtitle 6 of Title 3 of the MGCL without the approval of Stockholders entitled to cast a majority of all votes cast by the holders of the issued and outstanding shares of common stock of the Company
SECTION 15. VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the chairman of the meeting shall order or any Stockholder shall demand that voting be by ballot.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Company shall be managed by or under the direction of the Board. Unless otherwise provided by the Articles, Directors
need not be Stockholders. A Director shall be an individual at least 21 years of age who is not under legal disability.its Board.
SECTION 2. OUTSIDE ACTIVITIES. A Director who is not also an officer of the Company shall have no responsibility to devote his or her full time to the affairs of the Company. Any Director or officer of the Company, 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 relating to the Company.
SECTION 3. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors of the Company shall
initially be five (5). At any regular meeting or at any special meeting called for that purpose, by the affirmative vote of at least a majority of the Directors (including a
majority of the Independent Directors), thenine. A majority of the entire Board may increase or decrease the
number of Directors; provided, however, that the number thereof shall
notnever be fewerless than three
(3)the minimum number required by the MGCL, nor more than eleven (11)15; and
provided, further, that the tenure of office of a Director shall not be affected by any decrease in the number of Directors.
SECTION 3. RESIGNATIONS AND REMOVAL. Any Director may resign by written notice to the Board, effective upon execution and
delivery to the Company of such written notice or upon any future date specified in the notice. A Director may be removed at any time, with or without cause, at an annual or special meeting of the Stockholders, by the affirmative vote of the holders
of not less than a majority of Shares then outstanding and entitled to vote generally in the election of Directors.
SECTION 4. MEETINGS. Meetings of the Board may be called by or at the request of the chairman, the president, a majority of the
Directors or a majority of the Independent Directors. The person or persons authorized to call meetings of the Board may fix any place as the place for holding any meeting of the Board called by them. Meetings of the Board may be held within or
outside the State of Maryland.ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board may be held immediately after and at the same place as the annual meeting of Stockholders,
with no notice other than this Bylaw provision 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. The Board may provide, by resolution, the time and place, either within or without the State of Maryland, for the holding of regular meetings of the Board without other notice than such resolution.
SECTION 5. BUSINESS OF MEETINGS. Except as otherwise expressly provided in these Bylaws, any and all business may be transacted
at any meeting of the Board.
SECTION 5. SPECIAL MEETINGS. Special meetings of the Board 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 may fix any place, either within or outside the State of Maryland, as the place for holding any special meeting of the Board called by them. The Board may provide, by resolution, the time and place for the holding of special meetings of the Board without other notice than such resolution.
12
SECTION 6. NOTICE OF MEETINGS. Notice of any meeting shall be given to each Director
at his principal place of business: (i) at least two (2) days previous thereto if delivered by messenger, overnight courier or facsimile; or (ii) at least five (5) days previous thereto if mailed.
SECTION 6. NOTICE OF MEETINGS. Notice of any special meeting of the Board shall be delivered personally or by telephone, facsimile transmission, electronic mail, United States mail, with postage thereon prepaid, or courier to each Director at his or her business or residence address. Notice by personal delivery, by telephone, facsimile transmission or electronic mail shall be given at least 24 hours prior to the meeting. Notice by United States mail shall be given at least five days prior to the meeting and shall be deemed to be given when deposited in the United States mail properly addressed, with postage thereon prepaid. Notice by courier shall be given at least two days prior to the meeting and shall be deemed to be given when deposited with or delivered to a courier properly addressed. Telephone notice shall be deemed to be given when the Director is personally given such notice in a telephone call to which he or she is a party. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Company by the Director and receipt of a completed answer back indicating receipt. Electronic mail notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Company by the Director. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the Board need be stated in the notice, unless specifically required by statute or these Bylaws.
SECTION 7. ATTENDANCE BY TELEPHONE. Directors may participate in meetings of the Board by means of conference telephone or
similar communications equipment by means of which all Directors participating in the meeting can hear and speak to one another, and such participation shall constitute presence in person at the meeting.
SECTION 8. QUORUM AND MANNER OF ACTING; ADJOURNMENT.
Subject to the following sentence, aA majority of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board and the act of
a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board. If; provided, however, that if less than a majority of
such Directors are present at saidsuch 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 Articles or these Bylaws, the vote of a majority of Independentor other percentage of a
particular group of Directors is required for action, a quorum must also include a majority or, if greater, the other percentage of such
group.
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 8. 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, unless the concurrence of a lesser or greater proportion is required for such action by applicable law, the Articles 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, unless the concurrence of a greater proportion is required for such action by applicable law, the Articles or these Bylaws.
SECTION 9. CHAIRMAN OF THE BOARD OF DIRECTORS. The Board shall designate a Chairman of the Board. The Chairman of the Board shall be a Director who shall not, solely by reason of these Bylaws, be an officer of the Company. The Board may designate the Chairman of the Board as an executive or non-executive Chairman. The Chairman of the Board shall preside, when present, at all meetings of the Board. The Chairman of the Board shall have such other powers and shall perform such other duties as may be assigned to him or her by these Bylaws or the Board.
SECTION 10. CONDUCT OF MEETING. All meetings of the Board shall be called to order and presided over by the Chairman of the Board, or, in the absence of the Chairman, the Vice Chairman of the
13
Board, if any, or in the absence of both the Chairman and Vice Chairman of the Board, by a member of the Board selected by the members present. An individual designated by the presiding director of the meeting or, in the absence of such appointment or appointed individual, the Secretary or, in his or her absence, an Assistant Secretary shall act as Secretary at all meetings of the Board. 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 11.
ACTION WITHOUT A MEETING. Any action which couldrequired or permitted to be taken at
aany meeting of the Board may be taken without a meeting, if all of the
Directorsa consent to the action in writing and the writing or writings arein writing or by
electronic transmission to such action is given by each Director and is filed with the minutes of proceedings of the Board.
SECTION 10.12. RESIGNATIONS. Any Director may resign from
the Board or any committee thereof at any time by delivering his or her resignation to the Board, the Chairman of the Board or the Secretary. Such resignation shall take effect at the time specified therein, which may be on or after the time of the
resignation, or if no time be specified, at the time of the receipt of such resignation by the Board, the Chairman of the Board or the Secretary. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in
the resignation.
SECTION 13. FILLING OF VACANCIES. If for
any reason any or all of the Directors cease to be Directors, such event shall not terminate the Company or affect these Bylaws or the powers of the remaining Directors
hereunder (even if fewer than three Directors remain). If a vacancy in the Board of Directors shall occur (whether arising through death, resignation or through. Except as
may be provided to the Board in setting the terms of any class or series of stock, any vacancy on the Board for any cause, including an increase in the number of Directors),
the vacancy shall, may be only filled by the affirmative vote of a majority of the remaining
Directors, at any regular meeting or any special meeting called for that purpose, even though less than a quorum of the Board of Directors may exist. Any vacancy in the number of Directors created as a result of the removal of a Director by
the Stockholders shall be filled by a majority vote of the Stockholders. Any Director may resign at any time and may be removed with or without cause at an annual or special meeting of Stockholders by the affirmative vote of the holders of not less
than a majority of the outstanding Shares entitled to vote generally in the election of Directors. Any individual so elected as Director shall hold office for the unexpired term of the Director he is
replacingeven if such majority is less than a quorum. Any Director elected to fill a vacancy shall serve for the remainder of the full term of the Directorship in which the vacancy
occurred until his or her successor is duly elected and qualifies.
SECTION 11. COMPENSATION OF DIRECTORS. The
Board shall have the authority to fix the compensation of Directors, unless otherwise provided in the Articles.14. COMPENSATION OF DIRECTORS. Directors may receive compensation 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 or of any committee thereof and for their expenses, if any;
and nothing herein contained shall be construed to preclude any Directors from serving the Company in any other capacity and receiving compensation therefor.
SECTION 12. PRESIDING OFFICER. The presiding officer at any meeting of the Board shall be the chairman, or in his absence, any other Director elected chairman by vote of a majority of the
Directors present at the meeting.
SECTION 13. COMMITTEE. The Board will designate an Audit Committee
consisting of at least three Independent Directors. The Audit Committee shall: (i) engage the independent public accountants; (ii) review the plans and results of the audit engagement with the independent public accountants;
(iii) approve professional services provided by, and the independence of, the independent public accountants; (iv) consider the range of audit and non-audit fees; (v) consult with the independent public accountants regarding the
adequacy of the Company’s internal accounting controls; and (vi) such other duties and responsibilities as the law requires.
14
The Board may establish an Executive Committee consisting of three Directors,
including two Independent Directors. The Executive Committee, to the extent provided by the Board and otherwise permitted by law, shall have and exercise all of the authority of the Board in the management of the Company, such Executive Committee to
keep minutes of its proceedings and report the same to the Board when required.
The Board may establish an
Executive Compensation Committee consisting of three Directors, including two Independent Directors, to establish compensation policies and programs for the Company’s executive officers. The Executive
Compensation Committee will exercise all powers of the Board in connection with establishing and implementing compensation matters, including incentive compensation and benefit plans.
The Board may establish such other committees as the Directors deem appropriate and appoint the members thereof. Service on such
committees shall be at the pleasure of the Board, which may by a majority vote taken in accordance with these Bylaws, increase or decrease committee membership, remove a committee member and appoint members to fill
vacancies in a committee. Any committee of the Board shall make such reports as required by the Board available to the entire Board for review and any necessary action by the Board.
Nothing in this Section 13 shall be construed as precluding the Board or officers from appointing such other committees as
they deem necessary and proper, to aid in the management and operation of the Company’s business.
SECTION 14.15. RELIANCE. Each Director, officer, employee and agent of the Company shall, in the
performance of his or her duties with respect to the Company, 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 Company, upon an opinion of counsel or upon reports made to the Company by any of its officers or employees or by the Advisor, accountants, appraisers or other experts or consultants selected
by the Board or officers of the Company, regardless of whether such counsel or expert may also be a Directorentitled 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 Company whom the Director 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 reasonably believes to be within the
person’s professional or expert competence, or by a committee of the Board 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 16. RATIFICATION. The Board or the Stockholders may ratify and make binding on the Company any action or inaction by the Company or its officers to the extent that the Board 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 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 Company 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 17. EMERGENCY PROVISIONS. Notwithstanding any other provision in the Articles or these Bylaws, this Section 17 shall apply during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the Board under Article III of these Bylaws cannot readily be obtained (an “Emergency”). During any Emergency, unless otherwise provided by the Board, (a) a meeting of the Board or a committee thereof may be called by any Director or officer by any means feasible under the circumstances; (b) notice of any meeting of the Board 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 (c) the number of Directors necessary to constitute a quorum shall be one-third of the entire Board.
15
ARTICLE IV
COMMITTEES
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS. The Board 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.
SECTION 2. POWERS. The Board may delegate to committees appointed under Section 1 of this Article IV any of the powers of the Board, except as prohibited by law, the Articles, or these Bylaws.
SECTION 3. MEETINGS. Notice of committee meetings shall be given in the same manner as notice for special meetings of the Board. 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 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 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. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of a committee of the Board 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 such consent is filed with the minutes of proceedings of such committee.
SECTION 6. VACANCIES; REMOVAL; DISSOLUTION. Subject to the provisions hereof, the Board 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. EXECUTIVE AND OTHER OFFICERS. The Company shall have a
presidentPresident, a secretarySecretary and a
treasurerTreasurer. The Company may also have a chairmanan executive Chairman of the
Board and one or more vice presidents,Vice Presidents (one or more of whom may be designated as an Executive Vice President or a Senior Vice President or by any other
designation as the Board may deem appropriate), assistant officers, and subordinate officers as designated by the Board of Directors. A person may hold more than one office in the Company except that no person may serve concurrently as both
presidentPresident and a vice presidentVice President of the Company. The
chairmanexecutive Chairman of the Board, if any, shall be a Director, and the other officers may be
Directors. The Board of Directors may designate who shall serve as chief executive officer, and may designate a chief operating officer, a chief financial officer, a chief accounting officer, a chief administrative officer, a chief
investment officer, a president of property management, a general counselChief Executive Officer, and may designate a Chief Operating Officer, a Chief Financial Officer, a Chief
Accounting Officer, a Chief Administrative Officer, a Chief Investment Officer, a President of Property Management, a General Counsel or other officers with functional titles and specify the duties of such officers in addition to those set forth
herein. In the absence of any designation, the chairman of the Board, if there be one, shall serve as chief executive officer, and the president shall serve as chief operating officer. In the absence of the chairman of the Board, or if there
be none, the president shall be the chief executive officer. A person may hold more than one functional title in the Company. The chief executive officer shall have general supervision of the
16
business and affairs of the Company, and shall perform such duties as are customarily performed by the chief executive officer of a corporation and shall perform such other duties and
have such other powers as are from time to time assigned to him or her by the Board; he or she may execute, in the name of the Company, all authorized deeds, mortgages, bonds, contracts, or other instruments, except in cases in which the signing and
execution thereof shall have been expressly delegated to some other officer or agent of the Company.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Company shall be elected by the Board at their first meeting and
thereafter at any subsequent meeting and shall hold their offices for such term as determined by the Boardthe first meeting of the Board held after each annual meeting of
Stockholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until his successor is duly elected and qualified, or until his
death or disability, or until he resigns or is removed from his duties in the manner hereinafter provided. Election of an officer or agent shall not of itself create contract rights between
the Company and such officer or agent. In the event of the absence or disability of any officer, the Board may designate another officer to act temporarily in place of such absent or disabled officer.
SECTION 3. REMOVAL AND RESIGNATION. Any officer may be removed, either with or without cause, by a majority of the Directors then
in office, at any meeting of the Boardthe Board if, in its judgment, the best interests of the Company 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 Company may resign at any time by
giving written notice to the Companydelivering his or her resignation to the Board, the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein. 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 Company.
SECTION 4. VACANCIES. A vacancy in any office because of death, resignation or removal or any other cause may be filled by the Board.
SECTION 5. CHAIRMAN. The chairman shall preside at all meetings of the Board, and at all
Stockholders’ meetings, whether annual or special, at which he or she is present and shall exercise such other powers and perform such other duties as the Board may from time to time assign to him or her or as
may be prescribed by these Bylaws.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Board may designate a Chief Executive Officer. The Chief Executive Officer shall have general supervision of the business and affairs of the Company, and shall perform such duties as are customarily performed by the chief executive officer of a corporation and shall perform such other duties and have such other powers as are from time to time assigned to him or her by the Board; he or she may execute, in the name of the Company, all authorized deeds, mortgages, bonds, contracts, or other instruments, except in cases in which the signing and execution thereof shall have been expressly delegated exclusively to other officer(s) or agent(s) of the Company.
SECTION 6. PRESIDENT. Subject to the direction and control of the Board, the
presidentin the absence of a Chief Executive Officer, the President shall be in charge of the business of the Company; the
president and shall see that the resolutions and directions of the Board are carried into effect, except in those instances in which that responsibility is specifically
assigned to some other person by the Board; and in general, the presidentPresident shall discharge all duties incident to the office of
presidentPresident and such other duties as may be prescribed by the Board from time to time. Except in those instances in which the authority to execute is expressly
delegated exclusively to anotherother
officer(s) or agent(s) of the Company, or a different mode of execution is expressly prescribed by the Board or these
Bylaws, the presidentPresident may execute for the Company, certificates for its Shares, if any, and any
contracts, deeds, mortgages, bonds or other instruments which the Board have authorized to be executed, and the presidentPresident may accomplish such execution either
under or without the seal of the Company, or either individually or with the secretarySecretary, any assistant
secretaryAssistant Secretary or any other officer thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law. The
presidentPresident may vote all securities which the Company is entitled to vote, except as and to the extent such authority shall be vested in a different officer or
agent of the Company by the Board.
17
SECTION 7. VICE PRESIDENT. The vice
presidentVice President (or in the event there be more than one vice presidentVice President,
each of the vice presidentsVice Presidents), if one shall be elected, shall assist the
presidentPresident in the discharge of the presidentPresident’s duties, as the
presidentPresident may direct, and shall perform such other duties as from time to time may be assigned to him or her by the
presidentPresident or by the Board. In the absence of the presidentPresident or in the
event of the presidentPresident’s inability or refusal to act, the vice presidentVice
President (or in the event there be more than one vice presidentVice President, the vice
presidentsVice Presidents in the order designated by the Board, or in the absence of any designation, then in the order of seniority of tenure as vice
presidentVice President) shall perform the duties of the presidentPresident, and when so
acting, shall have the powers of and be subject to all the restrictions upon the presidentPresident. Except in those instances in which the authority to execute is
expressly delegated exclusively to anotherother
officer(s) or agent(s) of the Company, or a different mode of execution is expressly prescribed by the Board or these
Bylaws, the vice presidentVice President (or each of them if there are more than one) may execute for the Company, certificates for its Shares and any contracts, deeds,
mortgages, bonds or other instruments which the Board have authorized to be executed, and he or she may accomplish such execution either under or without the seal of the Company, and either individually or with the
secretarySecretary, any assistant secretaryAssistant Secretary or any other officer
thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law.
SECTION 8.
TREASURER. The treasurerTreasurer shall: (i) have charge of and be responsible for the maintenance of the adequate books and records for the Company;
(ii) have charge and custody of all funds and securities of the Company, and be responsible therefor and for the receipt and disbursement thereof; and (iii) perform all the duties incident to the office of
treasurerTreasurer and such other duties as from time to time may be assigned to him or her by the president or by the Board. If required by the Board, the
treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board may determine.President or by the Board.
SECTION 9. SECRETARY. The secretarySecretary
shall: (i) record the minutes of the Stockholders’ and of the Board of Directors’ meetings in one or more books provided for that purpose; (ii) see that all notices are duly given in accordance with the provisions of these Bylaws
or as required by law; (iii) be custodian of the corporate books and records and of the seal of the Company; (iv) keep a register of the post-office address of each Stockholder which shall be furnished to the
secretarySecretary by such Stockholder; (v) sign with the chairman or the president or a vice president or any other officer thereunto authorized by the
Boardexcept in those instances in which the authority to execute is expressly delegated exclusively to other officer(s) or agent(s) of the Company, or a different mode of execution
is expressly prescribed by the Board or these Bylaws, the Secretary may execute for the Company, certificates, if any, for
theits Shares, and any contracts, deeds, mortgages, bonds or other instruments which the Board have authorized to be executed,
and he or she may accomplish such execution either under or without the seal of the Company, and either individually or with any officer thereunto authorized by the Board, according to
the requirements of the form of the instrument or applicable law, except when a different mode of execution is expressly prescribed by the Board or these Bylaws; (vi) have general charge of the stock transfer
books of the Company; and (vii) perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him or her by the
presidentPresident or by the Board.
SECTION
10. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The assistant treasurers and assistant secretariesAssistant Treasurers and Assistant Secretaries shall perform such
duties as shall be assigned to them by the Board. When the secretary is unavailable, any assistant secretary may sign with the president, or a vice president, or any other officer thereunto authorized by the
Board,Except in those instances in which the authority to execute is expressly delegated exclusively to other officer(s) or agent(s) of the Company, or a different mode of
execution is expressly prescribed by the Board or these Bylaws, each of the Assistant Secretaries may execute for the Company, certificates, if any, for its Shares and any contracts, deeds, mortgages, bonds or other instruments
which the Board have authorized to be executed, and he or she may accomplish such execution either under or without the seal of the Company, and either individually or with any officer
thereunto authorized by the Board, according to the requirements of the form of the instrument or applicable law, except when a different mode of execution is expressly prescribed by the Board or these
Bylaws. The assistant treasurers shall if required by the Board, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board shall
determine.
18
SECTION 11. SALARIES. The salaries of the officers shall be fixed from time to time
by the Board (or an appropriately designated committee of the Board) and no officer shall be prevented from receiving such salary by reason of the fact that he is also a Director of the Company.
ARTICLE VVI
CONTRACTS, LOANS, CHECKS AND,
DEPOSITS AND BANK ACCOUNTS
SECTION 1. CONTRACTS. The Board may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Company and such authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the Company and no evidences of indebtedness shall be issued in its
name, unless authorized by a resolution of the Board. Such authority may be general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Company shall be signed by such officer or officers or agent or agents of the Company and in such manner as shall from time to time be determined by resolution of the Board.
SECTION 4. SECTION 3. DEPOSITS. All funds of the Company
not otherwise employed shall be deposited or invested from time to time to the credit of the Company in such banks, trust companies or other depositories as the Board may
designateas the Board, the Chief Executive Officer, the President, the Chief Financial Officer, or any other officer designated by the Board may determine.
SECTION 4. BANK ACCOUNTS. Each officer of the Company that holds office of a rank of Vice President or above is authorized to take any and all actions and sign any and all instruments to establish corporate banking accounts at any commercial banking institution on behalf of the Company.
ARTICLE VIVII
SHARES OF EQUITY STOCK
SECTION 1. RECORDS AND CERTIFICATES. Records shall be kept by or on behalf of the Company, which shall contain the names and addresses of Stockholders, the number of Shares held by them,
respectively, and the number of certificates, if any, representing the Shares, and in which there shall be recorded all transfers of Shares. Every Stockholder shall be entitled to a certificate signed by the chairman, or the president or a vice
president, and by the secretary or an assistant secretary of the Company, certifying the class and number of Shares owned by him in the Company, provided that any and all signatures on a certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same
effect as if he or it were such officer, transfer agent or registrar at the date of issue. Each certificate representing Shares which are restricted as to their transferability or voting powers, which are preferred or limited as to their dividends
or as to their allocable portion of the assets of the Company upon liquidation or which are redeemable at the option of the Company, shall have a statement of such restriction, limitation, preference or redemption provision, or a summary thereof,
plainly stated on the certificate. In lieu of such statement or summary, the Company may set forth upon the face or back of the certificate a statement that the Company will furnish to any Stockholder, upon request and without charge, a full
statement of such information.
SECTION 1. RECORDS AND CERTIFICATES. Except as may be otherwise provided by the Board, Stockholders of the Company are not entitled to certificates representing the shares of stock held by them. In the event that the Company issues shares of stock represented by certificates, such certificates shall be in such form as prescribed by the Board or a duly authorized officer, shall contain the statements and information required by the MGCL and shall be signed by the officers of the Company in the manner permitted by the MGCL. In the event that the Company issues shares of stock without certificates, to the extent then required by the MGCL, the Company 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.
19
SECTION 2. TRANSFER AGENTS AND REGISTRARS. The Company may serve as the transfer
agent and registrar of the Shares, or the Board may, in its discretion, appoint one or more responsible banks or trust companies as the Board may deem advisable, from time to time, to act as transfer agents and registrars of Shares. No certificate
for Shares shall be valid until countersigned by the transfer agent and registered by the registrar.
SECTION
3. STOCKHOLDERS’ ADDRESSES. Every Stockholder or transferee shall furnish the secretary or a transfer agent with the address to which notice of meetings and all other notices may be served upon
or mailed to such Stockholder or transferee, and in default thereof, such Stockholder or transferee shall not be entitled to service or mailing of any such notice.
SECTION 4. LOST CERTIFICATES. In the event a certificate for Shares is lost, stolen or destroyed, the Board, in its discretion,
or any transfer agent duly authorized by the Board in its discretion, may authorize the issuance of a substitute certificate in place of the certificate so lost, stolen or destroyed. The Company may require the owner of
theLOST CERTIFICATES. Any officer of the Company may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the
Company 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 of stock have ceased to be certificated, no new certificate shall be issued unless
requested in writing by such Stockholder and the Board has determined that such certificates may be issued. Unless otherwise determined by an officer of the Company, the owner of such lost,
destroyed, stolen or destroyedmutilated
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 Company a bond sufficient to indemnify the
Companyin such sums as it may direct as indemnity against any claim that may be made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate or uncertified Sharesthe Company.
SECTION 5.3. DISTRIBUTIONS TO STOCKHOLDERS. To the extent permitted by the MGCL and subject to any restrictions contained
in the Articles, the Directors may declare and pay dividends upon the Shares in the manner and upon the terms and conditions provided by the MGCL and the Articles.
SECTION 6.4. RECORD DATES. The Board 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 is to be held or taken.
In lieu of fixing a record date, the Board 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 theWhen a 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 entitlednotice of and
to vote at any meeting of Stockholders has been made as provided in this Section 6,3, such
determinationrecord date shall continue to apply to any adjournment thereof, except where the
determination has been made through the closing of the transfer books and the stated period of closing has expiredif 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.
20
SECTION 7. TRANSFERS OF SHARES. Shares of the Company may be transferred by delivery
of the certificates therefor, accompanied either by an assignment in writing on the back of the certificates, or by written power of attorney to sell, assign and transfer the same, signed by the record holder thereof; but no transfer shall affect
the right of the Company to pay any distribution upon the Shares to the holder of record thereof, or5. TRANSFERS OF SHARES. All transfers of shares of stock shall be made on the
books of the Company, by the holder of the shares of stock, in person or by his or her attorney, in such manner as the Board or any officer of the Company may prescribe and, if such shares of stock are certificated, upon surrender of certificates
duly endorsed. The issuance of a new certificate upon the transfer of certificated shares of stock is subject to the determination of the Board that such shares of stock shall no longer to be represented by certificates. Upon the transfer of
uncertificated shares of stock, to the extent then required by the MGCL, the Company shall provide to the record holders of such shares of stock a written statement of the information required by the MGCL to be included on stock certificates.
The Company shall be entitled to treat the holder of record
of any share of stock as the holder in fact thereof for all purposes, and no transfer shall be valid, except between the parties thereto, until such transfer shall have been
made upon the books of the Companyand, 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 Articles and all of the terms and conditions contained therein.
SECTION 8. REPURCHASE OF SHARES ON OPEN MARKET. The Company may
purchase its Shares on the open market and invest its assets in its own Shares, provided that in each case the consent of the Board shall have been obtained.
SECTION 6. STOCK LEDGER. The Company 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 7. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board may authorize the Company to issue fractional stock or scrip, all on such terms and under such conditions as they may determine. Notwithstanding any other provision of the Articles or these Bylaws, the Board may issue units consisting of different securities of the Company. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Company, except that the Board may provide that for a specified period securities of the Company issued in such unit may be transferred on the books of the Company only in such unit.
ARTICLE VIIVIII
INDEMNIFICATION AND INSURANCE
Capitalized terms used in this Article VII and not otherwise defined shall have the meanings set forth in the Articles.
SECTION 1. INDEMNIFICATION.
(a) Subject to paragraphs (b), (c) and (d) of this Section 1, the Company shall, to the fullest
(a) The Company shall, to the maximum extent permitted by Maryland statutory or decisional law, as amended or interpreted and,
without limiting the generality of the foregoing, in accordance with Section 2-418 of the MGCL, indemnify and pay, advance or reimburse reasonable expenses to any Director, officer, employee and agent of the Company and the Advisor and its
Affiliates (each an “Indemnified Party”).
21
(b) As long as the Company qualifies as a REIT, it shall not indemnify nor pay,
advance or reimburse expenses to an Indemnified Party unless: (i) the Indemnified Party has determined, in good faith, that the course of conduct which caused the loss or liability was in the best interest of the Company; (ii) the
indemnified Party was acting on behalf of or performing services on the part of the Company; (iii) such liability or loss was not the result of negligence or misconduct on the part of the Indemnified Party except that in the event the
Indemnified Party is or was an Independent Director, such liability or loss shall not have been the result of gross negligence or willful misconduct; and (iv) such indemnification or agreement to be held harmless is recoverable only out of the
Net Assets of the Company and not from the Stockholders.law as in effect from time to time, subject to paragraphs (c) and (d) of this Section 1,
indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses (including legal fees) in advance of final disposition of a proceeding to, (i) any individual who
is a present or former Director of the Company 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 (ii) any individual who, while a Director of the Company and at the request of
the Company, serves or has served as a Director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate investment trust, partnership, limited liability company, 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 Articles and these Bylaws shall vest
immediately upon election of a Director.
(b) In addition to and not in limitation of the provisions of Section 1(a) of this Article VIII, the Company may, with the approval of the Board, provide such indemnification and advancement of expenses to an individual who served a predecessor of the Company in any of the capacities described in (a)(i) or (a)(ii) above and to any officer, employee or agent of the Company or a predecessor of the Company. For purposes of this Article VIII, each individual entitled to indemnification and advancement of expenses as set forth in Sections 1(a)(i) or (a)(ii) of this Article VIII, or, as set forth in this Section 1(b), each individual the Company may, with the approval of the Board, provide with indemnification and advancement of expenses, is referred to as an “Indemnitee.”
(c) As long as the Company qualifies as a REIT and notwithstanding anything to the contrary in Section 1(b) of this Article
VII, the Company shall not indemnify a Director, officer, employee or agent of the Company or the Advisor or its Affiliates for losses, liabilities or expenses arising from or out of an alleged violation of federal or state securities laws by such
party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnified Party; (ii) such claims
have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnified Party; or (iii) a court of competent jurisdiction approves a settlement of the claims and finds that indemnification of the
settlement and related costs should be made and the court considering the request has been advised of the position of the Securities and Exchange Commission and the published opinions of any state securities regulatory authority in which securities
of the Company were offered or sold as to indemnification for violations of securities laws.
(d) The Company
may advance amounts to an Indemnified Party for legal and other expenses and costs incurred as a result of any legal action for which indemnification is being sought only in accordance with Section 2-418 of the MGCL, and, as long as the Company
qualifies as a REIT, only if all of the following conditions are satisfied: (i) the legal action relates to acts or omissions with respect to the performance of duties or services by the Indemnified Party for or on behalf of the Company;
(ii) the legal action is initiated by a third party who is not a Stockholder or the legal action is initiated by a Stockholder acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement;
and (iii) the Indemnified Party receiving such advances undertakes in writing to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases in which such party is found not to be entitled to
indemnification.
(c) Notwithstanding any other provision of this Article VIII, Section 1(a) shall not entitle an Indemnitee to:
(i) indemnification hereunder, if such proceeding was one by or in the right of the Company and the Indemnitee is adjudged to be liable to the Company;
22
(ii) indemnification hereunder, if such proceeding charges improper personal benefit to the Indemnitee, whether or not involving action in the Indemnitee’s official capacity, in which the Indemnitee is adjudged to be liable on the basis that personal benefit was improperly received; or
(iii) indemnification or advancement of expenses, if such proceeding was brought by the Indemnitee unless: (a) the proceeding was brought to enforce rights under the Articles or the Bylaws, and then only to the extent in accordance with and as authorized by the Articles or the Bylaws, or (b) a resolution of the Stockholders entitled to vote generally in the election of Directors or of the Board or an agreement approved by the Board to which the Company is a party expressly provide otherwise.
(d) Notwithstanding any other provision of this Article VIII, Section 1(a) shall not entitle an Indemnitee to indemnification for any judgments, penalties, fines and amounts paid in settlement in a proceeding described in Section 1(a), in whole or in part, for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, the Company shall pay expenses, as described Section 1(a), incurred by the Indemnitee in connection with any such proceeding.
(e) Neither the amendment nor repeal of this Article
VIIVIII, nor the adoption or amendment of any other provision of the Bylaws or the Articles inconsistent with this Article VII, shall apply to or affect in any
respect the applicability of the preceding paragraphsVIII, shall eliminate or reduce the protection afforded by this Article VIII with respect to any act or failure to act
which occurred prior to such amendment, repeal or adoption.
SECTION 2. INDEMNIFICATION INSURANCE. The Company shall have the
power to purchase and maintain insurance on behalf of an indemnified party against any liability asserted which was incurred in any such capacity with the Company, or arising out of such status; provided, however, that the Company shall not
incur the costs of any liability insurance which insures any person against liability for which he, she or it could not be indemnified under the provisions of this Article VII. Nothing contained herein shall constitute a waiver by any Indemnified
Party of any right which he, she or it may have against any party under federal or state securities lawsany Indemnitee against any liability, whether or not the Company would have
the power to indemnify him or her against such liability.
SECTION 3. NON-EXCLUSIVE RIGHT TO INDEMNIFY; HEIRS AND PERSONAL REPRESENTATIVES. The indemnification and payment or reimbursement of expenses provided in these Bylaws shall not be deemed exclusive of or limit in any way the rights to which any person seeking indemnification or reimbursement of expenses may or become entitled under any bylaw, regulation, insurance agreement or otherwise. The rights to indemnification set forth in this Article VIII are in addition to all rights which any Indemnified Person may be entitled as a matter of law, and shall inure to the benefit of the heirs and personal representatives of each Indemnified Person.
SECTION 4. NO LIMITATION. In addition to any indemnification permitted by these Bylaws, the Board shall, in its sole discretion, have the power to grant such indemnification as it deems in the interest of the Company to the full extent permitted by law. This Article VIII shall not limit the Company’s power to indemnify against liabilities not arising from a person’s serving the Company as a Director, officer, employee or agent.
ARTICLE VIIIIX
SEAL
SECTION 1. SEAL. The Board may authorize the adoption of a seal by the Company. The seal shall have inscribed thereon the name of the Company and the year of its organization. The Board may authorize one or more duplicate seals and provide for the custody thereof.
23
SECTION 2. AFFIXING SEAL. Whenever the Company is required to place 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 Company.
ARTICLE IXX
WAIVER OF NOTICE
Whenever any notice of any meeting is required to be given pursuant to the Articles 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, unless specifically required by statute. The attendance of any person at any such 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 XI
AMENDMENTS
Unless otherwise provided in the Articles, these Bylaws may be altered, amended or repealed and new Bylaws, not inconsistent with
the Articles or the laws of the State of Maryland or other applicable law, may be adopted at any properly constituted meeting of the Board by a majority vote of the Directors present at the meeting, except that in the case of a matter which requires
greater than a majority vote of the Directors, any amendment with respect to such matter must be approved by a vote of Directors equal to or greater than the number of votes required under these Bylaws to effectuate the matter in question.
The Board shall have the exclusive power to alter, amend or repeal these Bylaws. This Article XI and Sections 13 and 14 of Article II of these Bylaws may not be altered, amended or repealed except by the affirmative vote of a majority of the votes cast on the matter by the holders of the issued and outstanding shares of common stock of the Company.
24