Attached files
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EX-3.01 - EXHIBIT 3.01 - Presidio Property Trust, Inc. | c04736exv3w01.htm |
EX-2.01 - EXHIBIT 2.01 - Presidio Property Trust, Inc. | c04736exv2w01.htm |
EX-3.03 - EXHIBIT 3.03 - Presidio Property Trust, Inc. | c04736exv3w03.htm |
8-K - FORM 8-K - Presidio Property Trust, Inc. | c04736e8vk.htm |
Exhibit 3.02
Appendix C
NetREIT, Inc.
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation shall be located at such
place or places as the Board of Directors may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices at such places as
the Board of Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal office of the
Corporation or at such other place within the United States as shall be stated in the notice of the
meeting.
Section 2. ANNUAL MEETING. Regular meetings of the stockholders for the election of directors
and the transaction of any other business that is proper for stockholder action under the charter
of the Corporation, these bylaws and applicable law and as may properly come before the meeting
shall be held once each calendar year (each such meeting an annual meeting). Annual meetings may
only be called by the Board of Directors. The Board of Directors shall determine the date, time
and place for any annual meeting, which place may be within or without the State of Maryland, or
any adjournments or postponements thereof. Any annual meeting so called may be postponed by the
Board of Directors prior to the meeting with notice to the stockholders entitled to vote at that
meeting.
Section 3. SPECIAL MEETINGS. The chairman of the board, chief executive officer, president or
the Board of Directors may call special meetings of the stockholders. Special meetings of
stockholders may also be called by the secretary of the Corporation upon the written request of
holders of shares constituting at least ten percent (10%) of the votes entitled to be cast at such
meeting. Such request shall state the purpose of such meeting and the matters proposed to be acted
on at such meeting. A special meeting may be called only for the purpose of transacting of such
business that is proper for stockholder action under the charter of the Corporation, these bylaws
and applicable law and as may properly come before such meeting. The secretary shall inform such
requesting stockholders of the reasonably estimated cost of preparing and mailing notice of the
meeting and, upon payment to the Corporation by such stockholders of such costs, the secretary
shall give notice to each stockholder entitled to receive notice of the meeting.
Section 4. NOTICE. Not less than ten (10) nor more than sixty (60) days before each meeting
of stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and
to each stockholder not entitled to vote who is entitled to notice of the meeting, written or
printed notice stating the time and place of the meeting and, in the case of a special meeting or
as otherwise may be required by any applicable statute, the purpose for which the meeting is
called, either by mail or by presenting it to such stockholder personally or by leaving it at his
residence or usual place of business. If mailed, such notice shall be deemed to be given when
deposited in the United States mail addressed to the stockholder at his post office address as it
appears on the records of the Corporation, with postage thereon prepaid. The notice of any meeting
of stockholders may be accompanied by a form of proxy approved by the Board of Directors in favor
of the actions or persons as the Board of Directors may select. Notice of any meeting of
stockholders shall be deemed waived by any stockholder who attends the meeting in person or by
proxy or who before or after the meeting submits a signed waiver of notice that is filed with the
records of the meeting.
Section 5. SCOPE OF NOTICE. Except for action on (i) a contract or transaction in which a
director has a direct or indirect financial interest, (ii) an amendment to the charter, (iii) a
reorganization of the Corporation, (iv) a voluntary dissolution of the Corporation, or (v) a
distribution in dissolution other than in accordance with the rights of outstanding shares of
preferred stock, as to any of which such notice shall state the general nature of any proposed
action, any business of the Corporation may be transacted at an annual meeting of stockholders
without being specifically designated in the notice, except such business as is required by any
statute to be stated in such notice. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the notice.
Section 6. ORGANIZATION. At every meeting of stockholders, the chairman of the board, if
there be one, shall conduct the meeting or, in the case of vacancy in office or absence of the
chairman of the board, one of the following officers present shall conduct the meeting in the order
stated: 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, or a chairman chosen by the
stockholders entitled to cast a majority of the votes which all stockholders present in person or
by proxy are entitled to cast, shall act as chairman, and the secretary, or, in his absence, an
assistant secretary, or in the absence of both the secretary and assistant secretaries, a person
appointed by the chairman shall act as secretary.
Section 7. QUORUM. At any meeting of stockholders, the presence in person or by proxy of
stockholders entitled to cast entitled to cast a majority of the votes entitled to be cast on a
matter (without regard to class) shall constitute a quorum; but this section shall not affect any
requirement under any statute or the charter of the Corporation for the vote necessary for the
adoption of any measure. If, however, such quorum shall not be present at any meeting of the
stockholders, the stockholders entitled to vote at such meeting, present in person or by proxy,
shall have the power to adjourn the meeting from time to time to a date not more than sixty (60)
days after the original record date without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally notified.
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Section 8. VOTING. Directors shall be elected (1) by the affirmative vote of the holders of
a majority of the shares of common stock outstanding and entitled to vote thereon, or (2) in the
case of directors elected by the holders of preferred stock voting separately as a class, by the
affirmative vote of the holders of a majority of the shares of preferred stock outstanding and
entitled to vote thereon, unless otherwise set forth in these bylaws or the Corporations charter.
Each outstanding share of the Corporations common stock entitles the holder thereof to one
vote on all matters presented to the holders of common stock for a vote with the exception that the
holders of common stock have cumulative voting rights with respect to the election of the Board of
Directors as described in the following paragraph of this Section 8. The stockholders vote may be
by voice vote or by ballot; provided, however, that any election for directors must be by ballot if
demanded by any stockholder before the voting has begun. If a quorum is present, the affirmative
vote of the majority of the shares represented at the meeting and entitled to vote on any matter
(other than the election of directors) shall be the act of the stockholders, unless otherwise set
forth in these bylaws or the Corporations charter.
At a stockholders meeting at which directors are to be elected, no stockholder shall be
entitled to cumulate votes (i.e., cast for any one or more candidates a number of votes greater
than the number of the stockholders shares), unless the candidates names have been placed in
nomination prior to commencement of the voting and a stockholder has given notice prior to
commencement of the voting of the stockholders intention to cumulate votes. If any stockholder
has given such a notice, then every stockholder entitled to vote may cumulate votes for candidates
in nomination and give one candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which that stockholders shares are entitled, or
distribute the stockholders votes on the same principle among any or all of the candidates, as the
stockholder thinks fit. The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
Section 9. PROXIES. A stockholder may cast the votes entitled to be cast by the shares of
the stock owned of record by him either in person or by proxy executed in writing by the
stockholder or by his duly authorized agent. Such proxy shall be filed with the secretary of the
Corporation before or at the time of the meeting. A proxy shall be deemed signed if the
stockholders name is placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the stockholder or the stockholders attorney-in-fact. A validly
executed proxy which does not state that it is irrevocable shall continue in full force and effect
unless (a) revoked by the person executing it, or by a subsequent proxy executed by, or attendance
at the meeting and voting in person by, the person executing the proxy; or (b) written notice of
the death or incapacity of the maker of the proxy is received by the Corporation before the vote
pursuant to that proxy is counted; provided, however, that no proxy shall be valid after the
expiration of eleven (11) months from the date of the proxy unless otherwise provided in the proxy.
The revocability of a proxy that states on its face that it is revocable shall be governed by the
provisions of Section 2-507 of the Maryland General Corporation Law (MGCL).
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Section 10. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in the
name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by
the president or a vice president, a general partner or trustee thereof, as the case
may be, or a proxy appointed by any of the foregoing individuals, unless some other person who has
been appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such
corporation or other entity or agreement of the partners of a partnership presents a certified copy
of such bylaw, resolution or agreement, in which case such person may vote such stock. Any
director or other fiduciary may vote stock registered in his name as such fiduciary, either in
person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify
in writing to the Corporation that any shares of stock registered in the name of the stockholder
are held for the account of a specified person other than the stockholder. The resolution shall
set forth the class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be contained in it; if
the certification is with respect to a record date or closing of the stock transfer books, the time
after the record date or closing of the stock transfer books within which the certification must be
received by the Corporation; and any other provisions with respect to the procedure which the Board
of Directors considers necessary or desirable. On receipt of such certification, the person
specified in the certification shall be regarded as, for the purposes set forth in the
certification, the stockholder of record of the specified stock in place of the stockholder who
makes the certification.
Section 11. INSPECTORS. At any meeting of stockholders, the chairman of the meeting may
appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares represented at the meeting based upon their determination of the
validity and effect of proxies, count all votes, report the results and perform such other acts as
are proper to conduct the election and voting with impartiality and fairness to all the
stockholders.
Each report of an inspector shall be in writing and signed by him 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.
4
Section 12. NOMINATIONS AND PROPOSALS BY STOCKHOLDERS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Except as otherwise provided for in the charter of the Corporation with respect to Series
AA Preferred Directors, nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be made at an annual meeting of
stockholders (i) pursuant to the Corporations notice of meeting, (ii) by or at the direction of the Board of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record both at the time of giving of notice provided for in this Section 12(a) and
at the time of the annual meeting, who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 12(a).
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 12, the stockholder must
have given timely notice thereof in writing to the secretary of the Corporation and such other
business must otherwise be a proper matter for action by stockholders. To be timely, a
stockholders notice shall be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the preceding years annual meeting;
provided, however, that in the event that the date of the annual meeting is advanced by more than
thirty (30) days or delayed by more than sixty (60) days from such anniversary date or if the
Corporation has not previously held an annual meeting, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the 90th day prior to such annual meeting
and not later than the close of business on the later of the 60th day prior to such annual meeting
or the tenth day following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of a postponement or
adjournment of an annual meeting to a later date or time commence a new time period for the giving
of a stockholders notice as described above. Such stockholders notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required, in each case pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended (the Exchange Act)
(including such persons written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (ii) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any material interest in such
business of such stockholder and of the beneficial owner, if any, on whose behalf the proposal is
made; and (iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (x) the name and address of such stockholder, as they
appear on the Corporations books, and of such beneficial owner and (y) the number of shares of
each class of stock of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of this Section 12 to
the contrary, in the event that the number of directors to be elected to the Board of Directors is
increased and there is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 50 days prior to the
first anniversary of the preceding years annual meeting, a stockholders notice required by this
Section 12(a) shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the secretary at the principal
executive offices of the Corporation no later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
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(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of the stockholders as shall have been brought before the meeting
pursuant to the Corporations notice of meeting. Nominations of persons for election to the Board
of Directors may be made at a special meeting of stockholders at which directors are to be elected
(i) pursuant to the Corporations notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that directors shall be
elected at such special meeting, by any stockholder of the Corporation who is a stockholder of
record both at the time of giving of notice provided for in this Section 12(b) and at the time of
the special meeting, who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 12(b). In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more directors to the Board of Directors, any
such stockholder entitled to vote at the meeting may nominate a person or persons (as the case may
be) for election to such position as specified in the Corporations notice of meeting, if the
stockholders notice containing the information required by paragraph (a)(2) of this Section 12
shall be delivered to the secretary at the principal executive offices of the Corporation not
earlier than the close of business on 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 of Directors to be elected at such meeting. Only holders of
Series AA Preferred Stock shall be entitled to vote at a special meeting called for the purpose of
electing one or more Series AA Preferred Directors, as provided in Section 6.4(i) of the charter of
the Corporation. In no event shall the public announcement of a postponement or adjournment of a
special meeting to a later date or time commence a new time period for the giving of a
stockholders notice as described above.
(c) GENERAL.
(1) Only such persons who are nominated in accordance with the procedures set forth in this
Section 12 or, in the case of Series AA Preferred Directors, Section 6.4(i) of the charter of the
Corporation, shall be eligible to serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with the
procedures set forth in this Section 12. The chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with the procedures set forth in this Section
12 and, if any proposed nomination or proposed business is not in compliance with this Section 12,
to declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 12, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable news service or in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 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 12. Nothing in this
Section 12 shall be deemed to affect any rights of stockholders to request inclusion of proposals
in, or the right of the Corporation to omit a proposal from, the Corporations proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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Section 13. VOTING BY BALLOT. Voting on any question or in any election may be viva voce
unless the presiding officer shall order or any stockholder shall demand that voting be by ballot.
Section 14. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may be
taken at any annual or special meeting of stockholders may be taken without a meeting and without
prior notice if a consent, in writing, setting forth the action so taken is signed by the holders
of outstanding shares having not less than the minimum number of votes that would be necessary to
authorize or to take that action at a meeting at which all the shares entitled to vote on that
action were present and voted. In the case of election of directors, such a consent shall be
effective only if signed by the holders of all outstanding shares entitled to vote for the election
of directors. All such consents shall be delivered to the Corporation by delivery to the secretary
of the Corporation and shall be maintained among the corporate records. No written consent of any
stockholder, or the stockholders proxy holders, or a transferee of the shares, or a personal
representative of the stockholder or their respective proxy holders shall take effect unless
written consents signed by a sufficient number of stockholders to take the proposed action are
delivered to the secretary of the Corporation within sixty (60) days after the date on which the
earliest consent is dated.
If the consents of all stockholders entitled to vote have not been solicited in writing and if
the unanimous written consent of all stockholders shall not have been received, the secretary shall
give prompt notice of the corporate action approved by the stockholders without a meeting. This
notice shall be given in the manner specified in Section 4 of this Article, the notice shall be
given not later than ten (10) days after the effective date of such action to each holder of common
stock and to each stockholder who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under
the direction of its Board of Directors.
Section 2. NUMBER AND TENURE. The Corporation shall have eight (8) directors, which number
may be increased or decreased from time to time by the Board of Directors pursuant to a resolution
adopted by a majority of the entire Board of Directors, but the number of directors shall never be
less than six (6) nor more than eleven (11), unless otherwise approved by the majority vote of the
stockholders entitled to cast a majority of all the votes entitled to be cast on the matter. No
reduction in the number of directors by resolution of the Board of Directors shall have the effect
of removing any director from office prior to the expiration of his or her term.
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Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors shall be
held immediately after and at the same place as the annual meeting of stockholders, no notice other
than this Bylaw being necessary. The Board of Directors 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 of Directors without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or
at the request of the chairman of the board, president or by a majority of the directors then in
office. The person or persons authorized to call special meetings of the Board of Directors may
fix any place, either within or without the State of Maryland, as the place for holding any special
meeting of the Board of Directors called by them.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be delivered
personally or by telephone, facsimile transmission, United States mail or courier to each director
at his business or residence address. Notice by personal delivery, by telephone or a facsimile
transmission shall be given at least two (2) days prior to the meeting. Notice by mail shall be
given at least five (5) 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. Telephone notice shall be
deemed to be given when the director is personally given such notice in a telephone call to which
he 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 Corporation by the director and receipt of a
completed answer-back indicating receipt. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board of Directors need be stated in the
notice, unless specifically required by statute or these bylaws.
Section 6. QUORUM. A majority of the authorized directors shall constitute a quorum for
transaction of business at any meeting of the Board of Directors, provided that, if less than a
majority of such directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice, and provided further that if,
pursuant to the charter of the Corporation or these bylaws, the vote of a majority of a particular
group of directors is required for action, a quorum must also include a majority of such group.
The directors present at a meeting which has been duly called and convened may continue to
transact business until adjournment, notwithstanding the withdrawal of enough directors to leave
less than a quorum.
Section 7. VOTING. The action of the majority of the directors present at a meeting at which
a quorum is present shall be the action of the Board of Directors, unless the concurrence of a
greater proportion is required for such action by the Companys charter, these bylaws or applicable
statute.
Section 8. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or similar 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.
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Section 9. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if a consent in
writing to such action is signed by each director and such written consent is filed with the
minutes of proceedings of the Board of Directors.
Section 10. COMPENSATION. Directors shall not receive any stated salary for their services as
directors but, by resolution of the Board of Directors, may receive compensation per year and/or
per meeting and/or per visit to real property or other facilities owned or leased by the
Corporation and for any service or activity they performed or engaged in as directors. Directors
may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of
the Board of Directors or of any committee thereof and for their expenses, if any, in connection
with each property visit and any other service or activity they performed or engaged in as
directors; but nothing herein contained shall be construed to preclude any directors from serving
the Corporation in any other capacity and receiving compensation therefor.
Section 11. LOSS OF DEPOSITS. No director shall be liable for any loss which may occur by
reason of the failure of a bank, trust company, savings and loan association, or other institution
with whom moneys or stock of the Corporation have been deposited.
Section 12. SURETY BONDS. Unless required by law, no director shall be obligated to give any
bond or surety or other security for the performance of any of his duties.
Section 13. RELIANCE. Each director, officer, employee and agent of the Corporation shall, in
the performance of his duties with respect to the Corporation, be fully justified and protected
with regard to any act or failure to act in reliance in good faith upon the books of account or
other records of the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a director.
Section 14. CERTAIN DUTIES OF THE DIRECTORS. The directors shall have a fiduciary duty to
the Corporation and the stockholders to supervise the relationship between the Corporation and any
Advisor. The Board of Directors, by a majority vote (including a majority vote of the Independent
Directors), shall approve the form and content of any reports provided to the Corporations
stockholders as required by these bylaws or the Corporations charter and shall take reasonable
steps to insure that the requirements regarding such reports and the calling of the annual meeting
of the stockholders, as provided for in Article II, Section 2 of these bylaws, are met. For
purposes of these bylaws, the term Advisor shall mean a person or firm providing real estate
investment advisory services to the Corporation on an ongoing basis. For purposes of these bylaws,
the term Independent Director shall mean a director of the Corporation who is not affiliated,
directly or indirectly, with an Advisor (other than in his capacity as a trustee or a director of
another real estate investment entity being advised by an Advisor), whether by ownership of,
ownership interest in, employment by, any business or professional relationship with or service as
an officer or director of such Advisor or any of its Affiliates, and who performs no other services
for the Corporation at the time his or her independence is being determined. A director, however,
will not be considered independent if he or she is serving as a director for more than three real
estate investment entities organized by or affiliated with an Advisor of the Corporation, or any
director who is not an Independent Director. The term Independent Director shall also mean an individual who performs no other service for the
Corporation, except service as a director. For purposes of these bylaws, the term Affiliate
shall mean (i) any person directly or indirectly controlling, controlled by or under common control
with another person, (ii) any person owning or controlling ten percent (10%) or more of the
outstanding voting securities of such other person, (iii) any officer, director, trustee, or
general partner of such person, and (iv) if such person is an officer, director, trustee or general
partner of another entity, then the entity for which that person acts in any capacity.
9
Section 15. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The directors shall
have no responsibility to devote their full time to the affairs of the Corporation. Any director
or officer, employee or agent of the Corporation, in his personal capacity or in a capacity as an
affiliate, employee, or agent of any other person, or otherwise, may have business interests and
engage in business activities similar to or in addition to or in competition with those of or
relating to the Corporation.
Section 16. INDEPENDENT DIRECTORS. A majority of the directors of the Corporation shall be
Independent Directors.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from among
its members an Executive Committee, an Audit and Review Committee, a Compensation Committee and
other committees, composed of one or more directors, to serve at the pleasure of the Board of
Directors.
Section 2. POWERS. The Board of Directors may delegate to committees appointed under Section
1 of this Article any of the powers of the Board of Directors, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner as notice
for special meetings of the Board of Directors. A majority of the members of the committee shall
constitute a quorum for the transaction of business at any meeting of the committee. The act of a
majority of the members present at a meeting shall be the act of such committee. The Board of
Directors may designate a chairman of any committee, and such chairman or 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 of Directors shall otherwise provide. In the absence of any member of any
such committee, the members thereof present at any meeting, whether or not they constitute a
quorum, may appoint another director to act in the place of such absent member. Each committee
shall keep minutes of its proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board of Directors may
participate in a meeting by means of a conference telephone, video conference or similar
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.
10
Section 5. INFORMAL ACTION BY COMMITTEES. Any action required or permitted to be taken at any
meeting of a committee of the Board of Directors may be taken without a meeting, if a consent in
writing to such action is signed by each member of the committee and such written consent is filed
with the minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of Directors shall have the
power at any time to change the membership of any committee, to fill all vacancies, to designate
alternate members to replace any absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a chairman of
the board, a chief executive officer, a president, a secretary and a treasurer and may include a
vice chairman of the board, one or more vice presidents, a chief operating officer, a chief
financial officer, one or more assistant secretaries and one or more assistant treasurers. In
addition, the Board of Directors may from time to time appoint such other officers with such powers
and duties as they shall deem necessary or desirable. The officers of the Corporation shall be
elected annually by the Board of Directors at the first meeting of the Board of Directors 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 elected and qualified or until his death, resignation or removal
in the manner hereinafter provided. Any two or more offices except president and vice president
may be held by the same person. In its discretion, the Board of Directors may leave unfilled any
office except that of president, treasurer and secretary. Election of an officer or agent shall
not of itself create contract rights between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed by
the Board of Directors if in its judgment the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if any, of the person
so removed. Any officer of the Corporation may resign at any time by giving written notice of his
resignation to the Board of Directors, the chairman of the board, the chief executive officer, the
president or the secretary. Any resignation shall take effect at any time subsequent to the time
specified therein or, if the time when it shall become effective is not specified therein,
immediately upon its receipt. The acceptance of a resignation shall not be necessary to make it
effective unless otherwise stated in the resignation. Such resignation shall be without prejudice
to the contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors for the
balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a chief executive
officer. In the absence of such designation, the chairman of the board shall be the chief
executive officer of the Corporation. The chief executive officer shall have general responsibility for implementation of the policies of the Corporation, as determined by the Board of
Directors, and for the management of the business and affairs of the Corporation.
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Section 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief operating
officer. The chief operating officer shall have the responsibilities and duties as set forth by
the Board of Directors and the chief executive officer.
Section 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief financial
officer. The chief financial officer shall have the responsibilities and duties as set forth by
the Board of Directors and the chief executive officer.
Section 7. CHAIRMAN OF THE BOARD. The Board of Directors shall designate a chairman of the
board. The chairman of the board shall preside over the meetings of the Board of Directors and of
the stockholders at which he shall be present. The chairman of the board shall perform such other
duties as may be assigned to him or them by the Board of Directors.
Section 8. PRESIDENT. The president shall have the responsibilities and duties as set forth
by the Board of Directors and the chief executive officer. In the absence of a designation of a
chief operating officer by the Board of Directors, the president shall be the chief operating
officer.
Section 9. VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in
such office, the vice president (or in the event there be more than one vice president, the vice
presidents in the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be assigned to him by the
president or by the Board of Directors. The Board of Directors may designate one or more vice
presidents as executive vice president or as vice president for particular areas of responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the
stockholders, the Board of Directors and committees of the Board of Directors in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation; (d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (e) have general charge of the share
transfer books of the Corporation; and (f) in general perform such other duties as from time to
time may be assigned to him by the chief executive officer, the president or by the Board of
Directors.
Section 11. TREASURER. The treasurer shall have the custody of the funds and securities of
the Corporation and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. In the absence of a designation of a chief financial officer by the Board of Directors,
the treasurer shall be the chief financial officer of the Corporation.
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The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the president and
Board of Directors, at the regular meetings of the Board of Directors or whenever it may so
require, an account of all his transactions as treasurer and of the financial condition of the
Corporation.
If required by the Board of Directors, the treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to the Corporation, in
case of his death, resignation, retirement or removal from office, of all books, papers, vouchers,
moneys and other property of whatever kind in his possession or under his control belonging to the
Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant secretaries and
assistant treasurers, in general, shall perform such duties as shall be assigned to them by the
secretary or treasurer, respectively, or by the president or the Board of Directors. The assistant
treasurers shall, if required by the Board of Directors, give bonds for the faithful performance of
their duties in such sums and with such surety or sureties as shall be satisfactory to the Board of
Directors.
Section 13. SALARIES. The salaries and other compensation of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from receiving such salary
or other compensation by reason of the fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer or agent to enter into
any contract or to execute and deliver any instrument in the name of and on behalf of the
Corporation and such authority may be general or confined to specific instances. Any agreement,
deed, mortgage, lease or other document executed by one or more of the directors or by an
authorized person shall be valid and binding upon the Board of Directors and upon the Corporation
when authorized or ratified by action of the Board of Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by
such officer or agent of the Corporation in such manner as shall from time to time be determined by
the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may designate.
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ARTICLE VII
STOCK CERTIFICATES, RECORDS AND REPORTS
Section 1. CERTIFICATES. Each stockholder shall be entitled to a certificate or certificates
which shall represent and certify the number of shares of each class of stock held by him in the
Corporation. Each certificate shall be signed by the chief executive officer, the president or a
vice president and countersigned by the secretary or an assistant secretary or the treasurer or an
assistant treasurer and may be sealed with the seal, if any, of the Corporation. The signatures
may be either manual or facsimile. Certificates shall be consecutively numbered; and if the
Corporation shall, from time to time, issue several classes of stock, each class may have its own
number series. A certificate is valid and may be issued whether or not an officer who signed it is
still an officer when it is issued. 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 upon liquidation or which are redeemable at the option
of the Corporation, shall have a statement of such restriction, limitation, preference or
redemption provision, or a summary thereof, plainly stated on the certificate. If the Corporation
has authority to issue stock of more than one class, the certificate shall contain on the face or
back a full statement or summary of the designations and any preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of each class of stock and, if the
Corporation is authorized to issue any preferred or special class in series, the differences in the
relative rights and preferences between the shares of each series to the extent they have been set
and the authority of the Board of Directors to set the relative rights and preferences of
subsequent series. In lieu of such statement or summary, the certificate may state that the
Corporation will furnish a full statement of such information to any stockholder upon request and
without charge. If any class of stock is restricted by the Corporation as to transferability, the
certificate shall contain a full statement of the restriction or state that the Corporation will
furnish information about the restrictions to the stockholder on request and without charge.
Section 2. TRANSFERS. Upon surrender to the Corporation or the transfer agent of the
Corporation of a stock certificate duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, the Corporation shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock will be subject in
all respects to the charter of the Corporation and all of the terms and conditions contained
therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of Directors may
direct a new certificate to be issued in place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that
fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, an officer designated by the Board of Directors may, in his discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or the owners legal representative to advertise the same in such
manner as he shall require and/or to give bond, with sufficient surety, to the Corporation to
indemnify it against any loss or claim which may arise as a result of the issuance of a new
certificate.
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Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of Directors may
set, in advance, a record date for the purpose of determining stockholders entitled to notice of or
to vote at any meeting of stockholders or determining stockholders entitled to receive payment of
any dividend or the allotment of any other rights, or in order to make a determination of
stockholders for any other proper purpose. Such date, in any case, shall not be prior to the close
of business on the day the record date is fixed and shall be not more than ninety (90) days and, in
the case of a meeting of stockholders, not less than ten days, before the date on which the meeting
or particular action requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not longer than twenty (20) days. If the stock
transfer books are closed for the purpose of determining stockholders entitled to notice of or to
vote at a meeting of stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not closed for the determination
of stockholders, (a) the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of stockholders entitled to receive payment
of a dividend or an allotment of any other rights shall be the close of business on the day on
which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall apply to any adjournment thereof, except
when (i) the determination has been made through the closing of the transfer books and the stated
period of closing has expired or (ii) the meeting is adjourned to a date more than one hundred
twenty (120) days after the record date fixed for the original meeting, in either of which case a
new record date shall be determined as set forth herein.
Section 5. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may issue fractional
stock or provide for the issuance of scrip, all on such terms and under such conditions as they may
determine. Notwithstanding any other provision of the charter or these bylaws, the Board of
Directors may issue units consisting of different securities of the Corporation. Any security
issued in a unit shall have the same characteristics as any identical securities issued by the
Corporation, except that the Board of Directors may provide that for a specified period securities
of the Corporation issued in such unit may be transferred on the books of the Corporation only in
such unit.
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Section 6. STOCK LEDGER. The Corporation shall maintain at its principal office or at the
office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares of each class held by
such stockholder.
Section 7. ANNUAL REPORT TO STOCKHOLDERS. The Board of Directors shall cause an annual
report to be sent to the stockholders not later than one hundred twenty (120) days after the close
of each fiscal year. This report shall be sent at least fifteen (15) days before the annual
meeting of stockholders to be held during the next fiscal year and in the manner specified in
Article II, Section 4 of these bylaws. The annual report shall contain financial statements
(balance sheet, statement of income, statement of changes of financial position) prepared in
accordance with generally accepted accounting principles and accompanied by an auditors report
containing the opinion of an independent certified public accountant or independent public
accountant or, if there is no such report, the certificate of an authorized officer of the
Corporation that the statements were prepared without audit from the Corporations books and
records. The foregoing requirement of an annual report shall be waived so long as the shares of
common stock of the Corporation are held by fewer than one hundred (100) holders of record.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation
may be authorized and declared by the Board of Directors, subject to the provisions of law and the
charter of the Corporation. Dividends and other distributions may be paid in cash, property or
stock of the Corporation, subject to the provisions of law and the charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other distributions, there may
be set aside out of any assets of the Corporation available for dividends or other distributions
such sum or sums as the Board of Directors may from time to time, in its absolute discretion, think
proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for
repairing or maintaining any property of the Corporation or for such other purpose as the Board of
Directors shall determine to be in the best interest of the Corporation, and the Board of Directors
may modify or abolish any such reserve in the manner in which it was created.
Section 3. DISCLOSURE ON DISTRIBUTION. Any distribution of income or capital assets of the
Corporation to holders of securities of the Corporation other than its promissory notes shall be
accompanied by a written statement disclosing the source of the funds distributed. If, at the time
of distribution, this information is not available, a written explanation of the relevant circumstances shall accompany the distribution and the written statement disclosing the
sources of the funds distributed shall be sent to such holders not later than sixty (60) days after
the close of the year in which the distribution was made.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of Directors may from
time to time adopt, amend, revise or terminate any policy or policies with respect to investments
by the Corporation as it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall contain the name of the Corporation and the year of its incorporation
and the words Incorporated Maryland. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix its seal
to a document, it shall be sufficient to meet the requirements of any law, rule or regulation
relating to a seal to place the word (SEAL) adjacent to the signature of the person authorized to
execute the document on behalf of the Corporation.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the Corporation or
these bylaws or pursuant to applicable law, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose
of any meeting need be set forth in the waiver of notice, unless specifically required by statute.
The attendance of any person at any meeting shall constitute a waiver of notice of such meeting,
except where such person attends a meeting for the express purpose of objecting to the transaction
of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE XIII
AMENDMENT OF BYLAWS
Section 1. POWER OF DIRECTORS TO AMEND. The Board of Directors shall have the power to
adopt, alter or repeal these bylaws not inconsistent with the Corporations charter or applicable
law for the regulation and management of the affairs of the Corporation; provided, however, that
the Board of Directors may adopt a bylaw or an amendment to a bylaw changing the authorized number of directors only for the purpose of fixing the exact number of
directors of the Corporation as provided in Article III, Section 2 of these bylaws; and, provided,
further, that no amendment that would change any rights with respect to any outstanding class of
common stock by reducing the amount payable thereon upon liquidation of the Corporation, or
diminishing or eliminating any voting rights pertaining thereto, may be made unless also approved
by sixty-six and two-thirds percent (66-2/3rds%) of the outstanding shares of such class.
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Section 2. POWER OF STOCKHOLDERS TO AMEND. The holders of the Corporations common stock, at
any annual meeting or at a special meeting called for the purpose, may adopt, alter or repeal the
bylaws of the Corporation; provided, however, that the holders of the Series AA Preferred Stock
shall have the right, pursuant to Section 6.4(i)(1) of the charter, to approve an amendment,
alteration or repeal of any provision of these bylaws that affects adversely the relative rights,
preferences, qualifications, limitations or restrictions of the Series AA Preferred Stock. Any
change to the bylaws made by the stockholders may not be altered in any manner by the directors
prior to the next annual meeting of stockholders.
ARTICLE XIV
MARYLAND BUSINESS COMBINATION STATUTE
The Corporation elects to be governed by the provisions of Sections 3-601 through 3-604 of the
MGCL (the Maryland Business Combination Act) as in effect on the date these bylaws are adopted
(Effective Date). The Corporation elects not to be governed by any amendment to the Maryland
Business Combination Act after the Effective Date unless the Board of Directors, pursuant to a
resolution approved by a majority of the directors then in office, determines that such amendment
shall apply to the Corporation. In the event that the Maryland Business Combination Act is
repealed or, in the sole discretion of the Board of Directors, amended or substantially altered to
the detriment of the Corporation, the Corporation shall continue to be governed by the provisions
of the Maryland Business Combination Act in effect on the Effective Date, together with any
amendments to the Maryland Business Combination Act that the Board of Directors has determined
shall apply to the Corporation.
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