AMENDED
AND RESTATED BYLAWS
OF
WHITESTONE
REIT
(the
“
Trust
”)
ARTICLE
I.
OFFICES
Section
1.
Principal
Office
. The principal office of the Trust in the State of
Maryland shall be located at such place as the Board of Trustees may
designate.
Section
2.
Additional
Offices
. The Trust may have additional offices, including a
principal executive office, at such places as the Board of Trustees may from
time to time determine or the business of the Trust may require.
ARTICLE
II.
MEETINGS
OF SHAREHOLDERS
Section
1.
Place
. All
meetings of shareholders shall be at the principal executive office of the Trust
or at such other place as shall be set by the Board of Trustees and stated in
the notice of the meeting.
Section
2.
Annual
Meeting
. An annual meeting of the shareholders for the
election of Trustees and the transaction of any business within the powers of
the Trust shall be held on a date and at the time set by the Trustees. Failure
to hold an annual meeting does not invalidate the Trust’s existence or affect
any otherwise valid acts of the Trust.
Section
3.
Special
Meetings
.
(a)
General
. The Chairman of the
Board of Trustees, chief executive officer, president or Board of Trustees may
call a special meeting of the shareholders. Subject to
Section 3(b)
, a
special meeting of shareholders shall also be called by the chief executive
officer or at the direction of the chief executive officer to act on any matter
that may properly be considered at a meeting of shareholders upon the written
request of the shareholders entitled to cast not less than a majority of all the
votes entitled to be cast on such matter at such meeting.
(b)
Shareholder Requested Special
Meetings
.
(1)
Any
shareholder of record seeking to have shareholders request a special meeting
shall, by sending written notice to the chief executive officer (the “
Record Date
Request Notice
”) by registered mail, return receipt requested, request
the Board of Trustees to fix a record date to determine the shareholders
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 shareholders 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 shareholder (or such agent) and shall set
forth all information relating to each such shareholder and each matter proposed
to be acted on at the meeting that would be required to be disclosed in
connection with the solicitations of proxies for the election of trustees in an
election contest (even if an election contest is not involved), or would
otherwise be required in connection with such a solicitation, in each case
pursuant to Regulation 14A (or any successor provision) under the Securities
Exchange Act of 1934, as amended (the “
Exchange
Act
”). Upon receiving the Record Date Request Notice, the Board of
Trustees 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 Trustees. If the Board of Trustees, within ten days after the date on
which a valid Record Date Request Notice is received, fails to adopt a
resolution fixing the Request Record Date, the Request Record Date shall be the
close of business on the tenth day after the first date on which the Record Date
Request Notice is received by the chief executive officer.
(2)
In order
for any shareholder to request a special meeting to act on any matter that may
properly be considered at a meeting of shareholders, one or more written
requests for a special meeting (collectively, the “
Special Meeting
Request
”) signed by shareholders 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 chief executive officer. 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
chief executive officer), (b) bear the date of signature of each such
shareholder (or such agent) signing the Special Meeting Request, (c) set forth
the name and address, as they appear in the Trust’s books, of each shareholder
signing such request (or on whose behalf the Special Meeting Request is signed),
the class, series and number of all shares of beneficial interest of the Trust
which are owned (beneficially or of record) by such shareholder, and the nominee
holder for, and number of, shares owned beneficially but not of record by such
shareholder, (d) be sent to the secretary by registered mail, return receipt
requested, and (e) be received by the chief executive officer within 60 days
after the Request Record Date. Any requesting shareholder (or agent duly
authorized in a writing accompanying the revocation or the Special Meeting
Request) may revoke his, her or its request for a special meeting at any time by
written revocation delivered to the chief executive officer.
(3)
The chief
executive officer shall inform the requesting shareholders of the reasonably
estimated cost of preparing and mailing the notice of meeting (including the
Trust’s proxy materials and legal costs). The chief executive officer shall not
be required to call a special meeting upon shareholder request and such meeting
shall not be held unless, in addition to the documents required by
Section 3(b)(2)
, the
chief executive officer receives payment of such reasonably estimated cost prior
to the preparation and mailing of any notice of the meeting.
(4)
In the
case of any special meeting called by the chief executive officer upon the
request of shareholders (a “
Shareholder
Requested Meeting
”), such meeting shall be held at such place, date and
time as may be designated by the Board of Trustees; provided, however, that the
date of any Shareholder 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 Trustees fails to
designate, within ten days after the date that a valid Special Meeting Request
is actually received by the chief executive officer (the “
Delivery
Date
”), a date and time for a Shareholder Requested Meeting, then such
meeting shall be held 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 Trustees
fails to designate a place for a Shareholder Requested Meeting within ten days
after the Delivery Date, then such meeting shall be held at the principal
executive office of the Trust. In fixing a date for any special meeting, the
Chairman of the Board of Trustees, chief executive officer, president or Board
of Trustees may consider such factors as he, she or it deems relevant,
including, without limitation, the nature of the matters to be considered, the
facts and circumstances surrounding any request for the meeting and any plan of
the Board of Trustees to call an annual meeting or a special meeting. In the
case of any Shareholder Requested Meeting, if the Board of Trustees 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 Trustees may revoke the notice for any
Shareholder Requested Meeting in the event that the requesting shareholders fail
to comply with the provisions of
Section
3(b)(3)
.
(5)
If
written revocations of the Special Meeting Request have been delivered to the
chief executive officer and the result is that shareholders 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 to the chief executive officer: (i) if the notice
of meeting has not already been delivered, the chief executive officer shall
refrain from delivering the notice of the meeting and send to all requesting
shareholders 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
delivered and if the chief executive officer first sends to all requesting
shareholders who have not revoked requests for a special meeting on a matter
written notice of any revocation of a request for the special meeting and
written notice of the Trust’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 chief executive officer 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 chief executive officer of a notice of a meeting shall be
considered a request for a new special meeting.
(6)
The
Chairman of the Board of Trustees, chief executive officer, president or Board
of Trustees may appoint regionally or nationally recognized independent
inspectors of elections to act as the agent of the Trust for the purpose of
promptly performing a ministerial review of the validity of any purported
Special Meeting Request received by the chief executive officer. For the purpose
of permitting the inspectors to perform such review, no such purported Special
Meeting Request shall be deemed to have been delivered to the chief executive
officer until the earlier of (i) five Business Days after receipt by the chief
executive officer of such purported request and (ii) such date as the
independent inspectors certify to the Trust that the valid requests received by
the chief executive officer represent, as of the Request Record Date,
shareholders of record entitled to cast not less than the Special Meeting
Percentage. Nothing contained in this
Section 3(b)(6)
shall
in any way be construed to suggest or imply that the Trust or any shareholder
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 the State of Maryland are authorized or obligated by law
or executive order to close.
Section
4.
Notice
. Except
as provided otherwise in
Section 3
of this
Article II, not less than ten nor more than 90 days before each meeting of
shareholders, the secretary shall give to each shareholder entitled to vote at
such meeting and to each shareholder 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 shareholder personally, by leaving it
at the shareholder’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 shareholder at the
shareholder’s address as it appears on the records of the Trust, with postage
thereon prepaid. If transmitted electronically, such notice shall be
deemed to be given when transmitted to the shareholder by an electronic
transmission to any address or number of the shareholder at which the
shareholder receives electronic transmissions. A single notice to all
shareholders who share an address shall be effective as to any shareholder at
such address who consents to such notice or after having been notified of the
Trust’s intent to give a single notice fails to object in writing to such single
notice within 60 days. Failure to give notice of any meeting to one
or more shareholders, 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 12(a)
of this
Article II, any business of the Trust may be transacted at an annual meeting of
shareholders 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 shareholders except as specifically
designated in the notice. The Trust may postpone or cancel a meeting
of shareholders by making a “public announcement” (as defined in Section
12(c)(3)) of such postponement or cancellation prior to the
meeting. Notice of the date 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
5.
Organization
And Conduct
. Every meeting of the shareholders shall be
conducted by the chief executive officer or in the absence of the chief
executive officer, the Board of Trustees may appoint an acting chairman. The
secretary, or in the secretary’s absence, an acting secretary appointed by the
chief executive officer, shall record the minutes of the meeting. The order of
business and all other matters of procedure at any meeting of shareholders 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 shareholders, 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 shareholders of record of
the Trust, 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 shareholders of record of the Trust 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 by participants; (e) determining when the polls should be opened and
closed; (f) maintaining order and security at the meeting; (g) removing any
shareholder 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 shareholders shall not be
required to be held in accordance with the rules of parliamentary
procedure.
Section
6.
Quorum
. At
any meeting of shareholders, the presence in person or by proxy of shareholders
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 Trust’s Declaration of Trust, as amended
from time to time (the “
Declaration of
Trust
”) for the vote necessary for the adoption of any measure. If,
however, such quorum shall not be present at any meeting of the shareholders,
the chairman of the meeting may 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 shareholders present either in
person or by proxy, at a meeting which has been duly called and at which a
quorum was established, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section
7.
Voting
. A
plurality of all the votes cast at a meeting of shareholders duly called and at
which a quorum is present shall be sufficient to elect a
Trustee. Each share may be voted for as many individuals as there are
Trustees to be elected and for whose election the share is entitled to be voted.
A majority of the votes cast at a meeting of shareholders 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 Declaration of Trust. Unless otherwise
provided by statute or by the Declaration of Trust, each outstanding share of
beneficial interest, regardless of class, shall be entitled to one vote on each
matter submitted to a vote at a meeting of shareholders. 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.
Section
8.
Proxies
. A
shareholder may cast the votes entitled to be cast by the shares of beneficial
interest owned of record by the shareholder in person or by proxy executed by
the shareholder or by the shareholder’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 Trust 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
Shares By Certain Holders
. Shares of beneficial interest of
the Trust registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or a proxy
appointed by any of the foregoing individuals, unless some other person who has
been appointed to vote such shares 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 shares. Any trustee or other
fiduciary may vote shares of beneficial interest registered in his or her
capacity name in his or her as such fiduciary, either in person or by
proxy.
Shares of beneficial interest of the
Trust 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 Trustees may adopt by
resolution a procedure by which a shareholder may certify in writing to the
Trust that any shares of beneficial interest registered in the name of the
shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders 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 Trust; and any other
provisions with respect to the procedure which the Board of Trustees 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 shareholder of record of the specified shares of beneficial
interest in place of the shareholder who makes the certification.
Section
10.
Inspectors
. The
Board of Trustees or the chair of the meeting may appoint, before or at the
meeting, one or more inspectors for the meeting and any successor thereto. The
inspectors, if any, shall (i) determine the number of shares of beneficial
interest 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 chair 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 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
11.
Reports
To Shareholders
. The President or some other executive officer
designated by the chief executive officer shall prepare annually a full and
correct statement of the affairs of the Trust, which shall include a balance
sheet and a financial statement of operations for the preceding fiscal
year. The statement of affairs shall be submitted at the annual
meeting of the shareholders and, within 20 days after the annual meeting of
shareholders, placed on file at the principal office of the Trust.
Section
12.
Nominations
and Proposals By Shareholders
.
(a)
Annual Meetings of
Shareholders
.
(1)
Nominations
of individuals for election to the Board of Trustees and the proposal of other
business to be considered by the shareholders may be made at an annual meeting
of shareholders (i) pursuant to the Trust’s notice of meeting, (ii) by or at the
direction of the Board of Trustees or (iii) by any shareholder of the Trust who
was a shareholder of record both at the time of giving of notice by the
shareholder provided for in this
Section 12(a)
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 this
Section
12(a)
.
(2)
For
nominations or other business to be properly brought before an annual meeting by
a shareholder pursuant to clause (iii) of paragraph (a)(1) of this
Section 12
, the
shareholder must have given timely notice thereof in writing to the secretary of
the Trust and such other business must otherwise be a proper matter for action
by the shareholders. To be timely, a shareholder’s notice shall set forth all
information required under this
Section 12
and shall
be delivered to the secretary at the principal executive office of the Trust not
earlier than the 120th day nor later than 5:00 p.m., Central Time, on the 90th
day prior to the first anniversary of the date of the proxy statement 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 preceding year’s annual meeting, notice by the
shareholder to be timely must be so delivered not earlier than the 120th day
prior to the date of such annual meeting and not later than 5:00 p.m., Central
Time, on the later of the 90th day prior to the date of such annual meeting or
the tenth 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 shareholder’s notice as described above.
Such shareholder’s notice shall set
forth:
(i)
as to
each individual whom the shareholder proposes to nominate for election or
reelection that meets the criteria of serving as a trustee as set forth in
Section 3, Article III, as a Trustee (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 Trustee in an election contest (even if an
election contest is not involved), or would otherwise be required in connection
with such solicitation, in each case pursuant to Regulation 14A (or any
successor provision) under the Exchange Act and the rules thereunder (including
the Proposed Nominee’s written consent to being named in the proxy statement as
a nominee and to serving as a Trustee if elected);
(ii)
as to any
business that the shareholder proposes to bring before the meeting, a
description of such business, the shareholder’s reasons for proposing such
business at the meeting and any material interest in such business of such
shareholder or any Shareholder Associated Person (as defined below),
individually or in the aggregate, including any anticipated benefit to the
shareholder or the Shareholder Associated Person therefrom;
(iii)
as to the
shareholder giving the notice, any Proposed Nominee and any Shareholder
Associated Person,
(A)
the
class, series and number of all shares of stock or other securities of the Trust
or any affiliate thereof (collectively, the “
Company
Securities
”), if any, which are owned (beneficially or of record) by such
shareholder, Proposed Nominee or Shareholder 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 shareholder, Proposed Nominee or Shareholder Associated
Person,
(C)
whether
and the extent to which such shareholder, Proposed Nominee or Shareholder
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 (x) Company Securities or (y) any security of any entity
that was listed in the Peer Group in the Stock Performance Graph in the most
recent annual report to security holders of the Trust (a “
Peer Group
Company
”) for such shareholder, Proposed Nominee or Shareholder
Associated Person or (II) increase or decrease the voting power of such
shareholder, Proposed Nominee or Shareholder Associated Person in the Trust or
any affiliate thereof (or, as applicable, in any Peer Group Company)
disproportionately to such person’s economic interest in the Company Securities
(or, as applicable, in any Peer Group Company);
(D)
any
substantial interest, direct or indirect (including, without limitation, any
existing or prospective commercial, business or contractual relationship with
the Trust), by security holdings or otherwise, of such shareholder, Proposed
Nominee or Shareholder Associated Person, in the Trust or any affiliate thereof,
other than an interest arising from the ownership of Company Securities where
such shareholder, Proposed Nominee or Shareholder 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
shareholder giving the notice, any Shareholder Associated Person with an
interest or ownership referred to in clauses (ii) or (iii) of this paragraph (3)
of this Section 12(a) and any Proposed Nominee,
(A)
the name
and address of such shareholder, as they appear on the Trust’s stock ledger, and
the current name and business address, if different, of each such Shareholder
Associated Person and any Proposed Nominee and
(B)
the
investment strategy or objective, if any, of such shareholder and each such
Shareholder 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 shareholder, each such Shareholder
Associated Person and any Proposed Nominee; and
(v)
to the
extent known by the shareholder giving the notice, the name and address of any
other shareholder supporting the nominee for election or reelection as a Trustee
or the proposal of other business on the date of such shareholder’s
notice.
(3)
Notwithstanding
anything in this subsection (a) of this
Section 12
to the
contrary, in the event that the number of Trustees to be elected to the Board of
Trustees is increased, and there is no public announcement of such action at
least 100 days prior to the first anniversary of the date of the proxy statement
for the preceding year’s annual meeting, a shareholder’s notice required by this
Section 12(a)
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the chief
executive officer at the principal executive office of the Trust not later than
5:00 p.m., Central Time, on the tenth day following the day on which such public
announcement is first made by the Trust.
(4)
For
purposes of this
Section 12
, “
Shareholder
Associated Person
” of any shareholder shall mean (i) any person
indirectly acting in concert with, such shareholder, (ii) any beneficial owner
of shares beneficial interest of the Trust owned of record or beneficially by
such shareholder (other than a shareholder that is a depository) 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 shareholder
or Shareholder Associated Person.
(b)
Special Meetings of
Shareholders
. Only such business shall be conducted at a
special meeting of shareholders as shall have been brought before the meeting
pursuant to the Trust’s notice of meeting. Nominations of individuals for
election to the Board of Trustees may be made at a special meeting of
shareholders at which Trustees are to be elected only (i) by or at the direction
of the Board of Trustees or (ii) provided that the special meeting has been
called in accordance with Section 3 of this Article II for the purpose of
electing Trustees, by any shareholder of the Trust who is a shareholder of
record both at the time of giving of notice provided for in this
Section 12(b)
and at
the time of the special meeting, who is entitled to vote at the meeting in the
election of each individual so nominated and who has complied with the notice
procedures set forth in this
Section 12(b)
. In the
event the Trust calls a special meeting of shareholders for the
purpose of electing one or more individuals to the Board of Trustees, any such
shareholder may nominate an individual or individuals (as the case may be) for
election as a trustee as specified in the Trust’s notice of meeting, if the
shareholder’s notice containing the information required by paragraph (2) of
this
Section 12
shall be delivered to the secretary at the principal executive office of the
Trust not earlier than the 120th day prior to such special meeting and not later
than 5:00 p.m., Central Time, on the later of the 90th day prior to such special
meeting or the tenth day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Trustees 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 shareholder’s notice as described above.
(c)
General
.
(1)
If
information submitted pursuant to this Section 12 by any shareholder proposing a
nominee for election as a Trustee or any proposal for other business at a
meeting of shareholders shall be inaccurate in any material respect, such
information may be deemed not to have been provided in accordance with this
Section 12. Any such shareholder shall notify the Trust 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 chief executive officer or the Board of Trustees, any such shareholder
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 Trustees or any officer of the
Trust authorized by the chief executive officer, to demonstrate the accuracy of
any information submitted by the shareholder pursuant to this
Section 12
and (B) a
written update of any information submitted by the shareholder pursuant to this
Section 12 as of an earlier date. If a shareholder fails to provide such written
verification or written update within such period, the information as to which
written verification or a written update was requested may be deemed not to have
been provided in accordance with this
Section
12
.
(2)
Only such
individuals who are nominated in accordance with this
Section 12
shall be
eligible for election by shareholders by trustees, and only such business shall
be conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with this
Section 12
. 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
12
.
(3)
“
Public
announcement
” shall mean disclosure (i) 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 (ii) in a document publicly
filed by the Trust with the Securities and Exchange Commission pursuant to the
Exchange Act.
(4)
Notwithstanding
the foregoing provisions of this
Section 12
, a
shareholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this
Section 12
. Nothing
in this Section 12 shall be deemed to affect any right of a shareholder to
request inclusion of a proposal in, nor the right of the Trust to omit a
proposal from, the Trust’s proxy statement pursuant to Rule 14a-8 (or any
successor provision) under the Exchange Act. Nothing in this Section
12 shall require disclosure of revocable proxies received by the shareholder or
Shareholder Associated Person pursuant to a solicitation of proxies after the
filing of an effective Schedule 14A under Section 14(a) of the Exchange
Act.
ARTICLE
III.
TRUSTEES
Section
1.
General
Powers
. The business and affairs of the Trust shall be managed under the
direction of its Board of Trustees.
Section
2.
Number
and Tenure.
At any regular meeting or at any special meeting called for
that purpose, a majority of the entire Board of Trustees may establish, increase
or decrease the number of Trustees, provided that the number thereof shall never
be less than one, nor more than 15, and further provided that the tenure of
office of a Trustee shall not be affected by any decrease in the number of
Trustees.
Section
3.
Qualifications
.
To qualify for nomination or election as a Trustee, an individual, at the time
of nomination must:
(a)
have
substantial expertise, experience or relationships relevant to the business of
the Trust, which may include:
(1)
commercial
real estate experience,
(2)
an
in-depth knowledge of and working experience in finance or
marketing,
(3)
capital
markets or public company experience,
(4)
university
teaching experience in a Master of Business Administration or similar
program,
(5)
a
bachelor’s degree from an accredited university or college in the United States
or the equivalent degree from an equivalent institution of higher learning in
another country,
(6)
experience
as a chief executive officer, chief operating officer or chief financial officer
of a public or private company, or
(7)
public or
private board experience,
(b)
not have
been convicted of a felony or sanctioned or fined for a securities law violation
of any nature, and
(c)
possess
such other characteristics as deemed necessary by the Nominating and Corporate
Governance Committee and set forth in its selection criteria for Board of
Trustees.
The Nominating and Corporate Governance
Committee in its sole discretion, shall determine whether a nominee satisfies
the foregoing qualifications. The Nominating and Corporate Governance
Committee shall also seek to recommend nominees to the Board of Trustees who
have a diversity of experience, gender, race, ethnicity, and age. Any individual
who does not satisfy the qualifications set forth under this Section shall not
be eligible for nomination or election as a Trustee.
Section
4.
Annual
and Regular Meetings
. An annual meeting of the Board of Trustees shall be
held immediately after and at the same place as the annual meeting of
shareholders, 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 Trustees. The Board of Trustees may provide, by resolution, the
time and place for the holding of regular meetings of the Board of Trustees
without other notice than such resolution.
Section
5.
Special
Meetings
. Special meetings of the Board of Trustees 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 Trustees then in office. The person or persons
authorized to call special meetings of the Board of Trustees may fix any place
as the place for holding any special meeting of the Board of Trustees called by
them. The Board of Trustees may provide, by resolution, the time and place for
the holding of special meetings of the Board of Trustees without other notice
than such resolution.
Section
6.
Notice
.
Notice of any special meeting of the Board of Trustees shall be delivered
personally or by telephone, electronic mail, facsimile transmission, United
States mail or courier to each trustee 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 trustee or his or her
agent is personally given such notice in a telephone call to which the trustee
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 Trust by the trustee. Facsimile transmission notice shall be deemed to be
given upon completion of the transmission of the message to the number given to
the Trust by the trustee 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 Trustees
need be stated in the notice, unless specifically required by statute or these
Bylaws.
Section
7.
Quorum
. A
majority of the Trustees shall constitute a quorum for transaction of business
at any meeting of the Board of Trustees, provided that, if less than a majority
of such Trustees are present at said meeting, a majority of the
Trustees present may adjourn the meeting from time to time without further
notice, and provided further that if, pursuant to applicable law, the
Declaration of Trust or these Bylaws, the vote of a majority or other percentage
of a particular group of Trustees is required for action, a quorum must also
include a majority of such group.
The Trustees present at a meeting which
has been duly called and at which a quorum was established may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
Trustees to leave less than a quorum.
Section
8.
Voting
. The
action of a majority of the Trustees present at a meeting at which a quorum is
present shall be the action of the Board of Trustees, unless the concurrence of
a greater proportion is required for such action by applicable law, the
Declaration of Trust or these Bylaws. If enough Trustees have withdrawn from a
meeting to leave less than a quorum but the meeting is not adjourned, the action
of the majority of that number of Trustees necessary to constitute a quorum at
such meeting shall be the action of the Board of Trustees, unless the
concurrence of a greater proportion is required for such action by applicable
law, the Declaration of Trust or these Bylaws.
Section
9.
Organization
. At
each meeting of the Board of Trustees, the chairman of the board or, in the
absence of the chairman, the vice chairman of the board, if any, shall act as
chairman of the meeting. In the absence of both the chairman 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 trustee
chosen by a majority of the Trustees present, shall act as chairman of the
meeting. The secretary or, in his or her absence, an assistant secretary of the
Trust, 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
10.
Telephone
Meetings
. Trustees may participate in a meeting by means of a
conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation
in a meeting by these means shall constitute presence in person at the
meeting.
Section
11.
Consent
By Trustees Without A Meeting
. Any action required or
permitted to be taken at any meeting of the Board of Trustees may be taken
without a meeting, if a consent in writing or by electronic transmission to such
action is given by each trustee and is filed with the minutes of proceedings of
the Board of Trustees.
Section
12.
Vacancies
. If
for any reason any or all the Trustees cease to be Trustees, such event shall
not terminate the Trust or affect these Bylaws or the powers of the remaining
Trustees hereunder. Except as may be provided by the Board of Trustees in
setting the terms of any class or series of preferred shares of beneficial
interest, any vacancy on the Board of Trustees may be filled only by a majority
of the remaining Trustees, even if the remaining Trustees do not constitute a
quorum. Any trustee elected to fill a vacancy shall serve for the
remainder of the full term of the trusteeship in which the vacancy occurred and
until a successor is elected and qualifies.
Section
13.
Compensation;
Financial Assistance
. Trustees shall not receive any stated salary for
their services as Trustees but, by resolution of the Trustees, may receive
compensation per year and/or per meeting and/or per visit to real property or
other facilities owned or leased by the Trust and for any service or activity
they performed or engaged in as Trustees. Trustees may be reimbursed for
expenses of attendance, if any, at each annual, regular or special meeting of
the Trustees 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 Trustees; but nothing herein contained shall be
construed to preclude any Trustees from serving the Trust in any other capacity
and receiving compensation therefor.
Section
14.
Removal
Of Trustees
. The shareholders may, at any time, remove any
Trustee in the manner provided in the Declaration of Trust.
Section
15.
Reliance
. Each
Trustee and officer of the Trust shall, in the performance of his or her duties
with respect to the Trust, 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 Trust whom the Trustee 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 Trustee or officer reasonably believes to be within the
person’s professional or expert competence, or, with respect to a Trustee, by a
committee of the Board of Trustees on which the Trustee does not serve, as to a
matter within its designated authority, if the Trustee reasonably believes the
committee to merit confidence.
Section
16.
Ratification
. The
Board of Trustees or the shareholders may ratify and make binding on the Trust
any action or inaction by the Trust or its officers to the extent that the Board
of Trustees or the shareholders could have originally authorized the
matter. Moreover, any action or inaction questioned in any
shareholders’ derivative proceeding or any other proceeding on the ground of
lack of authority, defective or irregular execution, adverse interest of a
Trustee, officer or shareholder, 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 Trustees or by the
shareholders, 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 Trust and its shareholders and shall
constitute a bar to any claim or execution of any judgment in respect of such
questioned action or inaction.
Section
17.
Certain
Rights Of Trustees, Officers, Employees and Agents
. The
Trustees shall have no responsibility to devote their full time to the affairs
of the Trust. Any trustee or officer, employee or agent of the Trust, 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 Trust.
Section
18.
Emergency
Provisions
. Notwithstanding any other provision in the
Declaration of Trust or these Bylaws, this Section 18 shall apply during the
existence of any catastrophe, or other similar emergency condition, as a result
of which a quorum of the Board of Trustees under Article III of these Bylaws
cannot readily be obtained (an “
Emergency
”). During
any Emergency, unless otherwise provided by the Board of Trustees, (i) a meeting
of the Board of Trustees or a committee thereof may be called by any Trustee by
any means feasible under the circumstances; (ii) notice of any meeting of the
Board of Trustees during such an Emergency may be given less than 24 hours prior
to the meeting to as many Trustees and by such means as may be feasible at the
time, including publication, television or radio, and (iii) the number of
Trustees necessary to constitute a quorum shall be one-third of the entire Board
of Trustees.
ARTICLE
IV.
COMMITTEES
Section
1.
Number,
Tenure And Qualifications
. The Board of Trustees may appoint
from among its members an Executive Committee, an Audit Committee, a
Compensation Committee, a Nominating and Corporate Governance Committee and
other committees, composed of one or more Trustees, to serve at the pleasure of
the Board of Trustees.
Section
2.
Powers
. The
Board of Trustees may delegate to committees appointed under
Section 1
of this
Article any of the powers of the Board of Trustees.
Section
3.
Meetings
. Notice
of committee meetings shall be given in the same manner as notice for special
meetings of the Board of Trustees. 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 Trustees may designate a
chairman of any committee, and such chairman or, in the absence of a chairman,
any two members of any committee (if there are at least two members of the
committee) may fix the time and place of its meeting unless the Board shall
otherwise provide. In the absence of any member of any such committee, the
members thereof present at any meeting, whether or not they constitute a quorum,
may appoint another Trustee to act in the place of such absent member. Each
committee shall keep minutes of its proceedings.
Section
4.
Telephone
Meetings
. Members of a committee of the Board of Trustees may
participate in a meeting by means of a conference telephone or other
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means shall
constitute presence in person at the meeting.
Section
5.
Consent
By Committees Without A Meeting
. Any action required or
permitted to be taken at any meeting of a committee of the Board of Trustees 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
6.
Vacancies
. Subject
to the provisions hereof, the Board of Trustees shall have the power at any time
to change the membership of any committee, to fill any vacancy, to designate an
alternate member to replace any absent or disqualified member or to dissolve any
such committee.
ARTICLE
V.
OFFICERS
Section
1.
General
Provisions
. The officers of the Trust 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
Trustees may from time to time elect such other officers with such powers and
duties as they shall deem necessary or desirable. The officers of the Trust,
once appointed or elected by the Board of Trustees, shall be elected annually by
the Board of Trustees, 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, and shall remain in 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 Trust and such officer or agent.
Section
2.
Removal
And Resignation
. Any officer or agent of the Trust may be
removed, with or without cause, by the Board of Trustees if in its judgment the
best interests of the Trust 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 Trust may resign at any time by delivering his or her resignation
to the Board of Trustees, 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 Trust.
Section
3.
Vacancies
. A
vacancy in any office may be filled by the Board of Trustees for the balance of
the term.
Section
4.
Chief
Executive Officer
. The Board of Trustees 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 Trust. The chief executive officer
shall have general responsibility for implementation of the policies of the
Trust, as determined by the Board of Trustees, and for the management of the
business and affairs of the Trust. 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 Trustees or by these Bylaws to some
other officer or agent of the Trust 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 Trustees from time to time.
Section
5.
Chief
Operating Officer
. The chief executive officer may recommend
or designate a chief operating officer for approval by the majority of the Board
of Trustees. The chief operating officer shall have the responsibilities and
duties as determined by the chief executive officer.
Section
6.
Chief
Financial Officer
. The chief executive officer may recommend
or designate a chief financial officer for approval by the majority of the Board
of Trustees. The chief financial officer shall have the responsibilities and
duties as determined by the chief executive officer.
Section
7.
Chairman
Of The Board
. The Chairman of the Board of Trustees as designated by the
Board of Trustees will remain if and until the Board of Trustees unanimously
designates another Chairman of the Board of Trustees. The Chairman of the Board
of Trustees shall preside over the meetings of the Board of Trustees and of the
shareholders at which he or she shall be present. The Chairman of the Board of
Trustees shall perform such other duties as may be assigned to him or her by the
Board of Trustees.
Section
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 Trust. In the
absence of a designation of a chief operating officer by the chief executive
officer, the president shall also be the chief operating officer. At the
direction of the chief executive 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 Trustees or by
these Bylaws to some other officer or agent of the Trust 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 Trustees from time to time.
Section
9.
Vice
Presidents
. In the absence of the president, chief executive
officer and chief operating officer, 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 be expressly designated by the chief executive
officer to 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 chief executive officer may
designate one or more vice presidents as executive vice president, senior vice
president, or as vice president for particular areas of
responsibility.
Section
10.
Secretary
. The
secretary at the direction of the chief executive officer shall (a) keep the
minutes of the proceedings of the shareholders, the Board of Trustees and
committees of the Board of Trustees 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 trust
records and of the seal of the Trust; (d) keep a register of the post office
address of each shareholder which shall be furnished to the secretary by such
shareholder; (e) have general charge of the share transfer books of the Trust;
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
Trustees.
Section
11.
Treasurer
. The
treasurer shall have the custody of the funds and securities of the Trust and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Trust and shall deposit all moneys and other valuable effects
in the name and to the credit of the Trust in such depositories as may be
designated by the Board of Trustees. In the absence of a designation of a chief
financial officer by the Board of Trustees, the treasurer shall be the chief
financial officer of the Trust.
The treasurer shall disburse the funds
of the Trust as may be ordered by the chief executive officer, taking proper
vouchers for such disbursements, and shall render to the president and Board of
Trustees, at the regular meetings of the Board of Trustees or whenever it may so
require, an account of all his or her transactions as treasurer and of the
financial condition of the Trust.
Section
12.
Assistant
Secretaries And Assistant Treasurers
. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Board of Trustees. The assistant treasurers shall, if required
by the Board of Trustees, 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 Trustees.
Section
13.
Compensation
. The
compensation of the officers shall be fixed from time to time by or under the
authority of the Board of Trustees and no officer shall be prevented from
receiving such compensation by reason of the fact that he or she is also a
Trustee.
ARTICLE
VI.
CONTRACTS,
LOANS, CHECKS AND DEPOSITS
Section
1.
Contracts
. The
chief executive officer as authorized by the Trustees, 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 Trust 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 Trust when duly authorized or
ratified by action of the Board of Trustees 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
Trust shall be signed by such officer or agent of the Trust in such manner as
shall from time to time be determined by the chief executive officer as
authorized by the Board of Trustees.
Section
3.
Deposits
.
All funds of the Trust not otherwise employed shall be deposited or invested
from time to time to the credit of the Trust as the Board of Trustees or the
chief executive officer, or any other officer designated by the chief executive
officer or the Board of Trustees may determine.
ARTICLE
VII.
SHARES
Section
1.
Certificates
. Except
as may be otherwise provided by the Board of Trustees, shareholders of the Trust
are not entitled to certificates evidencing the shares of beneficial interest
held by them. In the event that the Trust issues shares of beneficial
interest evidenced by certificates, such certificates shall be in such form as
prescribed by the Board of Trustees or a duly authorized officer, shall contain
the statements and information required by the Maryland REIT Law and shall be
signed by the officers of the Trust in the manner permitted by the Maryland REIT
Law. In the event that the Trust issues shares of beneficial interest
without certificates, to the extent then required by the Maryland REIT Law, the
Trust shall provide to the record holders of such shares a written statement of
the information required by the Maryland REIT Law to be included on share
certificates. There shall be no differences in the rights and
obligations of shareholders based on whether or not their shares are evidenced
by certificates.
Section
2.
Transfers
. All
transfers of shares of stock shall be made on the books of the Trust, by the
holder of the shares, in person or by his or her attorney, in such manner as the
Board of Trustees or the chief executive officer of the Trust 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 Trustees or
the chief executive officer that such shares shall no longer be evidenced by
certificates. Upon the transfer of uncertificated shares, to the
extent then required by the Maryland REIT Law, the Trust shall provide to record
holders of such shares a written statement of the information required by the
Maryland REIT Law to be included on share certificates.
The Trust shall be entitled to treat
the holder of record of any share or shares of beneficial interest 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 or series of shares of beneficial interest will
be subject in all respects to the Declaration of Trust and all of the terms and
conditions contained therein.
Section
3.
Replacement
Certificate
. The chief executive officer or any officer
designated from time to time by the chief executive officer may direct a new
certificate to be issued in place of any certificate previously issued by the
Trust alleged to have been lost, stolen, destroyed or mutilated upon the making
of an affidavit of that fact by the person claiming the certificate to be lost,
stolen, destroyed or mutilated; provided, however, if such shares have ceased to
be certificated, no new certificate shall be issued unless requested in writing
by such shareholder and the Board of Trustees has determined that such
certificates may be issued. Unless otherwise determined by an officer
of the Trust, 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 Trust a bond in such sums as it may direct as indemnity against any
claim that may be made against the Trust.
Section
4.
Closing
Of Transfer Books Or Fixing Of Record Date
. The Board of
Trustees may set, in advance, a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
determining shareholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
shareholders 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 shareholders, not less
than ten days, before the date on which the meeting or particular action
requiring such determination of shareholders of record is to be held or
taken.
When a record date for the
determination of shareholders entitled to notice of and to vote at any meeting
of shareholders 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 to a date more than 120 days or postponed to a date more
than 90 days after the record date originally fixed for the meeting, in which
case a new record date for such meeting may be determined as set forth
herein.
Section
5.
Share
Ledger
. The Trust 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 shareholder and
the number of shares of each class held by such shareholder.
Section
6.
Fractional
Shares; Issuance Of Units
. The Board of Trustees may issue
fractional shares 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 Declaration of Trust or these Bylaws, the Board of Trustees may issue
units consisting of different securities of the Trust. Any security issued in a
unit shall have the same characteristics as any identical securities issued by
the Trust, except that the Board of Trustees may provide that for a specified
period securities of the Trust issued in such unit may be transferred on the
books of the Trust only in such unit.
ARTICLE
VIII.
ACCOUNTING
YEAR
The Board of Trustees shall have the
power, from time to time, to fix the fiscal year of the Trust by a duly adopted
resolution.
ARTICLE
IX.
DISTRIBUTIONS
Section
1.
Authorization
. Dividends
and other distributions upon the shares of beneficial interest of the Trust may
be authorized by the Board of Trustees, subject to the provisions of law and the
Declaration of Trust. Dividends and other distributions may be paid
in cash, property, shares of beneficial interest of the Trust, or operating
partnership units subject to the provisions of law and the Declaration of
Trust.
Section
2.
Contingencies
. Before
payment of any dividends or other distributions, there may be set aside out of
any assets of the Trust available for dividends or other distributions such sum
or sums as the Board of Trustees 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 Trust or for such
other purpose as the Board of Trustees shall determine, and the Board of
Trustees may modify or abolish any such reserve.
ARTICLE
X.
INVESTMENT
POLICY
Subject to the provisions of the
Declaration of Trust, the Board of Trustees may from time to time adopt, amend,
revise or terminate any policy or policies with respect to investments by the
Trust as it shall deem appropriate in its sole discretion.
ARTICLE
XI.
SEAL
Section
1.
Seal
. The
Trustees may authorize the adoption of a seal by the Trust. The seal
shall contain the name of the Trust and the year of its formation and the words
“Formed in Maryland.” The Board of Trustees may authorize one or more duplicate
seals and provide for the custody thereof.
Section
2.
Affixing
Seal
. Whenever the Trust 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
Trust.
ARTICLE
XII.
WAIVER
OF NOTICE
Whenever any notice is required to be
given pursuant to the Declaration of Trust or these Bylaws or pursuant to
applicable law, a waiver thereof in writing or by electronic transmission, given
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at nor the purpose of any meeting need be
set forth in the waiver of notice, unless specifically required by statute. The
attendance of any person at any meeting shall constitute a waiver of notice of
such meeting, except where such person attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened.
ARTICLE
XIII.
INDEMNIFICATION
AND ADVANCE OF EXPENSES
To the maximum extent permitted by
Maryland law in effect from time to time, the Trust 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
Trustee or officer of the Trust 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 Trustee or officer of the Trust and at the request of
the Trust, serves or has served as a trustee, 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 rights to indemnification and advance of expenses provided by the
Declaration of Trust and these Bylaws shall vest immediately upon election of a
Trustee or officer. The Trust may, with the approval of its Board of Trustees,
provide such indemnification and advance for expenses to an individual who
served a predecessor of the Trust in any of the capacities described in (a) or
(b) above and to any employee or agent of the Trust or a predecessor of the
Trust. 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, regulation, insurance,
agreement or otherwise.
Neither the amendment nor repeal of
this Article XIII, nor the adoption or amendment of any other provision of the
Bylaws or the Declaration of Trust inconsistent with this Article XIII, 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
XIV.
AMENDMENT
OF BYLAWS
The Board
of Trustees shall have the exclusive power to adopt, alter or repeal any
provision of these Bylaws and to make new Bylaws.
ARTICLE
XV.
MISCELLANEOUS
All
references to the Declaration of Trust shall include any amendments
thereto.
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