Exhibit 1.2
HC GOVERNMENT REALTY TRUST, INC.
AMENDED AND RESTATED BYLAWS
Adopted
as of March 13, 2019
ARTICLE I
OFFICES
Section
1.1 PRINCIPAL
OFFICE. The principal office of HC Government Realty Trust,
Inc. (the “Corporation”) in the
State of Maryland shall be located at such place as the Board of
Directors may designate.
Section
1.2 ADDITIONAL
OFFICES. The Corporation may have additional offices,
including a principal executive office, at such places as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section
2.1 PLACE. All
meetings of stockholders shall be held at the principal executive
office of the Corporation or at such other place as shall be set in
accordance with these Bylaws and stated in the notice of the
meeting.
Section
2.2 ANNUAL MEETING.
An annual meeting of stockholders for the election of directors and
the transaction of any business that properly comes before the
meeting shall be held on the date and at the time and place set by
the Board of Directors. Failure to hold an annual meeting shall not
invalidate the Corporation’s existence or affect any
otherwise valid acts of the Corporation.
Section
2.3 SPECIAL
MEETINGS.
(a) General.
Each of the chairman of the Board of Directors and Board of
Directors may call a special meeting of stockholders. Except as
provided in paragraph (b)(4) of this Section 2.3, a special meeting
of stockholders shall be held on the date and at the time and place
set by the chairman of the Board of Directors or Board of
Directors, whoever has called the meeting. Subject to paragraph
(b) of this Section
2.3, a special meeting of stockholders also shall be called
by the secretary of the Corporation to act on any matter that may
properly be considered at a meeting of stockholders upon the
written request of stockholders entitled to cast not less than a
majority of all the votes entitled to be cast on such matter at
such meeting.
(b) Stockholder-Requested
Special Meetings.
(1) Any
stockholder of record seeking to have stockholders request a
special meeting shall, by sending written notice to the secretary
(the “Record Date
Request Notice”) by registered mail, return receipt
requested, request the Board of Directors to fix a record date to
determine the stockholders entitled to request a special meeting
(the “Request Record
Date”). The Record Date Request Notice shall set forth
the purpose of the meeting and the matters proposed to be acted on
at it, shall be signed by one or more stockholders of record as of
the date of signature (or their agents duly authorized in a writing
accompanying the Record Date Request Notice), shall bear the date
of signature of each such stockholder (or such agent) and shall set
forth all information relating to each such stockholder, each
individual whom the stockholder proposes to nominate for election
or reelection as a director and each matter proposed to be acted on
at the meeting that would be required to be disclosed in connection
with the solicitation of proxies for the election of directors or
the election of each such individual, as applicable, in an election
contest (even if an election contest is not involved), or would
otherwise be required in connection with such a solicitation, in
each case pursuant to Maryland General Corporate Law
(“MGCL”) Sections 2-502 and
2-504(f). Upon receiving the Record Date Request Notice, the Board
of Directors may fix a Request Record Date. The Request Record Date
shall not precede and shall not be more than ten days after the
close of business on the date on which the resolution fixing the
Request Record Date is adopted by the Board of Directors. If the
Board of Directors, within ten days after the date on which a valid
Record Date Request Notice is received, fails to adopt a resolution
fixing the Request Record Date, the Request Record Date shall be
the close of business on the tenth day after the first date on
which a Record Date Request Notice is received by the
secretary.
(2) In
order for any stockholder to request a special meeting to act on
any matter that may properly be considered at a meeting of
stockholders, one or more written requests for a special meeting
(collectively, the “Special Meeting Request”)
signed by stockholders of record (or their agents duly authorized
in a writing accompanying the request) as of the Request Record
Date entitled to cast not less than a majority of all of the votes
entitled to be cast on such matter at such meeting (the
“Special Meeting
Percentage”) shall be delivered to the secretary. In
addition, the Special Meeting Request shall (a) set forth the
purpose of the meeting and the matters proposed to be acted on at
it (which shall be limited to those lawful matters set forth in the
Record Date Request Notice received by the secretary),
(b) bear the date of signature of each such stockholder (or
such agent) signing the Special Meeting Request, (c) set forth
(i) the name and address, as they appear in the
Corporation’s books, of each stockholder signing such request
(or on whose behalf the Special Meeting Request is signed),
(ii) the class, series and number of all shares of stock of
the Corporation which are owned (beneficially or of record) by each
such stockholder and (iii) the nominee holder for, and number
of, shares of stock of the Corporation owned beneficially but not
of record by such stockholder, (d) be sent to the secretary by
registered mail, return receipt requested, and (e) be received
by the secretary within 60 days after the Request Record Date. Any
requesting stockholder (or agent duly authorized in a writing
accompanying the revocation of the Special Meeting Request) may
revoke his, her or its request for a special meeting at any time by
written revocation delivered to the secretary.
(3) The
secretary shall inform the requesting stockholders of the
reasonably estimated cost of preparing and mailing or delivering
the notice of the meeting (including the Corporation’s proxy
materials). The secretary shall not be required to call a special
meeting upon stockholder request and such meeting shall not be held
unless, in addition to the documents required by paragraph
(b)(2) of this Section 2.3, the secretary
receives payment of such reasonably estimated cost prior to the
preparation and mailing or delivery of such notice of the
meeting.
(4) In
the case of any special meeting called by the secretary upon the
request of stockholders (a “Stockholder-Requested
Meeting”), such meeting shall be held at such place,
date and time as may be designated by the Board of Directors;
provided, however, that the
date of any Stockholder-Requested Meeting shall be not more than 90
days after the record date for such meeting (the
“Meeting Record
Date”); and provided
further that if the Board of Directors fails to designate,
within ten days after the date that a valid Special Meeting Request
is actually received by the secretary (the “Delivery Date”), a date
and time for a Stockholder-Requested Meeting, then such meeting
shall be held at 2:00 p.m., local time, on the 90th day after the
Meeting Record Date or, if such 90th day is not a
Business Day (as defined below), on the first preceding Business
Day; and provided further
that in the event that the Board of Directors fails to designate a
place for a Stockholder-Requested Meeting within ten days after the
Delivery Date, then such meeting shall be held at the principal
executive office of the Corporation. In fixing a date for a
Stockholder-Requested Meeting, the Board of Directors may consider
such factors as it deems relevant, including, without limitation,
the nature of the matters to be considered, the facts and
circumstances surrounding any request for the meeting and any plan
of the Board of Directors to call an annual meeting or a special
meeting. In the case of any Stockholder-Requested Meeting, if the
Board of Directors fails to fix a Meeting Record Date that is a
date within 30 days after the Delivery Date, then the close of
business on the 30th day after the
Delivery Date shall be the Meeting Record Date. The Board of
Directors may revoke the notice for any Stockholder-Requested
Meeting in the event that the requesting stockholders fail to
comply with the provisions of paragraph (b)(3) of this
Section
2.3.
(5) If
written revocations of the Special Meeting Request have been
delivered to the secretary and the result is that stockholders of
record (or their agents duly authorized in writing), as of the
Request Record Date, entitled to cast less than the Special Meeting
Percentage have delivered, and not revoked, requests for a special
meeting on the matter to the secretary: (i) if the notice of
meeting has not already been delivered, the secretary shall refrain
from delivering the notice of the meeting and send to all
requesting stockholders who have not revoked such requests written
notice of any revocation of a request for a special meeting on the
matter, or (ii) if the notice of meeting has been delivered
and if the secretary first sends to all requesting stockholders who
have not revoked requests for a special meeting on the matter
written notice of any revocation of a request for the special
meeting and written notice of the Corporation’s intention to
revoke the notice of the meeting or for the chairman of the meeting
to adjourn the meeting without action on the matter, (A) the
secretary may revoke the notice of the meeting at any time before
ten days before the commencement of the meeting or (B) the
chairman of the meeting may call the meeting to order and adjourn
the meeting without acting on the matter. Any request for a special
meeting received after a revocation by the secretary of a notice of
a meeting shall be considered a request for a new special
meeting.
(6) The
chairman of the Board of Directors or Board of Directors may
appoint regionally or nationally recognized independent inspectors
of elections to act as the agent of the Corporation for the purpose
of promptly performing a ministerial review of the validity of any
purported Special Meeting Request received by the secretary. For
the purpose of permitting the inspectors to perform such review, no
such purported Special Meeting Request shall be deemed to have been
received by the secretary until the earlier of (i) five
Business Days after actual receipt by the secretary of such
purported request and (ii) such date as the independent
inspectors certify to the Corporation that the valid requests
received by the secretary represent, as of the Request Record Date,
stockholders of record entitled to cast not less than the Special
Meeting Percentage. Nothing contained in this paragraph
(6) shall in any way be construed to suggest or imply that the
Corporation or any stockholder shall not be entitled to contest the
validity of any request, whether during or after such five Business
Day period, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any
litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
(7) For
purposes of these Bylaws, “Business Day” shall mean any
day other than a Saturday, a Sunday or a day on which banking
institutions in New York City are authorized or obligated by law or
executive order to close.
Section
2.4 NOTICE. Not
less than ten nor more than 90 days before each meeting of
stockholders, the secretary shall give to each stockholder entitled
to vote at such meeting and to each stockholder not entitled to
vote who is entitled to notice of the meeting notice in writing or
by electronic transmission stating the time and place of the
meeting and, in the case of a special meeting or as otherwise may
be required by any statute, the purpose for which the meeting is
called, by mail, by presenting it to such stockholder personally,
by leaving it at the stockholder’s residence or usual place
of business or by any other means permitted by Maryland law. If
mailed, such notice shall be deemed to be given when deposited in
the United States mail addressed to the stockholder at the
stockholder’s address as it appears on the records of the
Corporation, with postage thereon prepaid. If transmitted
electronically, such notice shall be deemed to be given when
transmitted to the stockholder by an electronic transmission to any
address or number of the stockholder at which the stockholder
receives electronic transmissions. The Corporation may give a
single notice to all stockholders who share an address, which
single notice shall be effective as to any stockholder at such
address, unless such stockholder objects to receiving such single
notice or revokes a prior consent to receiving such single notice.
Failure to give notice of any meeting to one or more stockholders,
or any irregularity in such notice, shall not affect the validity
of any meeting fixed in accordance with this Article II or the validity of
any proceedings at any such meeting.
Subject
to Section 2.11(a),
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 for such special meeting. The Corporation may
postpone or cancel a meeting of stockholders by making a public
announcement (as defined in Section 2.11(c)(2)) of such
postponement or cancellation prior to the meeting. Notice of the
date, time and place to which the meeting is postponed shall be
given not less than ten days prior to such date and otherwise in
the manner set forth in this section.
Section
2.5 ORGANIZATION AND
CONDUCT. Every meeting of stockholders shall be conducted by
an individual appointed by the Board of Directors to be chairman of
the meeting or, in the absence of such appointment or appointed
individual, by the chairman of the Board of Directors or, in the
case of a vacancy in the office or absence of the chairman of the
Board of Directors, by one of the following officers present at the
meeting in the following order: the vice chairman of the Board of
Directors, if there is one, the chief executive officer, the
president, the vice presidents in their order of rank and
seniority, the secretary or, in the absence of such officers, a
chairman chosen by the stockholders by the vote of a majority of
the votes cast by stockholders present in person or by proxy. The
secretary or, in the secretary’s absence, an assistant
secretary or, in the absence of both the secretary and assistant
secretaries, an individual appointed by the Board of Directors or,
in the absence of such appointment, an individual appointed by the
chairman of the meeting shall act as secretary. In the event that
the secretary presides at a meeting of stockholders, an assistant
secretary or, in the absence of all assistant secretaries, an
individual appointed by the Board of Directors or the chairman of
the meeting, shall record the minutes of the meeting. The order of
business and all other matters of procedure at any meeting of
stockholders shall be determined by the chairman of the meeting.
The chairman of the meeting may prescribe such rules, regulations
and procedures and take such action as, in the discretion of the
chairman and without any action by the stockholders, are
appropriate for the proper conduct of the meeting, including,
without limitation, (a) restricting admission to the time set
for the commencement of the meeting; (b) limiting attendance
at the meeting to stockholders of record of the Corporation, their
duly authorized proxies and other such individuals as the chairman
of the meeting may determine; (c) limiting participation at
the meeting on any matter to stockholders of record of the
Corporation entitled to vote on such matter, their duly authorized
proxies and other such individuals as the chairman of the meeting
may determine; (d) limiting the time allotted to questions or
comments; (e) determining when and for how long the polls
should be opened and when the polls should be closed;
(f) maintaining order and security at the meeting;
(g) removing any stockholder or any other individual who
refuses to comply with meeting procedures, rules or guidelines as
set forth by the chairman of the meeting; (h) concluding a
meeting or recessing or adjourning the meeting to a later date and
time and at a place announced at the meeting; and
(i) complying with any state and local laws and regulations
concerning safety and security. Unless otherwise determined by the
chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
Section
2.6 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 approval of any matter. If such quorum is not
established at any meeting of the stockholders, the chairman of the
meeting may adjourn the meeting sine die or from time to time, and
if 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 at which a quorum has been
established, may continue to transact business until adjournment,
notwithstanding the withdrawal from the meeting of enough
stockholders to leave fewer than would be required to establish a
quorum.
Section
2.7 VOTING. Unless
otherwise provided by statute or by the Charter, the affirmative
vote of 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. Unless otherwise provided by
statute or by the Charter, 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, without any right to
cumulative votes. 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
by statute or by the Charter, each outstanding share, regardless of
class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders. Voting on any question or in any
election may be viva voce unless the chairman of the meeting shall
order that voting be by ballot or otherwise.
Section
2.8 PROXIES. A
holder of record of shares of stock of the Corporation may cast
votes in person or by proxy executed by the stockholder or by the
stockholder’s duly authorized agent in any manner permitted
by law. Such proxy or evidence of authorization of such proxy shall
be filed with the secretary 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
2.9 VOTING OF STOCK BY
CERTAIN HOLDERS. Stock of the Corporation registered in the
name of a corporation, partnership, trust, limited liability
company or other entity, if entitled to be voted, may be voted by
the president or a vice president, general partner, trustee or
managing member thereof, as the case may be, or a proxy appointed
by any of the foregoing individuals, unless some other person who
has been appointed to vote such stock pursuant to a bylaw or a
resolution of the governing body of such corporation or other
entity or agreement of the partners of a partnership presents a
certified copy of such bylaw, resolution or agreement, in which
case such person may vote such stock. Any trustee or fiduciary may
vote stock registered in the name of such person in the capacity of
trustee or fiduciary, either in person or by proxy.
Shares
of stock of the Corporation directly or indirectly owned by the
Corporation shall not be voted at any meeting and shall not be
counted in determining the total number of outstanding shares
entitled to be voted at any given time, unless they are held by it
in a fiduciary capacity, in which case they may be voted and shall
be counted in determining the total number of outstanding shares at
any given time.
The
Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any
shares of stock registered in the name of the stockholder are held
for the account of a specified person other than the stockholder.
The resolution shall set forth the class of stockholders who may
make the certification, the purpose for which the certification may
be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record
date, the time after the record date within which the certification
must be received by the Corporation; and any other provisions with
respect to the procedure which the Board of Directors considers
necessary or desirable. Upon receipt by the Corporation of such
certification, the person specified in the certification shall be
regarded as, for the purposes set forth in the certification, the
holder of record of the specified stock in place of the stockholder
who makes the certification.
Section
2.10 INSPECTORS.
The Board of Directors or the chairman of the meeting may appoint,
before or at the meeting, one or more inspectors for the meeting
and any successor to the inspector. Except as otherwise provided by
the chairman of the meeting, the inspectors, if any, shall
(i) determine the number of shares of stock represented at the
meeting, in person or by proxy, and the validity and effect of
proxies, (ii) receive and tabulate all votes, ballots or
consents, (iii) report such tabulation to the chairman of the
meeting, (iv) hear and determine all challenges and questions
arising in connection with the right to vote, and (v) do such
acts as are proper to fairly conduct the election or vote. Each
such report shall be in writing and signed by the inspector or by a
majority of them if there is more than one inspector acting at such
meeting. If there is more than one inspector, the report of a
majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the
meeting and the results of the voting shall be prima facie evidence
thereof.
Section
2.11 ADVANCE NOTICE OF
STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER
PROPOSALS.
(a) Annual
Meetings of Stockholders.
(1) Nominations
of individuals for election to the Board of Directors and the
proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders (i) pursuant to
the Corporation’s notice of meeting, (ii) by or at the
direction of the Board of Directors or (iii) by any
stockholder of the Corporation who was a stockholder of record both
at the time of giving of notice by the stockholder as provided for
in paragraph (a) of this Section 2.11 and at the time of
the annual meeting, who is entitled to vote at the meeting in the
election of each individual so nominated or on any such other
business and who has complied with paragraph (a) of this
Section
2.11.
(2) For
any nomination or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 2.11, the stockholder
must have given timely notice thereof in writing to the secretary
of the Corporation and any such other business must otherwise be a
proper matter for action by the stockholders. To be timely, a
stockholder’s notice shall set forth all information required
under this Section
2.11 and shall be delivered to the secretary at the
principal executive office of the Corporation not earlier than the
150th day
nor later than 5:00 p.m., Eastern Time, on the 120th day prior to the
first anniversary of the date of the notice provided under
Section 2.4 hereof
for the preceding year’s annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced or delayed by more
than 30 days from the first anniversary of the date of the
preceding year’s annual meeting, in order for notice by the
stockholder to be timely, such notice must be so delivered not
earlier than the 150th day prior to the
date of such annual meeting and not later than 5:00 p.m., Eastern
Time, on the later of the 120th day prior to the
date of such annual meeting, as originally convened, or the tenth
day following the day on which public announcement, if any, of the
date of such meeting is first made. The public announcement, if
any, of a postponement or adjournment of an annual meeting shall
not commence a new time period for the giving of a
stockholder’s notice as described above.
(3) Such
stockholder’s notice shall set forth:
(i) as
to each individual whom the stockholder proposes to nominate for
election or reelection as a director (each, a “Proposed Nominee”), all
information relating to the Proposed Nominee that would be required
to be disclosed in connection with the solicitation of proxies for
the election of the Proposed Nominee as a director in an election
contest (even if an election contest is not involved), or would
otherwise be required in connection with such solicitation, in each
case pursuant to MGCL 2-502, 2-504, and 2-507 (including the
Proposed Nominee’s written consent to being named in the
proxy statement as a nominee and to serving as a director as
needed);
(ii) as
to any other business that the stockholder proposes to bring before
the meeting, a description of such business, the
stockholder’s reasons for proposing such business at the
meeting and any material interest in such business of such
stockholder or any Stockholder Associated Person (as defined
below), individually or in the aggregate, including any anticipated
benefit to the stockholder or the Stockholder Associated Person
therefrom;
(iii) as
to the stockholder giving the notice, any Proposed Nominee and any
Stockholder Associated Person,
(A) the
class, series and number of all shares of stock or other securities
of the Corporation or any affiliate thereof (each, a
“Company
Security” and, collectively, the “Company Securities”), if
any, which are owned (beneficially or of record) by such
stockholder, Proposed Nominee or Stockholder Associated Person, the
date on which each such Company Security was acquired and the
investment intent of such acquisition, and any short interest
(including any opportunity to profit or share in any benefit from
any decrease in the price of such stock or other security) in any
Company Securities of any such person,
(B) the
nominee holder for, and number of, any Company Securities owned
beneficially but not of record by such stockholder, Proposed
Nominee or Stockholder Associated Person,
(C) whether
and the extent to which such stockholder, Proposed Nominee or
Stockholder Associated Person, directly or indirectly (through
brokers, nominees or otherwise), is subject to, or during the last
six months has engaged in, any hedging, derivative or other
transaction or series of transactions or entered into any other
agreement, arrangement or understanding (including any short
interest, any borrowing or lending of securities or any proxy or
voting agreement), the effect or intent of which is to
(I) manage risk or benefit of changes in the price of Company
Securities or (II) increase or decrease the voting power of
such stockholder, Proposed Nominee or Stockholder Associated Person
in the Corporation or any affiliate thereof disproportionately to
such person’s economic interest in the Company Securities,
and
(D) any
substantial interest, direct or indirect (including, without
limitation, any existing or prospective commercial, business or
contractual relationship with the Corporation), by security
holdings or otherwise, of such stockholder, Proposed Nominee or
Stockholder Associated Person, in the Corporation or any affiliate
thereof, other than an interest arising from the ownership of
Company Securities where such stockholder, Proposed Nominee or
Stockholder Associated Person receives no extra or special benefit
not shared on a pro rata
basis by all other holders of the same class or
series.
(iv) as
to the stockholder giving the notice, any Stockholder Associated
Person with an interest or ownership referred to in clauses
(ii) or (iii) of this paragraph (a)(3) of this
Section 2.11 and
any Proposed Nominee,
(A) the
name and address of such stockholder, as they appear on the
Corporation’s stock ledger, and the current name and business
address, if different, of each such Stockholder Associated Person
and any Proposed Nominee and
(B) the
investment strategy or objective, if any, of such stockholder and
each such Stockholder Associated Person who is not an individual
and a copy of the prospectus, offering memorandum or similar
document, if any, provided to investors or potential investors in
such stockholder and each such Stockholder Associated
Person;
(v) the
name and address of any person who contacted or was contacted by
the stockholder giving the notice or any Stockholder Associated
Person about the Proposed Nominee or other business proposal prior
to the date of such stockholder’s notice; and
(vi) 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 stockholder’s
notice.
(4) Such
stockholder’s notice shall, with respect to any Proposed
Nominee, be accompanied by a certificate executed by the Proposed
Nominee (i) certifying that such Proposed Nominee (a) is
not, and will not become, a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation
in connection with service or action as a director that has not
been disclosed to the Corporation and (b) will serve as a
director of the Corporation if elected; and (ii) attaching a
completed Proposed Nominee questionnaire (which questionnaire shall
be provided by the Corporation, upon request, to the stockholder
providing the notice and shall include all information relating to
the Proposed Nominee required by the Corporation.
(5) Notwithstanding
anything in this paragraph (a) of this Section 2.11 to the contrary,
in the event that the number of directors to be elected to the
Board of Directors is increased, and there is no public
announcement of such action at least 130 days prior to the first
anniversary of the date of the notice provided pursuant
Section 2.4 hereof
for the preceding year’s annual meeting, a
stockholder’s notice required by paragraph (a) of this
Section 2.11 shall
also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be
delivered to the secretary at the principal executive office of the
Corporation not later than 5:00 p.m., Eastern Time, on the tenth
day following the day on which such public announcement, if any, is
first made by the Corporation.
(6) For
purposes of this Section
2.11, “Stockholder Associated Person” of any
stockholder shall mean (i) any person acting in concert
with such stockholder, (ii) any beneficial owner of shares of
stock of the Corporation owned of record or beneficially by such
stockholder (other than a stockholder that is a depositary) and
(iii) any person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under
common control with, such stockholder or such Stockholder
Associated Person.
(b) Special
Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation’s
notice of meeting. Nominations of individuals for election to the
Board of Directors may be made at a special meeting of stockholders
at which directors are to be elected only (i) by or at the
direction of the Board of Directors or (ii) provided that the
special meeting has been called in accordance with paragraph (a) of
Section 2.3 for the
purpose of electing directors, by any stockholder of the
Corporation who is a stockholder of record both at the time of
giving of notice provided for in this Section 2.11 and at the time of
the special meeting, who is entitled to vote at the meeting in the
election of each individual so nominated and who has complied with
the notice procedures set forth in this Section 2.11. In the event the
Corporation calls a special meeting of stockholders for the purpose
of electing one or more individuals to the Board of Directors, any
stockholder may nominate an individual or individuals (as the case
may be) for election as a director as specified in the
Corporation’s notice of meeting, if the stockholder’s
notice, containing the information required by paragraphs (a)(3)
and (4) of this Section 2.11, is delivered to
the secretary at the principal executive office of the Corporation
not earlier than the 120th day prior to such
special meeting and not later than 5:00 p.m., Eastern Time, on the
later of the 90th day prior to such
special meeting or the tenth day following the day on which public
announcement, if any, 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, if any, of a
postponement or adjournment of a special meeting shall not commence
a new time period for the giving of a stockholder’s notice as
described above.
(c) General.
(1) If information submitted pursuant to this Section 2.11 by any stockholder
proposing a nominee for election as a director or any proposal for
other business at a meeting of stockholders shall be inaccurate in
any material respect, such information may be deemed not to have
been provided in accordance with this Section 2.11. Any such
stockholder shall notify the Corporation of any inaccuracy or
change (within two Business Days of becoming aware of such
inaccuracy or change) in any such information. Upon written request
by the secretary or the Board of Directors, any such stockholder
shall provide, within five Business Days of delivery of such
request (or such other period as may be specified in such request),
(A) written verification, satisfactory, in the discretion of
the Board of Directors or any authorized officer of the
Corporation, to demonstrate the accuracy of any information
submitted by the stockholder pursuant to this Section 2.11, and (B) a
written update of any information (including, if requested by the
Corporation, written confirmation by such stockholder that it
continues to intend to bring such nomination or other business
proposal before the meeting) submitted by the stockholder pursuant
to this Section
2.11 as of an earlier date. If a stockholder fails to
provide such written verification or written update within such
period, the information as to which written verification or a
written update was requested may be deemed not to have been
provided in accordance with this Section 2.11.
(1) Only
such individuals who are nominated in accordance with this
Section 2.11 shall
be eligible for election by stockholders as directors, and only
such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with this
Section 2.11. The
chairman of the meeting shall have the power to determine whether a
nomination or any other business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance
with this Section
2.11.
(2) “Public
announcement” shall mean disclosure (A) in a press
release reported by the Dow Jones News Service, Associated Press,
Business Wire, PR Newswire or other widely circulated news or wire
service or (B) in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended or the requirements of
Regulation A under the Securities Act of 1933, as amended (the
“Securities
Act”).
(3) Notwithstanding
the foregoing provisions of this Section 2.11, a stockholder
shall also comply with all applicable requirements of MGCL and
other laws of the state and the rules and regulations thereunder
with respect to the matters set forth in this Section 2.11.
Notwithstanding the
foregoing, election of members of the Board of Directors by the
holders of shares of any class or series of stock will be subject
in all respects to the Charter and all of the terms and conditions
contained therein.
Section
2.12 STOCKHOLDERS’
CONSENT IN LIEU OF MEETING. Any action required or permitted
to be taken at any meeting of stockholders may be taken without a
meeting (a) if a unanimous consent setting forth the action is
given in writing or by electronic transmission by each stockholder
entitled to vote on the matter and filed with the minutes of
proceedings of the stockholders, (b) if the action is advised
by the Board of Directors and submitted to the stockholders for
approval, and a consent in writing or by electronic transmission of
stockholders entitled to cast not less than the minimum number of
votes that would be necessary to authorize or take the action at a
meeting of stockholders is delivered to the Corporation in
accordance with the MGCL, or any successor statute, or (c) in any
manner set forth in the terms of any class or series of preferred
stock of the Corporation. The Corporation shall give notice of any
action taken by less than unanimous consent to each stockholder not
later than ten days after the effective time of such
action.
Section
2.13 CONTROL SHARE
ACQUISITION ACT. Notwithstanding any other provision of the
Charter or these Bylaws, Title 3, Subtitle 7 of the MGCL
or any successor statute, shall not apply to any acquisition by any
person of shares of stock of the 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.
ARTICLE III
DIRECTORS
Section
3.1 GENERAL
POWERS. The business and affairs of the Corporation shall be
managed under the direction of its Board of Directors.
Section
3.2 NUMBER, TENURE AND
RESIGNATION. At any regular meeting or at any special
meeting called for that purpose, a majority of the entire Board of
Directors may establish, increase or decrease the number of
directors, provided that the number thereof shall never be less
than the minimum number required by the MGCL, nor more than 15, and
further provided that the tenure of office of a director shall not
be affected by any decrease in the number of directors. Any
director of the Corporation may resign at any time by delivering
his or her resignation to the Board of Directors, the chairman of
the Board of Directors or the secretary. Any resignation shall take
effect immediately upon its receipt or at such later time specified
in the resignation. The acceptance of a resignation shall not be
necessary to make it effective unless otherwise stated in the
resignation.
Section
3.3 ANNUAL AND REGULAR
MEETINGS. An annual meeting of the Board of Directors shall
be held immediately after and at the same place as the annual
meeting of stockholders, no notice other than this Bylaw being
necessary. In the event such meeting is not so held, the meeting
may be held at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the
Board of Directors. The Board of Directors may provide, by
resolution, the time and place for the holding of regular meetings
of the Board of Directors without other notice than such
resolution.
Section
3.4 SPECIAL
MEETINGS. Special meetings of the Board of Directors may be
called by or at the request of the chairman of the Board of
Directors or a majority of the directors then in office. The person
or persons authorized to call special meetings of the Board of
Directors may fix the time and place for any special meeting of the
Board of Directors called by them. The Board of Directors may
provide, by resolution, the time and place for the holding of
special meetings of the Board of Directors without other notice
than such resolution.
Section
3.5 NOTICE. Notice
of any special meeting of the Board of Directors shall be delivered
personally or by telephone, electronic mail, facsimile
transmission, courier or United States mail to each director at his
or her business or residence address. Notice by personal delivery,
telephone, electronic mail or facsimile transmission shall be given
at least 24 hours prior to the meeting. Notice by United States
mail shall be given at least three days prior to the meeting.
Notice by courier shall be given at least two days prior to the
meeting. Telephone notice shall be deemed to be given when the
director or his or her agent is personally given such notice in a
telephone call to which the director or his or her agent is a
party. Electronic mail notice shall be deemed to be given upon
transmission of the message to the electronic mail address given to
the Corporation by the director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of
the message to the number given to the Corporation by the director
and receipt of a completed answer-back indicating receipt. Notice
by United States mail shall be deemed to be given when deposited in
the United States mail properly addressed, with postage thereon
prepaid. Notice by courier shall be deemed to be given when
deposited with or delivered to a courier properly addressed.
Neither the business to be transacted at, nor the purpose of, any
annual, regular or special meeting of the Board of Directors need
be stated in the notice, unless specifically required by statute,
the Charter or these Bylaws.
Section
3.6 QUORUM. A
majority of the directors shall constitute a quorum for transaction
of business at any meeting of the Board of Directors, provided that, if less than a majority
of such directors is present at such meeting, a majority of the
directors present may adjourn the meeting from time to time without
further notice, and provided
further that if, pursuant to applicable law, the Charter or
these Bylaws, the vote of a majority or other percentage of a
particular group of directors is required for action, a quorum must
also include a majority or such other percentage of such
group.
The
directors present at a meeting which has been duly called and at
which a quorum has been established may continue to transact
business until adjournment, notwithstanding the withdrawal from the
meeting of enough directors to leave fewer than required to
establish a quorum.
Section
3.7 VOTING. The
action of a majority of the directors present at a meeting at which
a quorum is present shall be the action of the Board of Directors,
unless the concurrence of a greater proportion is required for such
action by applicable law, the Charter or these Bylaws. If enough
directors have withdrawn from a meeting to leave fewer than
required to establish a quorum, but the meeting is not adjourned,
the action of the majority of that number of directors necessary to
constitute a quorum at such meeting shall be the action of the
Board of Directors, unless the concurrence of a greater proportion
is required for such action by applicable law, the Charter or these
Bylaws.
Section
3.8 ORGANIZATION.
At each meeting of the Board of Directors, the chairman of the
Board of Directors or, in the absence of the chairman, the vice
chairman of the Board of Directors, if any, shall act as chairman
of the meeting. In the absence of both the chairman and vice
chairman of the Board of Directors, the chief executive officer or,
in the absence of the chief executive officer, the president or, in
the absence of the president, a director chosen by a majority of
the directors present shall act as chairman of the meeting. The
secretary or, in his or her absence, an assistant secretary of the
Corporation or, in the absence of the secretary and all assistant
secretaries, an individual appointed by the chairman of the
meeting, shall act as secretary of the meeting.
Section
3.9 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
3.10 CONSENT BY DIRECTORS
WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without
a meeting, if a consent in writing or by electronic transmission to
such action is given by each director and is filed with the minutes
of proceedings of the Board of Directors.
Section
3.11 VACANCIES. If,
for any reason, any or all the directors cease to be directors,
such event shall not terminate the Corporation or affect these
Bylaws or the powers of the remaining directors hereunder. Except
as may be provided by the Board of Directors in setting the terms
of any class or series of preferred stock or the Charter, any
vacancy on the Board of Directors, whether resulting from a
director ceasing to be a director or from an increase in the number
of directors constituting the Board of Directors, may be filled
only by a majority of the remaining directors, even if the
remaining directors do not constitute a quorum. Any director
elected to fill a vacancy shall serve for the remainder of the full
term of the directorship in which the vacancy occurred and until a
successor is elected and qualifies or until his or her earlier
death, resignation or removal.
Section
3.12 COMPENSATION. Directors shall
not receive any stated salary for their services as directors but,
by resolution of the Board of Directors, may receive compensation
per year and/or per meeting and/or per visit to real property or
other facilities owned or leased by the Corporation and for any
service or activity they performed or engaged in as directors.
Directors may be reimbursed for expenses of attendance, if any, at
each annual, regular or special meeting of the Board of Directors
or of any committee thereof and for their expenses, if any, in
connection with each property visit and any other service or
activity they perform or engage in as directors; but nothing herein
contained shall be construed to preclude any directors from serving
the Corporation in any other capacity and receiving compensation
therefor. Notwithstanding the foregoing, a director who is also an
officer of the Corporation shall not receive additional
compensation for such service as a director.
Section
3.13 RELIANCE. Each
director and officer of the Corporation shall, in the performance
of his or her duties with respect to the Corporation, be entitled
to rely on any information, opinion, report or statement, including
any financial statement or other financial data, prepared or
presented by an officer or employee of the Corporation whom the
director or officer reasonably believes to be reliable and
competent in the matters presented, by a lawyer, certified public
accountant or other person, as to a matter which the director or
officer reasonably believes to be within the person’s
professional or expert competence, or, with respect to a director,
by a committee of the Board of Directors on which the director does
not serve, as to a matter within its designated authority, if the
director reasonably believes the committee to merit
confidence.
Section
3.14 RATIFICATION.
The Board of Directors or the stockholders may ratify and make
binding on the Corporation any action or inaction by the
Corporation or its officers to the extent that the Board of
Directors or the stockholders could have originally authorized the
matter. Moreover, any action or inaction questioned in any
stockholders’ derivative proceeding or any other proceeding
on the ground of lack of authority, defective or irregular
execution, adverse interest of a director, officer or stockholder,
non-disclosure, miscomputation, the application of improper
principles or practices of accounting or otherwise, may be
ratified, before or after judgment, by the Board of Directors or by
the stockholders, and if so ratified, shall have the same force and
effect as if the questioned action or inaction had been originally
duly authorized, and such ratification shall be binding upon the
Corporation and its stockholders and shall constitute a bar to any
claim or execution of any judgment in respect of such questioned
action or inaction.
Section
3.15 CERTAIN RIGHTS OF
DIRECTORS AND OFFICERS. A director or officer of the
Corporation shall have no responsibility to devote his or her full
time to the affairs of the Corporation. Any director or officer, in
his or her personal capacity or in a capacity as an affiliate,
employee or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to, in
addition to or in competition with those of or relating to the
Corporation.
Section
3.16 EMERGENCY
PROVISIONS. Notwithstanding any other provision in the
Charter or these Bylaws, this Section 3.16 shall apply during
the existence of any catastrophe, or other similar emergency
condition, as a result of which a quorum of the Board of Directors
under Article III
of these Bylaws cannot readily be obtained (an “Emergency”). During any
Emergency, unless otherwise provided by the Board of Directors,
(i) a meeting of the Board of Directors or a committee thereof
may be called by any director or officer by any means feasible
under the circumstances; (ii) notice of any meeting of the
Board of Directors during such an Emergency may be given less than
24 hours prior to the meeting to as many directors and by such
means as may be feasible at the time, including publication,
television or radio; and (iii) the number of directors
necessary to constitute a quorum shall be one-third of the entire
Board of Directors.
ARTICLE IV
COMMITTEES
Section
4.1 NUMBER, TENURE AND
QUALIFICATIONS. The Board of Directors may appoint from
among its members committees, composed of one or more directors, to
serve at the pleasure of the Board of Directors.
Section
4.2 POWERS. The
Board of Directors may delegate to committees appointed under
Section 4.1 any of
the powers of the Board of Directors, except as prohibited by law.
Except as may be otherwise provided by the Board of Directors or
prohibited by the charter of such committee, any committee may
delegate some or all of its power and authority to one or more
subcommittees, composed of one or more directors, as the committee
deems appropriate in its sole and absolute discretion.
Section
4.3 MEETINGS.
Notice of committee meetings shall be given in the same manner as
notice for special meetings of the Board of Directors. A majority
of the members of the committee shall constitute a quorum for the
transaction of business at any meeting of the committee. The act of
a majority of the committee members present at a meeting shall be
the act of such committee. The Board of Directors may designate a
chairman of any committee, and such chairman or, in the absence of
a chairman, any two members of any committee (if there are at least
two members of the committee) may fix the time and place of its
meeting unless the Board shall otherwise provide.
Section
4.4 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
4.5 CONSENT BY COMMITTEES
WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of a committee of the Board of Directors may
be taken without a meeting, if a consent in writing or by
electronic transmission to such action is given by each member of
the committee and is filed with the minutes of proceedings of such
committee.
Section
4.6 VACANCIES.
Subject to the provisions hereof, the Board of Directors shall have
the power at any time to change the membership of any committee, to
fill any vacancy, to designate an alternate member to replace any
absent or disqualified member or to dissolve any such
committee.
ARTICLE V
OFFICERS
Section
5.1 GENERAL
PROVISIONS. The officers of the Corporation shall include a
president, a secretary and a treasurer and may include a chairman
of the Board of Directors, a vice chairman of the Board of
Directors, a chief executive officer, one or more vice presidents,
a chief operating officer, a chief financial officer, one or more
assistant secretaries and one or more assistant treasurers. In
addition, the Board of Directors may from time to time elect such
other officers with such powers and duties as it shall deem
necessary or desirable. The officers of the Corporation shall be
elected annually by the Board of Directors, except that the chief
executive officer or president may from time to time appoint one or
more vice presidents, assistant secretaries and assistant
treasurers or other officers. Each officer shall serve until his or
her successor is elected and qualifies or until his or her death,
or his or her resignation or removal in the manner hereinafter
provided. Any two or more offices except president and vice
president may be held by the same person. Election of an officer or
agent shall not of itself create contract rights between the
Corporation and such officer or agent.
Section
5.2 REMOVAL AND
RESIGNATION. Any officer or agent of the Corporation may be
removed, with or without cause, by the Board of Directors if in its
judgment the best interests of the Corporation would be served
thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed. Any officer of
the Corporation may resign at any time by delivering his or her
resignation to the Board of Directors, the chairman of the Board of
Directors, or the secretary. Any resignation shall take effect
immediately upon its receipt or at such later time specified in the
resignation. The acceptance of a resignation shall not be necessary
to make it effective unless otherwise stated in the resignation.
Such resignation shall be without prejudice to the contract rights,
if any, of the Corporation.
Section
5.3 VACANCIES. A
vacancy in any office may be filled by the Board of Directors for
the balance of the term.
Section
5.4 CHIEF EXECUTIVE
OFFICER. The Board of Directors may designate a chief
executive officer. In the absence of such designation, the chairman
of the Board of Directors shall be the chief executive officer of
the Corporation. The chief executive officer shall have general
responsibility for implementation of the policies of the
Corporation, as determined by the Board of Directors, and for the
management of the business and affairs of the Corporation. He or
she may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to
some other officer or agent of the Corporation or shall be required
by law to be otherwise executed; and in general shall perform all
duties incident to the office of chief executive officer and such
other duties as may be prescribed by the Board of Directors from
time to time.
Section
5.5 CHIEF OPERATING
OFFICER. The Board of Directors may designate a chief
operating officer. The chief operating officer shall have the
responsibilities and duties as determined by the Board of Directors
or the chief executive officer.
Section
5.6 CHIEF FINANCIAL
OFFICER. The Board of Directors may designate a chief
financial officer. The chief financial officer shall have the
responsibilities and duties as determined by the Board of Directors
or the chief executive officer.
Section
5.7 CHAIRMAN OF THE
BOARD. The Board of Directors may designate from among its
members a chairman of the Board of Directors, who shall not, solely
by reason of these Bylaws, be an officer of the Corporation. The
Board of Directors may designate the chairman of the Board of
Directors as an executive or non-executive chairman. The chairman
of the Board of Directors shall preside over the meetings of the
Board of Directors and over those meetings of the stockholders as
may be required pursuant to the provisions of Article II, Section 5
of these Bylaws. The chairman of the Board of Directors shall
perform such other duties as may be assigned to him or her by these
Bylaws or the Board of Directors.
Section
5.8 PRESIDENT. In
the absence of a chief executive officer, the president shall in
general supervise and control all of the business and affairs of
the Corporation. In the absence of a designation of a chief
operating officer by the Board of Directors, the president shall be
the chief operating officer. He or she may execute any deed,
mortgage, bond, contract or other instrument, except in cases where
the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the
Corporation or shall be required by law to be otherwise executed;
and in general shall perform all duties incident to the office of
president and such other duties as may be prescribed by the Board
of Directors from time to time.
Section
5.9 VICE
PRESIDENTS. In the absence of the president or in the event
of a vacancy in such office, the vice president (or in the event
there be more than one vice president, the vice presidents in the
order designated at the time of their election or, in the absence
of any designation, then in the order of their election) shall
perform the duties of the president and when so acting shall have
all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time
may be assigned to such vice president by the chief executive
officer, the president or the Board of Directors. The Board of
Directors may designate one or more vice presidents as executive
vice president, senior vice president, or vice president for
particular areas of responsibility.
Section
5.10 SECRETARY. The
secretary shall (a) keep the minutes of the proceedings of the
stockholders, the Board of Directors and committees of the Board of
Directors in one or more books provided for that purpose;
(b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be
custodian of the corporate records and of the seal of the
Corporation; (d) keep a register of the post office address of
each stockholder which shall be furnished to the secretary by such
stockholder; (e) have general charge of the stock transfer
books of the Corporation; and (f) in general perform such
other duties as from time to time may be assigned to him or her by
the chief executive officer, the president or the Board of
Directors.
Section
5.11 TREASURER. The
treasurer shall (a) have the custody of the funds and securities of
the Corporation, (b) keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation, (c)
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, (d) disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, (e) render to the president
and the 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, and (f) in general, perform such other duties as from
time to time may be assigned to him or her by the chief executive
officer, the president or the Board of Directors. 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.
Section
5.12 ASSISTANT SECRETARIES
AND ASSISTANT TREASURERS. The assistant secretaries and
assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer,
respectively, or by the chief executive officer, the president or
the Board of Directors.
Section
5.13 COMPENSATION.
The compensation of the officers shall be fixed from time to time
by or under the authority of the Board of Directors and no officer
shall be prevented from receiving such compensation by reason of
the fact that he or she is also a director.
ARTICLE VI
CONTRACTS,
CHECKS AND DEPOSITS
Section
6.1 CONTRACTS. The
Board of Directors may authorize any officer or agent to enter into
any contract or to execute and deliver any instrument in the name
of and on behalf of the Corporation and such authority may be
general or confined to specific instances. Any agreement, deed,
mortgage, lease or other document shall be valid and binding upon
the Corporation when duly authorized or ratified by action of the
Board of Directors and executed by an authorized
person.
Section
6.2 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
6.3 DEPOSITS. All
funds of the Corporation not otherwise employed shall be deposited
or invested from time to time to the credit of the Corporation as
the Board of Directors, the chief executive officer, the president,
the chief financial officer or any other officer designated by the
Board of Directors may determine.
ARTICLE VII
STOCK
Section
7.1 CERTIFICATES.
Except as may be otherwise provided by the Board of Directors,
stockholders of the Corporation are not entitled to certificates
representing the shares of stock held by them. In the event that
the Corporation issues shares of stock represented by certificates,
such certificates shall be in such form as prescribed by the Board
of Directors or a duly authorized officer, shall contain the
statements and information required by the MGCL and shall be signed
by the officers of the Corporation in any manner permitted by the
MGCL. In the event that the Corporation issues shares of stock
without certificates, to the extent then required by the MGCL, the
Corporation shall provide to the record holders of such shares a
written statement of the information required by the MGCL to be
included on stock certificates. There shall be no differences in
the rights and obligations of stockholders based on whether or not
their shares are represented by certificates.
Section
7.2 TRANSFERS. All
transfers of shares of stock shall be made on the books of the
Corporation, by the holder of the shares, in person or by his or
her attorney, in such manner as the Board of Directors or any
officer of the Corporation may prescribe and, if such shares are
certificated, upon surrender of certificates duly endorsed. The
issuance of a new certificate upon the transfer of certificated
shares is subject to the determination of the Board of Directors
that such shares shall no longer be represented by certificates.
Upon the transfer of any uncertificated shares, to the extent then
required by the MGCL, the Corporation shall provide to the record
holders of such shares a written statement of the information
required by the MGCL to be included on stock
certificates.
The
Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or
interest in such share or on the part of any other person, whether
or not it shall have express or other notice thereof, except as
otherwise expressly provided by the laws of the State of
Maryland.
Notwithstanding the
foregoing, transfers of shares of any class or series of stock will
be subject in all respects to the Charter and all of the terms and
conditions contained therein.
Section
7.3 REPLACEMENT
CERTIFICATE. Any officer of the Corporation may direct a new
certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation
alleged to have been lost, destroyed, stolen or mutilated, upon the
making of an affidavit of that fact by the person claiming the
certificate to be lost, destroyed, stolen or mutilated;
provided, however, if such
shares have ceased to be certificated, no new certificate shall be
issued unless requested in writing by such stockholder and the
Board of Directors has determined that such certificates may be
issued. Unless otherwise determined by an officer of the
Corporation, the owner of such lost, destroyed, stolen or mutilated
certificate or certificates, or his or her legal representative,
shall be required, as a condition precedent to the issuance of a
new certificate or certificates, to give the Corporation a bond in
such sums as it may direct as indemnity against any claim that may
be made against the Corporation.
Section
7.4 FIXING OF RECORD
DATE. The Board of Directors may set, in advance, a record
date for the purpose of determining stockholders entitled to notice
of or to vote at any meeting of stockholders or determining
stockholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination
of stockholders for any other proper purpose. Such date, in any
case, shall not be prior to the close of business on the day the
record date is fixed and shall be not more than 90 days and, in the
case of a meeting of stockholders, not less than ten days, before
the date on which the meeting or particular action requiring such
determination of stockholders of record is to be held or
taken.
When a
record date for the determination of stockholders entitled to
notice of and to vote at any meeting of stockholders has been set
as provided in this section, such record date shall continue to
apply to the meeting if adjourned or postponed, except if the
meeting is adjourned or postponed to a date more than 120 days
after the record date originally fixed for the meeting, in which
case a new record date for such meeting shall be determined as set
forth herein.
Section
7.5 STOCK LEDGER.
The Corporation shall maintain at its principal office or at the
office of its counsel, accountants or transfer agent, an original
or duplicate stock ledger containing the name and address of each
stockholder and the number of shares of each class held by such
stockholder.
Section
7.6 FRACTIONAL STOCK;
ISSUANCE OF UNITS. The Board of Directors may authorize the
Corporation to issue fractional shares of stock or authorize the
issuance of scrip, all on such terms and under such conditions as
it may determine. Notwithstanding any other provision of the
Charter or these Bylaws, the Board of Directors may authorize the
Corporation to 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.
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
9.1 AUTHORIZATION.
Dividends and other distributions upon the stock of the Corporation
may be authorized by the Board of Directors and declared by the
Corporation, 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
9.2 CONTINGENCIES.
Before payment of any dividends or other distributions, there may
be set aside out of any assets of the Corporation available for
dividends or other distributions such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think
proper as a reserve fund for contingencies, for equalizing
dividends, for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors
shall determine, and the Board of Directors may modify or abolish
any such reserve.
ARTICLE X
INVESTMENT
POLICY
Subject
to the provisions of the Charter, 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
11.1 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
11.2 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 or
witness in the proceeding by reason of his or her service in that
capacity or (b) any individual who, while a director or
officer of the Corporation and at the request of the Corporation,
serves or has served as a director, officer, partner, trustee,
member or manager of another corporation, real estate investment
trust, limited liability company, partnership, joint venture,
trust, employee benefit plan or other enterprise and who is made or
threatened to be made a party to or witness in the proceeding by
reason of his or her service in that capacity. The rights to
indemnification and advance of expenses provided by the Charter and
these Bylaws shall vest immediately upon election of a director or
officer. The Corporation may, with the approval of its Board of
Directors, provide such indemnification and advance for expenses to
an individual who served a predecessor of the Corporation in any of
the capacities described in (a) or (b) above and to any
employee or agent of the Corporation or a predecessor of the
Corporation. The indemnification and payment or reimbursement of
expenses provided in these Bylaws shall not be deemed exclusive of
or limit in any way other rights to which any person seeking
indemnification or payment or reimbursement of expenses may be or
may become entitled under any bylaw, resolution, insurance,
agreement or otherwise.
Neither
the amendment nor repeal of this Article XII, nor the adoption
or amendment of any other provision of the Charter or these Bylaws
inconsistent with this Article XII, 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.
ARTICLE XIII
WAIVER
OF NOTICE
Whenever any notice
of a meeting 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, given by the person or
persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at nor the purpose of
any meeting need be set forth in the waiver of notice of such
meeting, unless specifically required by statute. The attendance of
any person at any meeting shall constitute a waiver of notice of
such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on
the ground that the meeting has not been lawfully called or
convened.
ARTICLE XIV
AMENDMENT
OF BYLAWS
The
Board of Directors shall have the exclusive power to adopt, alter
or repeal any provision of these Bylaws and to make new
Bylaws.