Attached files
file | filename |
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8-K - FORM 8-K - TIPTREE INC. | y04169e8vk.htm |
EX-10.3 - EX-10.3 - TIPTREE INC. | y04169exv10w3.htm |
EX-10.2 - EX-10.2 - TIPTREE INC. | y04169exv10w2.htm |
EX-10.1 - EX-10.1 - TIPTREE INC. | y04169exv10w1.htm |
EX-10.4 - EX-10.4 - TIPTREE INC. | y04169exv10w4.htm |
Exhibit 3.1
CARE INVESTMENT TRUST INC.
THIRD AMENDED AND RESTATED BYLAWS
(Including all amendments through November 4, 2010)
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of Care Investment Trust Inc. (the
Corporation) in the State of Maryland shall be located at such place as the Board of Directors of
the Corporation (the Board of Directors) may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices, including
a principal executive office, at such places as the Board of Directors may from time to time
determine or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal
executive office of the Corporation or at such other place as shall be set by the Board of
Directors and stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for the election of
directors and the transaction of any business within the powers of the Corporation shall be held on
such date and at such time as designated solely by the Board of Directors.
Section 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, president, chief executive officer or Board
of Directors may call a special meeting of the stockholders. Subject to subsection (b) of this
Section 3, a special meeting of stockholders shall also be called by the secretary of the
Corporation upon the written request of the stockholders entitled to cast not less than a majority
of all the votes entitled to be cast at such meeting.
(b) Stockholder Requested Special Meetings. (1) Any stockholder of record seeking to
have stockholders request a special meeting shall, by sending written notice to the secretary of
the Corporation (the Record Date Request Notice) by registered mail, return receipt requested,
request the Board of Directors to fix a record date to determine the stockholders entitled to
request a special meeting (the Request Record Date). The Record Date Request Notice shall set
forth the purpose of the meeting and the matters (which shall be limited to proper matters for
action by the stockholders) proposed to be acted on at it, shall be signed by one or more
stockholders of record as of the date of signature (or their duly authorized agents), shall (A)
bear the date of signature of each such stockholder (or such agent), (B) set forth all information
relating to each such stockholder that must be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election contest is not
involved), or is otherwise required, in each case pursuant to Regulation 14A (or any successor
provision) under the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (the Exchange Act), and (C) if the Record Date Request Notice is signed by
an agent for a stockholder, be accompanied by a writing from the stockholder authorizing the agent
to act on its behalf for such purpose. Upon receiving the Record Date Request Notice, the Board of
Directors may fix a Request Record Date. The Request Record Date shall not precede and shall not
be more than ten (10) days after the close of business on the date on which the resolution fixing
the Request Record Date is adopted by the Board of Directors. If the Board of Directors, within
ten (10) 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 (10th) day after the first date on which the Record Date Request
Notice is received by the secretary.
(2) In order for any stockholder to request a special meeting, one or more written requests
for a special meeting signed by stockholders of record (or their duly authorized agent) as of the
Request Record Date entitled to cast not less than a majority (the Special Meeting Percentage) of
all of the votes entitled to be cast at such meeting (the Special Meeting Request) shall be
delivered to the secretary. In addition, the Special Meeting Request shall (A) set forth the
purpose of the meeting and the matters proposed to be acted on at it (which shall be limited to
those matters set forth in the Record Date Request Notice received by the secretary that are proper
matters for action by the stockholders), (B) bear the date of signature of each such stockholder
(or such authorized agent) signing the Special Meeting Request, (C) set forth (i) the name and
address, as they appear in the Corporations books, of each stockholder signing such request (or on
whose behalf the Special Meeting Request is signed), (ii) the class, series and number of all
shares of stock of the Corporation which are owned of record by each such stockholder, and (iii)
the nominee holder for and the class, series and number of any shares of stock of the Corporation
owned by such stockholder beneficially but not of record, (D) if the Special Meeting Request is
signed by an agent for a stockholder, be accompanied by a writing from the stockholder authorizing
the agent to act on its behalf for such purpose, (E) be sent to the secretary by registered mail,
return receipt requested, and (F) be received by the secretary within sixty (60) days after the
Request Record Date. Any requesting stockholder (or its duly authorized agent) may revoke his, her
or its request for a special meeting at any time by written revocation delivered to the secretary;
provided that any such revocation delivered by an agent for a stockholder must be accompanied by a
writing from the stockholder authorizing the agent to act on its behalf for such purpose.
(3) The secretary shall inform the requesting stockholders of the reasonably estimated cost of
preparing and mailing the notice of meeting (including the Corporations proxy materials). The
secretary shall not be required to call a special meeting upon stockholder request and such meeting
shall not be held unless, in addition to the documents required by paragraph (2) of this Section
3(b), the secretary receives payment of such reasonably estimated cost from the requesting
stockholders prior to the preparation and mailing of any 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 of directors, chief
executive
officer, president or Board of Directors, whoever has called the meeting. In the case of
any special meeting called by the secretary upon the request of stockholders (a Stockholder
Requested Meeting), such meeting shall be held at such place, date and time as may be designated
by the Board of Directors; provided, however, that the date of any Stockholder Requested Meeting
shall be not more than ninety (90) days after the record date for such meeting (the Meeting Record
Date); and provided further that if the Board of Directors fails to designate, within ten (10)
days after the date that a valid Special Meeting Request is actually received by the secretary (the
Delivery Date), a date and time for a Stockholder Requested Meeting, then such meeting shall be
held at 2:00 p.m. local time on the ninetieth (90th) day after the Meeting Record Date
or, if such ninetieth (90th) day is not a Business Day (as defined below), on the first
preceding Business Day; and provided, further, that in the event that the Board of Directors fails
to designate a place for a Stockholder Requested Meeting within ten (10) days after the Delivery
Date, then such meeting shall be held at the principal executive office of the Corporation. In
fixing a date for any special meeting, the chairman of the board, chief executive officer,
president or Board of Directors may consider such factors as he, she or it deems relevant within
the good faith exercise of business judgment, including, without limitation, the nature of the
matters to be considered, the facts and circumstances surrounding any request for the meeting and
any plan of the Board of Directors to call an annual meeting or a special meeting. In the case of
any Stockholder Requested Meeting, if the Board of Directors fails to fix a Meeting Record Date
that is a date within thirty (30) days after the Delivery Date, then the close of business on the
thirtieth (30th) day after the Delivery Date shall be the Meeting Record Date. The
Board of Directors may revoke the notice for any Stockholder Requested Meeting in the event that
the requesting stockholders fail to comply with the provisions of paragraph (3) of this Section
3(b).
(5) If written revocations of requests for the special meeting have been delivered to the
secretary and the result is that stockholders of record 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 to the secretary, the secretary shall: (i) if the notice of meeting has not
already been mailed, refrain from mailing 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
the special meeting, or (ii) if the notice of meeting has been mailed and if the secretary first
sends to all requesting stockholders who have not revoked requests for a special meeting written
notice of any revocation of a request for the special meeting and written notice of the secretarys
intention to revoke the notice of the meeting, revoke the notice of the meeting at any time before
ten days before the commencement of the meeting. Any request for a special meeting received after
a revocation by the secretary of a notice of a meeting shall be considered a request for a new
special meeting.
(6) The chairman of the Board of Directors, the chief executive officer, the president or the
Board of Directors may appoint regionally or nationally recognized independent inspectors of
elections, who may be the transfer agent for shares of the Corporation, or an affiliate thereof, to
act as the agent of the Corporation for the purpose of promptly performing a ministerial review of
the validity of any purported Special Meeting Request received by the secretary. For the purpose
of permitting the inspectors to perform such review, no such purported request shall be deemed to
have been delivered to the secretary until the earlier of (i) ten (10) Business Days after receipt
by the secretary of such purported request and (ii) such
date as the independent inspectors certify
to the Corporation that the valid requests received by the
secretary represent at least a majority of the issued and outstanding shares of stock that
would be entitled to vote at such meeting. Nothing contained in this paragraph (6) shall in any
way be construed to suggest or imply that the Corporation or any stockholder shall not be entitled
to contest the validity of any request, whether during or after such ten (10) 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 or a
Sunday or that is neither a legal holiday nor a day on which banking institutions in the State of
New York are authorized or required by law or regulation or executive order to close.
Section 4. NOTICE. Not less than ten nor more than 90 days before each meeting of
stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to
each stockholder not entitled to vote who is entitled to notice of the meeting notice stating the
time and place of the meeting, if any, and the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and may vote at the meeting
and, in the case of a special meeting or as otherwise may be required by any statute, the purpose
for which the meeting is called, either by mail, by presenting it to such stockholder personally,
by leaving it at the stockholders residence or usual place of business, by transmitting it to the
stockholder by an electronic transmission to any address or number of the stockholder at which the
stockholder receives electronic transmissions or by any other means permitted by Maryland law. If
mailed, such notice shall be deemed to be given when deposited in the United States mail addressed
to the stockholder at the stockholders address as it appears on the records of the Corporation,
with postage thereon prepaid.
Subject to Article II, Section 10(a) of these Bylaws, any business of the Corporation may be
transacted at an annual meeting of stockholders without being specifically designated in the
notice, except such business as is required by any statute to be stated in such notice. No
business shall be transacted at a special meeting of stockholders except as specifically designated
in the notice.
Section 5. ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted
by an individual appointed by the Board of Directors to be chairman of the meeting or, in the
absence of such appointment, by the chairman of the board or, in the case of a vacancy in the
office or absence of the chairman of the board, by one of the following officers present at the
meeting: the vice chairman of the board, if there be one, the chief executive officer, the
president, the vice presidents in their order of rank and seniority, or, in the absence of such
officers, a chairman chosen by the stockholders by the vote of a majority of the votes cast by
stockholders present in person or by proxy. The secretary, or, in the secretarys absence, an
assistant secretary, or in the absence of both the secretary and assistant secretaries, a person
appointed by the Board of Directors or, in the absence of such appointment, a person appointed by
the chairman of the meeting shall act as secretary. In the event that the secretary presides at a
meeting of the stockholders, an assistant secretary, or in the absence of any assistant
secretaries, a person appointed by the Board of Directors or, in the absence of such
appointment, a
person appointed by the chairman of the meeting, shall record the minutes of the
meeting. The order of business and all other matters of procedure at any meeting of
stockholders shall be determined by the chairman of the meeting. The chairman of the meeting may
prescribe such rules, regulations and procedures and take such action as, in the discretion of such
chairman, are appropriate for the proper conduct of the meeting, including, without limitation: (a)
restricting admission to the time set for the commencement of the meeting; (b) limiting attendance
at the meeting to stockholders of record of the Corporation, their duly authorized proxies or other
such persons as the chairman of the meeting may determine; (c) limiting participation at the
meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter,
their duly authorized proxies or other such persons as the chairman of the meeting may determine;
(d) limiting the time allotted to questions or comments by participants; (e) maintaining order and
security at the meeting; (f) removing any stockholder who refuses to comply with meeting
procedures, rules or guidelines as set forth by the chairman of the meeting; (g) determining when
the polls should be opened and closed; and (h) recessing the meeting, adjourning the meeting to a
later date and time and place announced at the meeting or concluding the meeting. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
Section 6. QUORUM. At any meeting of stockholders, the presence in person or by proxy
of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on
any matter shall constitute a quorum; but this section shall not affect any requirement under any
statute or the charter of the Corporation (the Charter) for the vote necessary for the adoption
of any measure. If, however, such quorum shall not be present at any meeting of the stockholders,
the chairman of the meeting or the stockholders entitled to vote at such meeting, present in person
or by proxy, shall have the power to adjourn the meeting from time to time to a date not more than
120 days after the original record date without notice other than announcement at the meeting. At
such adjourned meeting at which a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which has been duly called
and convened, may continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 7. VOTING. A plurality of all the votes cast at a meeting of stockholders
duly called and at which a quorum is present shall be sufficient to elect a director. Each share
may be voted for as many individuals as there are directors to be elected and for whose election
the share is entitled to be voted. A majority of the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to approve any other matter which may
properly come before the meeting, unless more than a majority of the votes cast is required by
statute or by the Charter. Unless otherwise provided in the Charter, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting
of stockholders.
Section 8. PROXIES. A stockholder may cast the votes entitled to be cast by the
shares of stock owned of record by the stockholder in person or by proxy executed by the
stockholder or by the stockholders duly authorized agent in any manner permitted by law.
Such proxy or evidence of authorization of such proxy shall be filed with the secretary of the
Corporation before or at the meeting. No proxy shall be valid more than eleven months after its
date unless otherwise provided in the proxy.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in
the name of a corporation, partnership, limited liability company, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a general partner,
managing member or trustee thereof, as the case may be, or a proxy appointed by any of the
foregoing individuals, unless some other person who has been appointed to vote such stock pursuant
to a bylaw or a resolution of the governing body of such corporation or other entity or agreement
of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement,
in which case such person may vote such stock. Any director or other fiduciary may vote stock
registered in his or her name as such fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a stockholder may certify
in writing to the Corporation that any shares of stock registered in the name of the stockholder
are held for the account of a specified person other than the stockholder. The resolution shall
set forth the class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be contained in it; if
the certification is with respect to a record date or closing of the stock transfer books, the time
after the record date or closing of the stock transfer books within which the certification must be
received by the Corporation; and any other provisions with respect to the procedure which the Board
of Directors considers necessary or desirable. On receipt of such certification, the person
specified in the certification shall be regarded as, for the purposes set forth in the
certification, the stockholder of record of the specified stock in place of the stockholder who
makes the certification.
Section 10. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER
PROPOSALS.
(a) Annual Meetings of Stockholders. (1) Nominations of individuals for election to
the Board of Directors and the proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders (i) pursuant to the Corporations notice of meeting,
(ii) by or at the direction of the Board of Directors or (iii) by a stockholder of the Corporation
who was a stockholder of record both at the time of giving of notice by the stockholder as provided
for in this Section 10(a) and at the time of the annual meeting, who is entitled to vote at the
meeting and who has complied with this Section 10(a); clause (iii) shall be
the exclusive means for
a stockholder to make nominations or submit other business (other than matters properly brought
under Rule 14a-8 under the Securities Exchange Act of 1934, as
amended (the Exchange Act) or director nominations made under Rule 14a-11 under the Exchange
Act and included in the Corporations notice of meeting) before an annual meeting of stockholders.
(2) For nominations for election to the Board of Directors 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 10, the stockholder must have given timely notice thereof in writing to the secretary
of the Corporation and such other business must otherwise be a proper matter for action by the
stockholders. To be timely, a stockholders notice shall set forth all information required under
this Section 10 and shall be delivered to the secretary at the principal executive office of the
Corporation not earlier than the one hundred fiftieth (150th) day prior to the first
(1st) anniversary of the date of mailing of the notice for the preceding years annual
meeting nor later than 5:00 p.m., Eastern Time, on the one hundred twentieth (120th) day
prior to the first (1st) anniversary of the date of mailing of the notice for the
preceding years annual meeting; provided, however, that in the event that the date of the annual
meeting is advanced or delayed by more than thirty (30) days from the first (1st)
anniversary of the date of the preceding years annual meeting, notice by the stockholder to be
timely must be so delivered not earlier than the one hundred fiftieth (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
one hundred twentieth (120th) day prior to the date of such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such meeting is
first made. The public announcement of a postponement or adjournment of an annual meeting shall
not commence a new time period for the giving of a stockholders notice as described above. Such
stockholders notice shall set forth (i) as to each individual whom the stockholder proposes to
nominate for election or reelection as a Director (A) the name, age, business address and residence
address of such individual, (B) the class, series and number of any shares of stock of the
Corporation that are beneficially owned by such individual, (C) the date such shares were acquired
and the investment intent of such acquisition, (D) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among the stockholder or
Stockholder Associated Person, if any, and their respective affiliates and associates, or others
acting in concert with the stockholder or any Stockholder Associated Person, on the one hand, and
each proposed nominee, or his or her respective affiliates and associates, or others acting in
concert with the proposed nominee, on the other hand, including, without limitation all information
that would be required to be disclosed pursuant to Rule 404 promulgated under Regulation S-K if the
stockholder making the nomination and any Stockholder Associated Person on whose behalf the
nomination is made or any affiliate or associate of the stockholder or Stockholder Associated
Person, if any, or any person acting in concert with the stockholder or any Stockholder Associated
Person, were the registrant for purposes of Rule 404 and the nominee were a director or executive
officer of such registrant and (E) all other information relating to such individual that is
required to be disclosed in solicitations of proxies for election of Directors in an election
contest (even if an election contest is not involved), or is otherwise required, in each case
pursuant to Regulation 14A (or any successor provision) under the Exchange Act (including such
individuals 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, set forth (a) a brief description of the business desired to be brought before the
meeting, the
reasons for conducting the business at the meeting and any material interest of the
stockholder and Stockholder Associated Person, if any, in the business and (b) a description of all
agreements, arrangements and understandings between the stockholder and Stockholder Associated
Person, if any, and any other person or persons (including their names) in connection with the
proposal of the business by such stockholder; (iii) as to the stockholder giving the notice and any
Stockholder Associated Person: (A) the name and address of that stockholder, as they appear on the
Corporations books, and of that Stockholder Associated Person, if any, (B) (1) the class or series
and number of shares of the Corporation which are, directly or indirectly, owned beneficially and
of record by that stockholder and that Stockholder Associated Person, if any, (2) any option,
warrant, convertible security, stock appreciation right, or similar right with an exercise or
conversion privilege or a settlement payment or mechanism at a price related to any class or series
of shares of the Corporation or with a value derived in whole or in part from the value of any
class or series of shares of the Corporation, whether or not such instrument or right shall be
subject to settlement in shares of the underlying class or series of capital stock of the
Corporation or otherwise (a Derivative Instrument) directly or indirectly owned beneficially by
the stockholder and Stockholder Associated Person, if any, and any other direct or indirect
opportunity to profit or share in any profit derived from any increase or decrease in the value of
shares of the Corporation, (3) any proxy, contract, arrangement, understanding, or relationship
pursuant to which the stockholder and Stockholder Associated Person, if any, has a right to vote
any shares of any security of the Corporation, (4) any short interest in any security of the
Corporation (for purposes of this Section 10 a person shall be deemed to have a short interest in a
security if such person directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit of share in any profit derived from any
decrease in the value of the subject security) of the stockholder and Stockholder Associated
Person, if any, (5) any rights to dividends on the shares of the Corporation owned beneficially by
the stockholder and Stockholder Associated Person, if any, that are separated or separable from the
underlying shares of the Corporation, (6) any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership in
which the stockholder or any Stockholder Associated Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner and (7) any performance-related fees
(other than an asset-based fee) that the stockholder or any Stockholder Associated Person is
entitled to based on any increase or decrease in the value of shares of the Corporation or
Derivative Instruments, if any, as of the date of the notice, including without limitation any
interests held by members of that stockholders or Stockholder Associated Persons immediate family
sharing the same household (which information shall be supplemented by the stockholder and
Stockholder Associated Person, if any, not later than ten days after the record date for the
meeting to disclose such ownership as of the record date), and (C) any other information relating
to the stockholder and Stockholder Associated Person, if any, that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for, as applicable, the proposal and/or for the election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder; (iv) with respect to each nominee for election or reelection to the Board
of Directors, include a completed and signed questionnaire, representation and agreement required
by Section 11 of this Article; and (v) to the extent known by the stockholder
giving the notice,
the name and address of any other stockholder supporting the nominee for election or reelection as
a Director or the proposal of other business on the date of such
stockholders notice. The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the eligibility of the
proposed nominee to serve as an independent director of the Corporation or that could be material
to a reasonable stockholders understanding of the independence or lack of independence of the
nominee.
(3) Notwithstanding anything in this subsection (a) of this Section 10 to the contrary, in the
event the Board of Directors increases the number of Directors in accordance with Article III,
Section 2 of these Bylaws, and there is no public announcement of such action at least one hundred
thirty (130) days prior to the first (1st) anniversary of the date of mailing of the
notice of the preceding years annual meeting, a stockholders notice required by this Section
10(a) shall also be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the principal executive
office of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth (10th)
day following the day on which such public announcement is first made by the Corporation.
(4) For purposes of this Section 10, Stockholder Associated Person of any
stockholder shall mean (i) any person controlling, directly or indirectly, or acting in concert
with, such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of
record or beneficially by such stockholder and (iii) any person controlling, controlled by or under
common control with such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of individuals for election to the Board of Directors
may be made at a special meeting of stockholders at which Directors are to be elected (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 10 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 10. In the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more individuals to the Board of Directors, any such stockholder may
nominate an individual or individuals (as the case may be) for election as a Director as specified
in the Corporations notice of meeting, if the stockholders notice required by paragraph (a)(2) of
this Section 10 (including the completed and signed questionnaire, representation and agreement
required by Section 11 of this Article) shall be delivered to the secretary at the principal
executive office of the Corporation not earlier than the one hundred twentieth (120th)
day prior to such special meeting and not later than 5:00 p.m., Eastern Time on the later of the
ninetieth (90th) day prior to such special meeting or the tenth (10th) day
following the day on which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such meeting. The public
announcement of a postponement or adjournment of a special meeting shall not commence a new time
period for the giving of a stockholders notice as described above.
(c) General. (1) Upon written request by the secretary or the Board of Directors or
any committee thereof, any stockholder proposing a nominee for election as a Director or any
proposal for other business at a meeting of stockholders shall provide, within five (5) Business
Days of delivery of such request (or such other period as may be specified in such request),
written verification, satisfactory, in the discretion of the Board of Directors or any committee
thereof or any authorized officer of the Corporation, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section 10. If a stockholder fails to
provide such written verification within such period, the information as to which written
verification was requested may be deemed not to have been provided in accordance with this Section
10.
(2) Only such individuals who are nominated in accordance with this Section 10 shall be
eligible for election by stockholders as Directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with this
Section 10. The chairman of the meeting shall have the power to determine whether a nomination or
any other business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with this Section 10 and, if any proposed nomination or business is not in
compliance with this Section 10 to declare such defective nomination or proposal be disregarded.
(3) For purposes of this Section 10, (a) the date of mailing of the notice shall mean the
date of the proxy statement for the solicitation of proxies for election of Directors and (b)
public announcement shall mean disclosure (i) in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable news service or (ii) in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 10, 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 10. Nothing in this
Section 10 shall be deemed to affect any right of a stockholder to request inclusion of a proposal
in, nor the right of the Corporation to omit a proposal from, the Corporations proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act or the right of a
stockholder to request inclusion of a director nominee, nor the right of the Corporation to omit
such director nominee, from the Corporations proxy statement pursuant to rule 14a-11 (or any
successor provision) under the Exchange Act; provided, however, that any references in this Section
10 to the Exchange Act or the rules promulgated under the Exchange Act are not intended to and
shall not limit the requirements applicable to nominations or proposals as to any other business
considered pursuant to paragraphs (a)(1)(iii) and (b) of this Section 10.
Section 11. SUBMISSION OF QUESTIONNAIRE, REPRESENTATION AND AGREEMENT. To be eligible to be a
nominee for election or reelection as a director of the Corporation, a person must deliver (in
accordance with the time periods prescribed for delivery of notice under Section 10 of this
Article) to the secretary at the principal offices of the Corporation a written questionnaire with
respect to the background and qualification of such person and the background of any other person
or entity on whose behalf the nominee is being nominated (which questionnaire shall be provided by
the secretary upon written request) and a
written representation, and agreement (in the form
provided by the secretary upon written
request) that that person (i) is not and will not become a party to (a) any agreement,
arrangement or understanding with, and has not given any commitment or assurance to, any person or
entity as to how that person, if elected as a director of the Corporation, will act or vote on any
issue or question (a Voting Commitment) that has not been disclosed to the Corporation or (b) any
Voting Commitment that could limit or interfere with that persons ability to comply, if elected as
a director of the Corporation, with that persons duties to the Corporation under applicable law,
(ii) is not and will not become a party to any agreement, arrangement or understanding with any
person or entity other than the Corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director that has not
been disclosed in the questionnaire, representation or agreement, and (iii) in the persons
individual capacity and on behalf of any person or entity on whose behalf the nominee is being
nominated, would be in compliance, if elected as a director of the Corporation, and will comply,
with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality
and stock ownership and trading policies and guidelines of the Corporation.
Section 12. INSPECTORS. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more individual inspectors or one or more entities that designate
individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or
inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or
more inspectors. In case any person who may be appointed as an inspector fails to appear or act,
the vacancy may be filled by appointment made by the Board of Directors in advance of the meeting
or at the meeting by the chairman of the meeting. The inspectors, if any, shall determine the
number of shares outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all stockholders. Each such report
shall be in writing and signed by him or her or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
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. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of
the Charter or these Bylaws, Title 3, Subtitle 7 of the Corporations and Associations Article of
the Annotated Code of Maryland (or any successor statute) shall not apply to any acquisition by any
person of shares of stock of the Corporation. This section may be repealed, in whole or in part,
at any time, whether before or after an acquisition of control shares and, upon such repeal, may,
to the extent provided by any successor bylaw, apply to any prior or subsequent control share
acquisition.
Section 15. MEETING BY CONFERENCE TELEPHONE. The Board of Directors or the chairman of
the meeting may permit stockholders to 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
constitutes presence in person at the meeting.
Section 16. RATIFICATION. The stockholders may ratify and make binding on the
Corporation any action or inaction by the Corporation or its officers to the extent that the
stockholders could have originally authorized the matter. Moreover, any action or inaction
challenged 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 stockholders, and if so
ratified, shall have the same force and effect as if the challenged action or inaction had been
originally duly authorized, and such ratification shall, to the maximum extent permitted by law, be
binding upon the Corporation and its stockholders and shall constitute a bar to any claim or
execution of any judgment in respect of such challenged action or inaction.
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. All powers of the Corporation may be
exercised by or under the authority of the Board of Directors except as conferred on or reserved to
the stockholders by law or by the Charter or these Bylaws.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any
special meeting called for that purpose, a majority of the entire Board of Directors may establish,
increase or decrease the number of directors, provided that the number thereof shall never be less
than the minimum number required by the Maryland General Corporation Law (the MGCL), nor more
than 15, and further provided that the tenure of office of a director shall not be affected by any
decrease in the number of directors.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of Directors
shall be held immediately after and at the same place as the annual meeting of stockholders, no
notice other than this Bylaw being necessary. In the event such meeting is not so held, the
meeting may be held at such time and at any place or by means of remote communication as shall be
specified in a notice given as hereinafter provided for special meetings of the Board of Directors.
The Board of Directors may provide, by resolution, the time and place for the holding of regular
meetings of the Board of Directors without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called
by or at the request of the chairman of the board, the chief executive officer, the president or by
a majority of the directors then in office. The person or persons authorized to
call special
meetings of the Board of Directors may fix any place as the place for holding any special meeting
of the Board of Directors called by them or may fix remote communication as
the means by which any special meeting of the Board of Directors called by them will be held.
The Board of Directors may provide, by resolution, the time and place, if any, and the means of
remote communication, if any, for the holding of special meetings of the Board of Directors without
other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board of Directors shall be
delivered personally or by telephone, electronic mail, facsimile transmission, United States mail
or courier to each director at his or her business or residence address. Notice by personal
delivery, telephone, electronic mail or facsimile transmission shall be given at least 24 hours
prior to the meeting. Notice by United States mail shall be given at least three days prior to the
meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone
notice shall be deemed to be given when the director or his or her agent is personally given such
notice in a telephone call to which the director or his or her agent is a party. Electronic mail
notice shall be deemed to be given upon transmission of the message to the electronic mail address
given to the Corporation by the director. Facsimile transmission notice shall be deemed to be
given upon completion of the transmission of the message to the number given to the Corporation by
the director and receipt of a completed answer-back indicating receipt. Notice by United States
mail shall be deemed to be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or
delivered to a courier properly addressed. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board of Directors need be stated in the
notice, unless specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the directors shall constitute a quorum for
transaction of business at any meeting of the Board of Directors, provided that, if less than a
majority of such directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice, and provided further that if,
pursuant to applicable statute, the Charter or these Bylaws, the vote of a majority of a particular
group of directors is required for action, a quorum must also include a majority of such group.
The directors present at a meeting which has been duly called and convened may continue to
transact business until adjournment, notwithstanding the withdrawal of enough directors to leave
less than a quorum.
Section 7. VOTING. The action of the majority of the directors present at a meeting
at which a quorum is present shall be the action of the Board of Directors, unless the concurrence
of a greater proportion is required for such action by applicable statute or the Charter. If
enough directors have withdrawn from a meeting to leave less than a quorum but the meeting is not
adjourned, the action of the majority of the directors necessary to constitute a quorum at such
meeting shall be the action of the Board of Directors, unless the concurrence of a greater
proportion is required for such action by applicable statute, the Charter or these Bylaws.
Section 8. ORGANIZATION. At each meeting of the Board of Directors, the chairman of
the board or, in the absence of the chairman of the board, the vice chairman of the board, if any,
shall act as chairman. In the absence of both the chairman of the board and vice
chairman of the board, the chief executive officer or, in the absence of the chief executive
officer, the president or, in the absence of the president, a director chosen by a majority of the
directors present, shall act as chairman. The secretary or, in his or her absence, an assistant
secretary of the Corporation or, in the absence of the secretary and all assistant secretaries, a
person appointed by the chairman, shall act as secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or other communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these means shall constitute
presence in person at the meeting.
Section 10. WRITTEN CONSENT BY DIRECTORS. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if a consent in
writing or by electronic transmission to such action is given by each director and such written
consent is filed in paper or electronic form with the minutes of proceedings of the Board of
Directors.
Section 11. VACANCIES. If for any reason any or all the directors cease to be
directors, such event shall not terminate the Corporation or affect these Bylaws or the powers of
the remaining directors hereunder (even if fewer than three directors remain). Until such time as
the election in the Charter to be subject to the provisions of Section 3-804(c) becomes effective,
(a) any vacancy on the Board of Directors for any cause other than an increase in the number of
directors shall be filled by a majority of the remaining directors, even if such majority is less
than a quorum, (b) any vacancy in the number of directors created by an increase in the number of
directors may be filled by a majority vote of the entire Board of Directors and (c) any individual
so elected as director shall serve until the next annual meeting of stockholders and until his or
her successor is elected and qualifies. After such election becomes effective, except as may be
provided by the Board of Directors in setting the terms of any class or series of stock, (a) any
and all vacancies on the Board of Directors may be filled only by the affirmative vote of a
majority of the remaining directors in office, even if the remaining directors do not constitute a
quorum, and (b) any director elected to fill a vacancy shall serve for the remainder of the full
term of the directorship in which such vacancy occurred and until a successor is elected and
qualified.
Section 12. COMPENSATION. Directors shall not receive any stated salary for their
services as directors but, by resolution of the Board of Directors, may receive compensation per
year and/or per meeting and/or per visit to real property or other facilities owned or leased or to
be acquired 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 13. LOSS OF DEPOSITS. No director shall be liable for any loss which may
occur by reason of the failure of the bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
Section 14. SURETY BONDS. Unless required by law, no director shall be obligated to
give any bond or surety or other security for the performance of any of his or her duties.
Section 15. RELIANCE. Each director, officer, employee and agent of the Corporation
shall, in the performance of his or her duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good faith upon the books of
account or other records of the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a director.
Section 16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
directors shall have no responsibility to devote their full time to the affairs of the Corporation.
Any director or officer, employee or agent of the Corporation, in his or her personal capacity or
in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to or in addition to or in competition
with those of or relating to the Corporation.
Section 17. RESIGNATIONS. Any Director may resign at any time by sending a notice of
such resignation in writing or by electronic transmission to the principal executive office of the
Corporation addressed to the chairman of the board, the chief executive officer or the president.
Unless otherwise specified therein, such resignation shall take effect upon receipt. Such
resignation may provide that it becomes effective on some future date, the occurrence of a certain
future event or the acceptance of the board of directors, the chairman of the board or chief
executive officer.
Section 18. RATIFICATION. The Board of Directors may ratify and make binding on the
Corporation any action or inaction by the Corporation or its officers to the extent that the Board
of Directors could have originally authorized the matter. Moreover, any action or inaction
challenged in any stockholders derivative proceeding or any other proceeding on the ground of lack
of authority, defective or irregular execution, adverse interest of a director, officer or
stockholder, non-disclosure, miscomputation, the application of improper principles or practices of
accounting, or otherwise, may be ratified, before or after judgment, by the Board of Directors, and
if so ratified, shall have the same force and effect as if the challenged action or inaction had
been originally duly authorized, and such ratification shall, to the maximum extent permitted by
law, be binding upon the Corporation and its stockholders and shall constitute a bar to any claim
or execution of any judgment in respect of such challenged action or inaction.
Section 19. EMERGENCY PROVISIONS. Notwithstanding any other provision in the Charter
or these bylaws, this section shall be operative during any emergency
resulting from an attack on
the United States or on a locality in which the Corporation conducts
its business or customarily holds meetings of its Board of Directors or its stockholders, or
during any nuclear or atomic disaster, or during the existence of any catastrophe, or other similar
emergency condition, as a result of which a quorum of the Board of Directors or a standing
committee of the Board of Directors cannot readily be convened for action (an Emergency). During
any Emergency, unless otherwise provided by the Board of Directors, (i) a meeting of the Board of
Directors or a committee may be called by any director or officer by any means feasible under the
circumstances; (ii) notice of any meeting of the Board of Directors during such an Emergency may be
given less than 24 hours prior to the meeting to as many directors and by such means as may be
feasible at the time, including publication, television or radio; and (iii) the number of directors
necessary to constitute a quorum shall be one-third of the entire Board of Directors or committee.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from
among its members an Executive Committee, an Audit Committee, a Compensation, Nominating and
Governance Committee (or such other formulation as the Board may deem necessary or desirable in its
sole discretion) 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.
Unless the statute or the Charter require otherwise, any action which these Bylaws require to be
approved by the Board of Directors may be approved by a duly authorized committee of the board.
Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner
as notice for special meetings of the Board of Directors. A majority of the members of the
committee shall constitute a quorum for the transaction of business at any meeting of the
committee. The act of a majority of the committee members present at a meeting at which a quorum
is present shall be the act of such committee. The Board of Directors may designate a chairman of
any committee, and such chairman or, in the absence of a chairman, any two members of any committee
(if there are at least two members of the committee) may fix the time and place, if any, and the
means of remote communication, if any, of its meeting unless the Board 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 provided that such other director meets the requirements for membership on
such Committee. 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 or other communications equipment if
all persons participating in the meeting can hear each other at the same time. Participation in a
meeting by these means shall constitute presence in person at the meeting.
Section 5. WRITTEN CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of a committee of the Board of Directors may be taken without
a meeting, if a consent in writing or by electronic transmission to such action is given by each
member of the committee and such written consent is filed in paper or electronic form with the
minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of Directors shall
have the power at any time to change the membership of any committee, to fill all vacancies, to
designate alternate members to replace any absent or disqualified member or to dissolve any such
committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a
president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of
the board, a chief executive officer, one or more vice presidents, a chief operating officer, a
chief financial officer, one or more assistant secretaries and one or more assistant treasurers.
In addition, the Board of Directors may from time to time elect such other officers with such
powers and duties as it shall deem necessary or desirable. The officers of the Corporation shall
be elected annually by the Board of Directors, except that the chief executive officer or president
may from time to time appoint one or more vice presidents, assistant secretaries and assistant
treasurers or other officers. Each officer shall hold office until his or her successor is elected
and qualifies or until his or her death, or his or her resignation or removal in the manner
hereinafter provided. Any two or more offices except president and vice president may be held by
the same person. Election of an officer or agent shall not of itself create contract rights
between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be
removed, with or without cause, by the Board of Directors if in its judgment the best interests of
the Corporation would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer of the Corporation may resign at
any time by giving written notice of his or her resignation to the Board of Directors, the chairman
of the board, the president or the secretary. Any resignation shall take effect immediately upon
its receipt or at such later time specified in the notice of resignation. The acceptance of a
resignation shall not be necessary to make it effective unless otherwise stated in the resignation.
Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.
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 and, in general,
shall perform all duties incident to the office of the chief executive officer and such other
duties as may be prescribed by the Board of Directors from time to time. The chief executive
officer may execute any deed, mortgage, bond, contract or other instrument, except in cases where
the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the Corporation or shall be required by law to be otherwise
executed.
Section 5. CHAIRMAN OF THE BOARD. The Board of Directors may 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 of Directors shall
perform such other duties as may be assigned to him or her by the Board of Directors.
Section 6. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief
operating officer. The chief operating officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer or, in the absence of a chief
executive officer, the president.
Section 7. CHIEF INVESTMENT OFFICER. The Board of Directors may designate a chief
investment officer. The chief investment officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer or, in the absence of a chief
executive officer, the president.
Section 8. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief
financial officer. The chief financial officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer or, in the absence of a chief
executive officer, the president.
Section 9. PRESIDENT. In the absence of a chief executive officer, the president
shall in general supervise and control all of the business and affairs of the Corporation. In the
absence of a designation of a chief operating officer by the Board of Directors, the president
shall be the chief operating officer. The president may execute any deed, mortgage, bond, contract
or other instrument, except in cases where the execution thereof shall be expressly delegated by
the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or
shall be required by law to be otherwise executed; and in general shall perform all duties incident
to the office of president and such other duties as may be prescribed by the Board of Directors
from time to time.
Section 10. VICE PRESIDENTS. In the absence of the president or in the event of a
vacancy in such office, the vice president (or in the event there be more than one vice president,
the vice presidents in the order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall perform the duties of the president and
when so acting shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be assigned to such vice
president by the president or by the Board of Directors. The Board of Directors may designate one
or more vice presidents as executive vice president, senior vice president or as vice president for
particular areas of responsibility.
Section 11. SECRETARY. The secretary shall: (a) keep the minutes of the proceedings
of the stockholders, the Board of Directors and committees of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of
the seal of the Corporation; (d) keep a register of the post office address
of each stockholder which shall be furnished to the secretary by such stockholder; (e) have
general charge of the stock transfer books of the Corporation; and (f) in general perform such
other duties as from time to time may be assigned to him by the chief executive officer, the
president or by the Board of Directors.
Section 12. TREASURER. The treasurer shall have the custody of the funds and
securities of the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. In the absence of a designation of a chief financial officer by the
Board of Directors, the treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the president and
Board of Directors, at the regular meetings of the Board of Directors or whenever it may so
require, an account of all his or her transactions as treasurer and of the financial condition of
the Corporation.
If required by the Board of Directors, the treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his or her office and for the restoration to the Corporation,
in case of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.
Section 13. 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 14. 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 shall be valid and binding upon the Board of
Directors and upon the Corporation when authorized or ratified by action of the Board of Directors
and executed by an authorized person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or agent of the Corporation in such manner as shall from time to time be
determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES; REQUIRED INFORMATION. The Board of Directors may determine
to issue certificated or uncertificated shares of stock and other securities of the Corporation.
In the event that the Corporation issues shares of stock represented by certificates, such
certificates shall be signed by the officers of the Corporation in the manner permitted by the MGCL
and contain the statements and information required by the MGCL. In the event that the Corporation
issues shares of stock without certificates, the Corporation shall provide to holders of such
shares a written statement of the information required by the MGCL to be included on stock
certificates for so long as the provision of such information to holders of uncertificated shares
is required by the MGCL.
Section 2. TRANSFERS OF SECURITIES. Upon surrender to the Corporation or the transfer
agent of the Corporation of a stock certificate duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation shall issue a new certificate to
the person entitled thereto, cancel the old certificate and record the transaction upon its books.
Upon surrender to the Corporation or the transfer agent of the Corporation of proper evidence of
succession, assignment or authority to transfer uncertificated stock, the Corporation shall deliver
to the new record holder a written statement of the information required by the MGCL to be included
on stock certificates 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 and all of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of Directors
may direct a new certificate to be issued in place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that
fact by the person claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, an officer designated by the Board of Directors may, in his or her
discretion and as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or the owners legal representative to advertise the same in such
manner as he shall require and/or to give bond, with sufficient surety, to the Corporation to
indemnify it against any loss or claim which may arise as a result of the issuance of a new
certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of Directors
may set, in advance, a record date for the purpose of determining stockholders entitled to notice
of or to vote at any meeting of stockholders or determining stockholders entitled to receive
payment of any dividend or the allotment of any other rights, or in order to make a determination
of stockholders for any other proper purpose. Such date, in any case, shall not be prior to the
close of business on the day the record date is fixed and shall be not more than 90 days and, in
the case of a meeting of stockholders, not less than ten days, before the date on which the meeting
or particular action requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not longer than 20 days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for at least ten days before the date of such
meeting.
If no record date is fixed and the stock transfer books are not closed for the determination
of stockholders, (a) the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of stockholders entitled to receive payment
of a dividend or an allotment of any other rights shall be the close of business on the day on
which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
If no record date is set within 20 days of a stockholders request for a special meeting, the
record date for determining stockholders entitled to request a special meeting shall be the date
the request is first signed and delivered to the secretary of the Corporation.
When a determination of stockholders entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall apply to any
adjournment thereof, except when (i) the determination has been made through the closing of
the transfer books and the stated period of closing has expired or (ii) the meeting is adjourned to
a date more than 120 days after the record date fixed for the original meeting, in either of which
case a new record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at
the office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares of each class held by
such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors may issue
fractional stock or provide for the issuance of scrip, all on such terms and under such conditions
as they may determine. Notwithstanding any other provision of the Charter or these Bylaws, the
Board of Directors may issue units consisting of different securities of the Corporation. Any
security issued in a unit shall have the same characteristics as any identical securities issued by
the Corporation, except that the Board of Directors may provide that for a specified period
securities of the Corporation issued in such unit may be transferred on the books of the
Corporation only in such unit.
Section 7. CERTIFICATION OF BENEFICIAL OWNERS. The Board of Directors may adopt
by resolution a procedure by which a stockholder of the Corporation 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 certify; 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 a certification which complies with the procedure adopted by the Board
of Directors in accordance with this Section, the person specified in the certification is, for the
purpose set forth in the certification, the holder of record of the specified stock in place of the
stockholder who makes the certification.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the fiscal year of the
Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the
Corporation may be authorized by the Board of Directors, subject to the provisions
of law and the Charter. 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.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter, the Board of Directors may from time to time adopt,
amend, revise or terminate any policy or policies with respect to investments by the Corporation as
it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall contain the name of the Corporation and the year of its incorporation
and the words Incorporated Maryland. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix
its seal to a document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word (SEAL) adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time, the Corporation
shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to
indemnification, shall pay or reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any individual who is a present or former director or officer of the Corporation
and who is made or threatened to be made a party to the proceeding by reason of his or her service
in that capacity or (b) any individual who, while a director of the Corporation and at the request
of the Corporation, serves or has served as a director, officer, partner or trustee of another
corporation, real estate investment trust, partnership, joint venture, trust, employee benefit plan
or other enterprise and who is made or threatened to be made a party to the proceeding by reason of
his or her service in that capacity. The Corporation may, with the approval of its Board of
Directors, provide such indemnification and advance for expenses to a
person who served a predecessor of the Corporation in any of the capacities described in (a)
or (b) above and to any employee or agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other
provision of the Bylaws or Charter inconsistent with this Article, shall apply to or affect in any
respect the applicability of the preceding paragraph with respect to any act or failure to act
which occurred prior to such amendment, repeal or adoption.
The indemnification and payment of expenses provided in these Bylaws shall not be deemed
exclusive of or limit in any way other rights to which any person seeking indemnification or
payment of expenses may be or may become entitled under any bylaw, regulation, insurance, agreement
or otherwise.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter or these Bylaws or
pursuant to applicable law, a waiver thereof in writing or by electronic transmission, delivered by
the person or persons entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at
nor the purpose of any meeting need be set forth in the waiver of notice, unless specifically
required by statute. The attendance of any person at any meeting shall constitute a waiver of
notice of such meeting, except where such person attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is not lawfully called
or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or repeal any provision
of these Bylaws and to make new Bylaws.