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BLUEROCK
ENHANCED MULTIFAMILY TRUST, INC.
EXHIBIT
10.16
CORPORATE
GOVERNANCE GUIDELINES
Adopted
as of January 14, 2009
The
Board of Directors (the “Board”) of Bluerock
Enhanced Multifamily Trust, Inc. (the “Company”) has
developed and adopted the following corporate governance guidelines establishing
a common set of expectations to assist the Board and its Committees in
performing their responsibilities. The Board may amend these guidelines and may
adopt such additional guidelines as it believes will improve the Company’s
corporate governance, or improve the operation of the Board or its Committees,
so as to better serve the interests of the stockholders and other constituencies
of the Company.
These
guidelines should be interpreted in the context of all applicable laws and the
Company’s articles of incorporation, as amended (the “Charter”), bylaws
(the “Bylaws”)
and other corporate governance documents, and are intended to serve as a
flexible framework within which the Board may conduct its business and not as a
set of legally binding obligations. The following guidelines are subject to
modification, and the Board may, in the exercise of its discretion, deviate from
these guidelines from time to time as the Board may deem appropriate or as
required by applicable laws and regulations.
BOARD
RESPONSIBILITIES
The
responsibilities of the Board are generally defined by statutory and judicial
law (both Maryland and federal) and the rules and regulations of applicable
administrative agencies (notably the Securities and Exchange Commission and
state securities agencies). In managing the business and affairs of the Company,
the Board shall focus its priorities on the following core
responsibilities:
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Representing
the interests of the Company’s stockholders in maintaining and monitoring
the fulfillment of the Company’s primary investment objectives, as
developed in accordance with the Charter.
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Evaluating
and approving the Company’s strategic direction and initiatives and
monitoring implementation and results.
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Overseeing,
advising and interacting with the Company’s president and other senior
executives and the Company’s advisor, Bluerock Enhanced Multifamily
Advisor, LLC (the “Advisor”), with
respect to key aspects of, and issues affecting, the business, including
strategic planning, investments, borrowings, operating performance and
stockholder returns.
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Supervising
and evaluating the relationship between the Company and the Advisor and
other Affiliates (as defined
below).
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Monitoring
the Company’s operating results and financial condition and the
significant risks to the Company’s business.
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Selecting
and evaluating a well-qualified president of high integrity and, as
appropriate, other members of the senior executive
team.
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Selecting
a well-qualified Chairman of the Board of high
integrity.
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Overseeing
the Company’s integrity and ethics, compliance with laws, financial
reporting and public disclosures. In furtherance of this responsibility,
the Board has adopted and, acting through its Audit Committee, shall
oversee compliance with a Code of Ethics for the Company and promptly
disclose publicly any changes to or waivers of the Code of Ethics as
required thereby.
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Reviewing
and approving, upon recommendation of the appropriate Committee of the
Board, all matters to be recommended for stockholder
approval.
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Reviewing
and approving all public filings that require approval of the full
Board.
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Regularly
attending Board meetings (meeting materials should be reviewed in
advance).
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Performing
other such responsibilities as described in the
Charter.
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In
fulfilling these core responsibilities, the directors shall not be required to
devote their full time to the affairs of the Company.
SELECTION
OF THE BOARD
Board Membership
Criteria
As
required by Section 7.2 of the Company’s Charter, at least one independent
director of the Company must have at least three years of relevant real estate
experience, and each director must have at least three years of relevant
experience demonstrating the knowledge and experience required to successfully
acquire and manage the type of assets being acquired by the
Company.
Selection of
Directors
The
Board itself should be responsible for selecting its own nominees and
recommending them for election by the stockholders. Pursuant to Section 7.1 of
the Company’s Charter, however, the directors may increase the number of
directors and fill any vacancy as provided in the Company’s Bylaws.
The
Board shall solicit candidate recommendations from its own members and
management of the Advisor. The Board will also consider suggestions made by
stockholders and other interested persons for director nominees who meet the
established director criteria (as set
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forth
above). In order for a stockholder to make a nomination, the stockholder must
satisfy the procedural requirements for such nomination as provided in Section
11 of the Bylaws.
The
Board may engage the services of a search firm to assist in identifying
potential director nominees.
In
evaluating the persons nominated as potential directors, the Board will consider
each candidate without regard to the source of the recommendation and take into
account those factors that the Board determines are relevant.
Orientation and Continuing
Education
New
directors are provided with a complete orientation process, which includes
comprehensive information regarding the Company’s business and operations,
information regarding the industry in which the Company operates and other
background material, meetings with senior management and the Advisor (as
necessary) and visits to Company offices. As a part of the Company’s continuing
education efforts, supplemental information is provided to directors from time
to time.
BOARD
COMPOSITION AND PERFORMANCE
Size of the
Board
The
Charter provides for five members of the Board, which number may be increased or
decreased from time to time pursuant to the Bylaws of the Company but must never
be less than three following the effectiveness of the Company’s registration
statement. At this time, the Board has determined that it is in the best
interests of the Company and its constituencies to have a Board with five
members.
Independent
Directors
A
majority of the members of the Board must be independent directors. A director
will be considered “independent” if he or she is not associated and has not been
associated within the last two years, directly or indirectly, with the Sponsor
(as defined below) or Advisor of the Company.
A
director shall be deemed to be associated with the Sponsor or Advisor if he or
she:
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owns
an interest in the Sponsor, Advisor or any of their Affiliates (as defined
below), other than the Company;
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is
employed by the Sponsor, Advisor or any of their
Affiliates;
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is
an officer or director of the Sponsor, Advisor or any of their Affiliates,
other than the Company;
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performs
services, other than as a director, for the Company;
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is
a director for more than three REITs organized by the Sponsor or advised
by the Advisor; or
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has
any material business or professional relationship with the Sponsor,
Advisor or any of their Affiliates.
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Notwithstanding
the foregoing, and serving as a director of or receiving director fees from or
owning an interest in a REIT or other real estate program organized by the
Sponsor or advised or managed by the Advisor or its Affiliates shall not, by
itself, cause a director to be deemed associated with the Sponsor or the
Advisor.
For
purposes of determining whether or not a business or professional relationship
is material, the gross revenue derived by the director from the Sponsor, Advisor
and their Affiliates (excluding fees for serving as a director of the Company or
other REIT or real estate program organized or advised or managed by the Advisor
or its Affiliates) shall be deemed material per se if it exceeds 5% of the
director’s:
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annual
gross revenue, derived form all sources, during either of the last two
years; or
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net
worth, on a fair market value
basis.
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An
indirect relationship shall include circumstances in which a director’s spouse,
parent, child, sibling, mother- or father-in-law, son- or daughter-in-law or
brother- or sister-in-law is or has been within the last two years associated
with the Sponsor, Advisor or any of their Affiliates or the
Company.
For
purposes of these guidelines, a “Sponsor” means any
person directly or indirectly instrumental in organizing, wholly or in part, the
Company or any person who will control, manage or participate in the management
of the Company, and any Affiliate of such person. Not included is any person
whose only relationship with the Company is as that of an independent property
manager of the Company’s assets and whose only compensation is as such.
“Sponsor” does not include wholly independent third parties such as attorneys,
accountants and underwriters whose only compensation is for professional
services. A person may also be deemed a Sponsor of the Company (as to be
determined by the Board) by:
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taking
the initiative, directly or indirectly, in founding or organizing the
business or enterprise of the Company, either alone or in conjunction with
one or more other persons;
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receiving
a material participation in the Company in connection with the founding or
organizing of the business of the Company, in consideration of services or
property, or both services and property;.
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having
a substantial number of relationships and contacts with the
Company;
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possessing
significant rights to control the Company’s properties;
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receiving
fees for providing services to the Company which are paid on a basis that
is not customary in the industry; or
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providing
goods or services to the Company on a basis which was not negotiated at
arms length with the Company.
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For
purposes of these guidelines, “Affiliate” includes
any of the following:
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any
person directly or indirectly owning, controlling or holding, with power
to vote, 10% or more of the outstanding voting securities of such other
person;
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any
person 10% or more of whose outstanding voting securities are directly or
indirectly “‘ owned, controlled or held, with power to vote, by such other
person;
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any
person directly or indirectly controlling, controlled by or under common
control with such other person;
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any
executive officer, director, trustee or general partner of such other
person; and
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any
legal entity for which such person acts as an executive officer, director,
trustee or general partner.
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Service on Other Boards of
Directors
Prior
to accepting an invitation to serve on another public or private company board
of directors, directors should advise the Chairman of the Audit Committee. The
Board believes that directors should limit the number of other company boards on
which they serve, taking into account potential board attendance, participation
and effectiveness on these boards.
Directors Who Change Their Present
Occupation or Job
Directors
who change the occupation or job they held when initially elected are expected
to notify the Chairman of the Audit Committee.
Term Limits
The
Board has determined not to establish term limits. Although term limits could
help make fresh ideas and viewpoints available to the Board, they also could
result in the loss of the valuable contribution of directors who have been able
to develop, over a period of time, increasing insight into the Company and its
operations.
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Board
Compensation
Independent
directors shall receive reasonable compensation for their services to be
determined from time to time by the Board. Committee Chairmen may receive such
additional reasonable compensation for serving in that role as may be determined
from time to time. Directors who are not independent receive no additional pay
for serving as directors.
Board and Committee Access to
Outside Advisors
The
Board, each of its Committees and the independent directors collectively shall
have the power to hire independent legal, financial or other advisors, as they
may deem necessary, without consulting or obtaining the approval of any officer
of the Company in advance.
BOARD
RELATIONSHIP TO SENIOR MANAGEMENT AND ADVISOR
Board Access to Senior Management
and Advisor
Board
members shall have complete access to the Company’s management and to the
Company’s Advisor. Board members should use judgment to be sure that any
contacts are not distracting to the business operation of the
Company.
Furthermore,
the Board encourages senior management, from time to time, to bring managers
and/or advisors into Board meetings who: (a) can provide additional insight into
the items being discussed because of personal involvement in these areas, and/or
(b) represent managers with future potential that the senior management believes
should be given exposure to the Board.
MEETING
PROCEDURES
Frequency and Length of Board
Meetings
The
Chairman of the Board or, in the absence of the Chairman, the President of the
Company (if applicable) or the Secretary of the Company (if there is no separate
President), in consultation with the other members of the Board, shall determine
the timing and length of the meetings of the Board. The Board shall meet as
frequently as needed for directors to discharge properly their responsibilities.
In addition to regularly scheduled meetings, unscheduled Board meetings may be
called upon appropriate notice at any time to address specific needs of the
Company.
Selection of Agenda Items for Board
Meetings
The
Chairman of the Board will establish the agenda for each Board meeting. Each
Board member is free to suggest the inclusion of item(s) on the agenda. Each
director is free to raise at any Board meeting subjects that are not on the
agenda for that meeting.
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Board Materials Distributed in
Advance
Each
director is expected to make reasonable efforts to attend all meetings of the
Board and Committees on which the director serves. In advance of each Board or
Committee meeting, a proposed agenda and, to the extent feasible or appropriate,
information and data that is important to an understanding of the business to be
discussed will be distributed. Management, in consultation with the Board, will
make every attempt to see that the material provides sufficient detail to
adequately address the business to be discussed. When appropriate, the
information distributed will include summaries or outlines of presentations to
be given at the meeting. In this way, meeting time may be conserved and
discussion time focused on questions that the Board has about the
material.
BOARD
COMMITTEES
Number, Structure and Independence
of Committees
The
Board shall at all times have an Audit Committee composed solely of independent
directors. For further information on the responsibilities, functions and
composition of the Audit Committee, see the Audit Committee Charter. The Board
may also establish various advisory Committees on which certain members of the
Board sit to assist the Advisor and its affiliates in areas that have a direct
impact on the Company’s operations, such as an Investment Committee, Nominating
and Corporate Governance Committee, Compensation Committee, Asset Management
Committee, Shareholder Relations, Communications and Development Committee and
Finance and Planning Committee. The majority of the members of all of these
Committees must be independent directors.
Frequency and Length of Committee
Meetings
Committee
Chairmen, in consultation with Committee members, will determine the frequency
and length of Committee meetings. Each Committee shall meet at least as
frequently as is required by the terms of such Committee’s charter, as
applicable.
Committee
Agendas
Committee
Chairmen, in consultation with the appropriate members of senior management and
the Committee, will develop the Committee’s meeting agendas.
BOARD
LEADERSHIP
Selection of Chairman and
President
The
Board has the responsibility to fill the leadership positions of the Chairman of
the Board and President as it deems best for the Company at a given point in
time. The Board’s policy on whether or not the role of the Chairman and
President should be separate is to make this determination based on serving the
best interests of the Company and its stockholders at any given
time.
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LEADERSHIP
DEVELOPMENT
Performance
Evaluations
The
independent directors shall evaluate the performance of the President. In
evaluating the President, the independent directors shall take into
consideration the executive’s performance in both qualitative and quantitative
areas, such as leadership and vision; integrity; keeping the Board informed on
matters affecting the Company and its affiliates; performance of the business
(including such measurements as total stockholder return and achievement of
financial objectives and goals); development and implementation of initiatives
to provide long-term economic benefit to the Company, including acquisitions,
accomplishment of strategic objectives and development of
management.
The
independent directors shall also review at least annually the performance of the
other members of the senior management of the Company.
Succession
Planning
At
least once a year, the President of the Company shall meet with the independent
directors to discuss potential successors as President. The independent
directors shall meet in executive session following such presentations to
consider such discussions.
The
President shall also have in place at all times a confidential written procedure
for the timely and efficient transfer of his or her responsibilities in the
event of his or her sudden incapacitation, death or departure, including
recommendations for longer-term succession arrangements.
The
President shall also review periodically with the independent directors the
potential succession arrangements for other key members of the senior management
of the Company.
COMMUNICATIONS
WITH STOCKHOLDERS
The
Company has established the following means for stockholders to communicate
concerns to the Board. If the concern relates to the Company’s financial
statements, accounting practices or internal controls, the concerns should be
submitted in writing to the Chairman of the Audit Committee in care of the
Company’s Secretary at the Company’s headquarters address. If the concern
relates to the Company’s governance practices, business ethics or corporate
conduct, the concern may be submitted in writing to the Company’s Secretary at
the Company’s headquarters address.
The
Company’s “whistleblower” policy prohibits the Company and its affiliates and
their officers, employees and agents from discharging, demoting, suspending,
threatening, harassing or in any other manner discriminating against any
employee for raising a concern. If a stockholder or employee nonetheless prefers
to raise his or her concern in a confidential or
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anonymous
manner; the concern may be directed to the Compliance Officer of the Company at
the Company’s headquarters address.
CONDUCT
AND ETHICS STANDARDS FOR DIRECTORS
Directors
are subject to applicable provisions of a Code of Ethics, Insider Trading Policy
and Whistleblower Policy for the Company. These policies can be found on the
Company’s website.
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