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EXHIBIT 3.1 BYLAWS OF THE COMPANY, AS AMENDED BY RESOLUTION OF THE BOARD OF
DIRECTORS
CLARION COMMERCIAL HOLDINGS, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
SEAL
The Board of Directors may provide a suitable seal for the
Corporation, which may be either facsimile or any other form of seal and shall
remain in the custody of the Secretary. If the Board so provides, it shall be
affixed to all certificates of the Corporation's stock and to other instruments
requiring a seal.
ARTICLE II
STOCK
SECTION 1. CERTIFICATES. Each stockholder shall be entitled to
a certificate or certificates which shall represent and certify the number and
kind and class of shares owned by him in the Corporation. Each certificate shall
be signed by the Chairman of the Board or the President or a Vice President and
countersigned by the Secretary or an assistant secretary or the Treasurer or an
assistant treasurer.
The signatures may be either manual or facsimile signatures.
If any officer who has signed any certificate ceases to be an officer of the
Corporation before the certificate is issued, the certificate may nevertheless
be issued by the Corporation with the same effect as if the officer had not
ceased to be such officer as of the date of its issue. Each stock certificate
shall include on its face the name of the Corporation, the name of the
stockholder and the class of stock and number of shares represented by the
certificate. If the Corporation has authority to issue stock of more than one
class, the stock certificate shall contain on its face or back a full statement
or summary of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the stock of each class which the
Corporation is authorized to issue and if the Corporation is authorized to issue
any preferred or special class in series, the differences in the relative rights
and preferences between the shares of each series to the extent they have been
set, and the authority of the Board of Directors to set the relative rights and
preferences of subsequent series. In lieu of such full statement or summary,
there may be set forth upon the face or back of the certificate a statement that
the Corporation will furnish to any stockholder upon request and without charge,
a full statement of such information. A summary of such information included in
a registration statement permitted to become effective under the Securities Act
of 1933, as amended, shall be an acceptable summary for the purposes of this
Section. Every stock certificate representing shares of stock which are
restricted as to transferability by the Corporation shall contain a full
statement of the restriction or state that the Corporation will furnish
information about the restriction to the stockholder on request and without
charge.
SECTION 2. LOST CERTIFICATES. The Board of Directors may order
a new certificate or certificates of stock to be issued in place of any
certificates shown to have been lost, stolen or destroyed under such terms and
conditions as the Board of Directors deems reasonable. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such stolen, lost or destroyed certificate or certificates, or his
legal representative to indemnify the Corporation against any loss or claim
which may arise by reason of the issuance of a new certificate.
SECTION 3. TRANSFER AGENTS AND REGISTRARS. At such time as the
Corporation lists its securities on a national securities exchange or NASDAQ,
the Board of Directors shall appoint one or more banks or trust companies in
such city or cities as the Board of Directors may deem advisable, from time to
time, to act as transfer agents and/or registrars of the shares of stock of the
Corporation; and, upon such appointments being made, no certificate representing
shares shall be valid until countersigned by one of such transfer agents and
registered by one of such registrars.
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SECTION 4. TRANSFER OF STOCK. No transfers of shares of stock
of the Corporation shall be made if (i) void AB INITIO pursuant to any Article
of the Corporation's Charter, or (ii) the Board of Directors, pursuant to such
Article, shall have refused a tender of such shares. Permitted transfers of
shares of stock of the Corporation shall be made on the stock records of the
Corporation only upon the instruction of the registered holder thereof, or by
his attorney thereunto authorized by power of attorney duly executed and filed
with the Secretary or with a transfer agent or transfer clerk, and upon
surrender of the certificate or certificates, if issued, for such shares
properly endorsed or accompanied by a duly executed stock transfer power and the
payment of all taxes thereon. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, as to any transfers not prohibited by such Article of the Charter or
by action of the Board of Directors thereunder, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
SECTION 5. FIXING OF RECORD DATES; CLOSING OF TRANSFER BOOKS.
The Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of stockholders, or stockholders entitled to receive payment of any
dividend or the allotment of any rights, or in order to make a determination of
stockholders for any other proper purpose. Such date, in any case, shall be not
more than ninety (90) days, and in case of a meeting of stockholders, not less
than ten (10) days, prior to the date on which the particular action requiring
such determination of stockholders is to be taken.
SECTION 6. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments, if any, a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
SECTION 7. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with the Bylaws, as it may
deem expedient concerning the issue, transfer and registration of certificates
for shares of stock of the Corporation.
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE. All meetings of stockholders shall be held
at the principal executive office of the Corporation or at such other place as
shall be set by the Board of Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETING. An annual meeting of the
stockholders for the election of directors and the transaction of any business
within the powers of the Corporation shall be held during the month of May in
each year on a date and at the time set by the Board of Directors.
SECTION 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, president, chief
executive officer or Board of Directors may call a special meeting of the
stockholders. Subject to subsection (b) of this Section 3, a special meeting of
stockholders shall also be called by the secretary of the Corporation upon the
written request of the stockholders entitled to cast not less than a majority of
all the votes entitled to be cast at such meeting.
(b) Stockholder Requested Special Meetings. (1) Any
stockholder of record seeking to have stockholders request a special meeting
shall, by sending written notice to the secretary (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 duly authorized agents), shall bear the date of signature
of each such stockholder (or other agent) and shall set forth all information
relating to each such stockholder that must be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election
contest is not involved), or is otherwise required, in each case pursuant to
Regulation 14A under the
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Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder. 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 and make a public announcement of such
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 secretary.
(2) In order for any stockholder to request a special meeting,
one or more written requests for a special meeting signed by stockholders of
record (or their duly authorized agents) as of the Request Record Date entitled
to cast not less than a majority (the "Special Meeting Percentage") of all of
the votes entitled to be cast at such meeting (the "Special Meeting Request")
shall be delivered to the secretary. In addition, the Special Meeting Request
shall set forth the purpose of the meeting and the matters proposed to be acted
on at it (which shall be limited to the matters set forth in the Record Date
Request Notice received by the secretary), shall bear the date of signature of
each such stockholder (or other agent) signing the Special Meeting Request,
shall set forth 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) and the class and number of shares of stock of the
Corporation which are owned of record and beneficially by each such stockholder,
shall be sent to the secretary by registered mail, return receipt requested, and
shall be received by the secretary within 60 days after the Request Record Date.
Any requesting stockholder may revoke his, her or its request for a special
meeting at any time by written revocation delivered to the secretary.
(3) The requesting stockholders shall pay all costs of
preparing and mailing the notice of meeting (including the Corporation's proxy
materials) and any other notices required under these Bylaws. The secretary
shall inform the requesting stockholders of the estimation of such costs. The
secretary shall not be required to call a special meeting upon stockholder
request and such meeting shall not be held unless, in addition to the documents
required by paragraph (2) of this Section 3(b), the secretary receives payment
from such requesting stockholder of such reasonably estimated cost prior to the
preparation and mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special
meeting shall be held at such place, date and time as may be designated by the
president, chief executive officer or Board of Directors, whoever has called the
meeting. In the case of any special meeting called by the secretary upon the
request of stockholders (a "Stockholder Requested Meeting"), such meeting shall
be held at such place, date and time as may be designated by the Board of
Directors; provided, however, that the date of any Stockholder Requested Meeting
shall be not more than 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 offices of the Corporation. In fixing a date for any special meeting,
the president, chief executive officer or Board of Directors may consider such
factors as he, she or it deems relevant within the good faith exercise of
business judgment, including, without limitation, the nature of the matters to
be considered, the facts and circumstances surrounding any request for 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.
(5) If at any time as a result of written revocations of
requests for the special meeting, stockholders of record (or their duly
authorized agents) as of the Request Record Date entitled to cast less than the
Special Meeting Percentage shall have delivered and not revoked requests for a
special meeting, the secretary may refrain from mailing the notice of the
meeting or, if the notice of the meeting has been mailed, the secretary may
revoke the notice of the meeting at any time before ten days before the meeting
if the secretary has first sent to all other requesting stockholders written
notice of such revocation and of intention to revoke the notice of the meeting.
Any request for a special meeting received after a revocation by the secretary
of a notice of a meeting shall be considered a request for a new special
meeting.
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(6) The chairman of the Board of Directors, the president or
the 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 request
shall be deemed to have been delivered to the secretary until the earlier of (i)
five Business Days after receipt by the secretary of such purported request and
(ii) such date as the independent inspectors certify to the Corporation that the
valid requests received by the secretary represent at least a majority of the
issued and outstanding shares of stock that would be entitled to vote at such
meeting. Nothing contained in this paragraph (6) shall in any way be construed
to suggest or imply that the Corporation or any stockholder shall not be
entitled to contest the validity of any request, whether during or after such
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 New York are authorized or obligated by law or executive order
to close.
SECTION 4. NOTICE. Not less than ten nor more than 90 days before
each meeting of stockholders, the secretary shall give to each stockholder
entitled to vote at such meeting and to each stockholder not entitled to vote
who is entitled to notice of the meeting written or printed notice stating the
time and place of the meeting and, in the case of a special meeting or as
otherwise may be required by any statute, the purpose for which the meeting is
called, either by mail or by presenting it to such stockholder personally or by
leaving it at 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's
address as it appears on the records of the Corporation, with postage thereon
prepaid.
SECTION 5. SCOPE OF NOTICE. Any business of the Corporation may be
transacted at an annual meeting of stockholders without being specifically
designated in the notice, except such business as is required by any statute to
be stated in such notice. No business shall be transacted at a special meeting
of stockholders except as specifically designated in the notice.
SECTION 6. ORGANIZATION AND CONDUCT. Every meeting of stockholders
shall be conducted by an individual appointed by the Board of Directors to be
chairman of the meeting or, in the absence of such appointment, by the chairman
of the board or, in the case of a vacancy in the office or absence of the
chairman of the board, by one of the following officers present at the meeting:
the vice chairman of the board, if there be one, the president, the vice
presidents in their order of rank and seniority, or, in the absence of such
officers, a chairman chosen by the stockholders by the vote of a majority of the
votes cast by stockholders present in person or by proxy. The secretary, or, in
the secretary's absence, an assistant secretary, or in the absence of both the
secretary and assistant secretaries, a person appointed by the Board of
Directors or, in the absence of such appointment, a person appointed by the
chairman of the meeting shall act as secretary. In the event that the secretary
presides at a meeting of the stockholders, an assistant secretary shall record
the minutes of the meeting. The order of business and all other matters of
procedure at any meeting of stockholders shall be determined by the chairman of
the meeting. The chairman of the meeting may prescribe such rules, regulations
and procedures and take such action as, in the discretion of such chairman, are
appropriate for the proper conduct of the meeting, including, without
limitation, (a) restricting admission to the time set for the commencement of
the meeting; (b) limiting attendance at the meeting to stockholders of record of
the Corporation, their duly authorized proxies or other such persons as the
chairman of the meeting may determine; (c) limiting participation at the meeting
on any matter to stockholders of record of the Corporation entitled to vote on
such matter, their duly authorized proxies or other such persons as the chairman
of the meeting may determine; (d) limiting the time allotted to questions or
comments by participants; (e) maintaining order and security at the meeting; (f)
removing any stockholder or any other person who refuses to comply with meeting
procedures, rules or guidelines as set forth by the chairman of the meeting; and
(g) recessing or adjourning the meeting to a later date and time and place
announced at the meeting. Unless otherwise determined by the chairman of the
meeting, meetings of stockholders shall not be required to be held in accordance
with the rules of parliamentary procedure.
SECTION 7. 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 shall constitute a
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quorum; but this section shall not affect any requirement under any statute or
the charter of the Corporation for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present at any meeting of the
stockholders, the chairman of the meeting or the stockholders entitled to vote
at such meeting, present in person or by proxy, shall have the power to adjourn
the meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the meeting. At
such adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
The stockholders present either in person or by proxy, at a meeting
which has been duly called and convened, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 8. VOTING. A plurality of all the votes cast at a meeting
of stockholders duly called and at which a quorum is present shall be sufficient
to elect a director. Each share may be voted for as many individuals as there
are directors to be elected and for whose election the share is entitled to be
voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter
which may properly come before the meeting, unless more than a majority of the
votes cast is required by statute or by the charter of the Corporation. Unless
otherwise provided in the charter, each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders.
SECTION 9. PROXIES. A stockholder may cast the votes entitled to be
cast by the shares of stock owned of record by the stockholder in person or by
proxy executed by the stockholder or by the 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 time
of the meeting. No proxy shall be valid eleven months after its date, unless
otherwise provided in the proxy.
SECTION 10. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the
Corporation registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or a proxy
appointed by any of the foregoing individuals, unless some other person who has
been appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners
of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such stock. Any director or other
fiduciary may vote stock registered in his or her name as such fiduciary, either
in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by
it shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which
a stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
SECTION 11. INSPECTORS. The Board of Directors, in advance of any
meeting, may, but need not, appoint one or more individual inspectors or one or
more entities that designate individuals as inspectors to act at the meeting or
any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance
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of the meeting or at the meeting by the chairman of the meeting. The inspectors,
if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. Each such report shall be in
writing and signed by him or her or by a majority of them if there is more than
one inspector acting at such meeting. If there is more than one inspector, the
report of a majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the meeting and
the results of the voting shall be prima facie evidence thereof.
SECTION 12. NOMINATIONS AND PROPOSALS BY STOCKHOLDERS.
(a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (i)
pursuant to the 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 provided for in this
Section 12(a) and at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 12(a).
(2) For nominations for election to the Board of Directors or
other business to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of paragraph (a)(1) of this Section 12, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation and such other business must otherwise be a proper matter for action
by stockholders. To be timely, a stockholder's notice must be delivered to the
Secretary at the principal executive office of the Corporation by not later than
the close of business on the 90th day prior to the first anniversary of the date
of mailing of the notice for the preceding year's annual meeting nor earlier
than the close of business on the 120th day prior to the first anniversary of
the date of mailing of the notice for the preceding year's annual meeting;
provided, however, that in the event that the date of the mailing of the notice
for the annual meeting is advanced or delayed by more than 30 days from the
anniversary date of the mailing of the notice for the preceding year's annual
meeting, notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the 120th day prior to the date of mailing of the
notice for such annual meeting and not later than the close of business on the
later of the 90th day prior to the date of mailing of the notice for such annual
meeting or the tenth day following the day on which public announcement of the
date of mailing of the notice for such meeting is first made by the Corporation.
In no event shall the public announcement of a postponement of the mailing of
the notice for such annual meeting or of an adjournment or postponement of an
annual meeting to a later date or time commence a new time period for the giving
of a stockholder's notice as described above. A stockholder's notice to be
proper must set forth (i) as to each person whom the stockholder proposes to
nominate for election or reelection as a director (A) the name, age, business
address and residence address of such person, (B) the class and number of shares
of stock of the Corporation that are beneficially owned or owned of record by
such person and (C) all other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A (or any successor provision) under the Exchange Act (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (ii) as to any other business that the
stockholder proposes to bring before the meeting, a description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any interest in such business of such stockholder
(including any anticipated benefit to the stockholder therefrom) and of each
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and each beneficial owner, if any, on whose
behalf the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's stock ledger and current name
and address, if different, and of such beneficial owner, and (y) the class and
number of shares of stock of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 12 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement by the Corporation of such action or specifying
the size of the increased Board of Directors at least 100 days prior to the
first anniversary of the date of mailing of the notice for the preceding year's
annual meeting, a stockholder'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 the notice is delivered to the Secretary at the
principal
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executive offices of the Corporation not later than the close of business on the
tenth day immediately following the day on which such public announcement is
first made by the Corporation.
(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
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that the
procedural requirements set forth in Section 3 of Article III of these Bylaws
have been satisfied, by any stockholder of the Corporation who is a stockholder
of record both at the time of giving of notice provided for in this Section
12(b) and at the time of the special meeting, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in this Section
12(b). In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Corporation's notice of meeting,
if the stockholder's notice containing the information required by paragraph
(a)(2) of this Section 12 shall have been delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the
close of business 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 the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of a postponement or adjournment of a special meeting to a later
date or time commence a new time period for the giving of a stockholder's notice
as described above.
(c) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 12 shall be eligible to serve as
directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 12. The chairman of the meeting shall
have the power and duty to determine whether a nomination or any other business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 12 and, if any
proposed nomination or other business is not in compliance with this Section 12,
to declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 12, (a) the "date of mailing
of the notice" shall mean the date of the proxy statement for the solicitation
of proxies for election of directors and (b) "public announcement" shall mean
disclosure (i) in a press release either transmitted to the principal securities
exchange on which shares of the Corporation's common stock are traded or
reported by a recognized news service or (ii) in a document publicly filed by
the Corporation with the United States Securities and Exchange Commission.
(3) Notwithstanding the foregoing provisions of this Section
12, a stockholder shall also comply with all applicable requirements of state
law and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 12. Nothing in this Section 12
shall be deemed to affect any right of a stockholder to request inclusion of a
proposal in, nor the right of the Corporation to omit a proposal from, the
Corporation's proxy statement pursuant to Rule 14a-8 (or any successor
provision) under the Exchange Act.
SECTION 13. VOTING BY BALLOT. Voting on any question or in
any election may be viva voce unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
SECTION 14. Meeting by Conference Telephone. To the extent
permitted by the Board of Directors or the chairman of the meeting, stockholders
may participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means
constitutes presence in person at a meeting.
ARTICLE IV
DIRECTORS
SECTION 1. NUMBER AND CLASS.
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(A) The affairs of the Corporation shall be under the
direction of the Board of Directors which shall be divided into classes as
provided in the Charter.
(B) At any meeting of the Board of Directors, 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
required by the Maryland General Corporation Law, nor more than fifteen. The
tenure of office of a director shall not be affected by any decrease or increase
in the number of directors so made by the Board of Directors. In the event the
number of directors is increased in advance of any annual meeting of
stockholders, the Board of Directors shall elect a director or directors to fill
such vacancies until the next annual meeting of stockholders, and shall appoint
them to a class.
(C) During the time that the Corporation is to qualify as a
real estate investment trust ("REIT"), except in the case of a vacancy, a
majority of the Board of Directors shall be Independent Directors (as
hereinafter defined). For purposes of these Bylaws, "Independent Director" shall
mean a director of the Corporation who is not affiliated, directly or
indirectly, with any person or entity, if any, responsible for directing or
performing the day-to-day business affairs of the Corporation (the "Manager"),
whether by ownership of, ownership interest in, employment by, any material
business or professional relationship with, or service as an officer or director
of the Manager or an affiliated business entity of the Manager; PROVIDED,
HOWEVER, that a director shall not be considered an Independent Director if he
or she is serving as a director of more than three REITs organized by the
Manager or its affiliated business entities. "Affiliate" means, when used with
reference to a specified person, (i) any person that directly or indirectly
controls or is controlled by or is under common control with the specified
person, (ii) any person that is an officer of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified person or of which
the specified person is an officer, partner or trustee, or with respect to which
the specified person serves in a similar capacity and (iii) any person that,
directly or indirectly, is the beneficial owner of five percent (5%) or more of
any class of equity securities of the specified person or of which the specified
person is directly or indirectly the owner of five percent (5%) or more of any
class of equity securities ("person" includes any individual, corporation,
partnership, trust, or other entity). Directors need not be stockholders in the
Corporation.
SECTION 2. POWER. All the powers of the Corporation are vested
in and shall be exercised by the Board of Directors except as otherwise
prescribed by statute, by the Charter or by these Bylaws. If the entire Board of
Directors should become vacant, any stockholder may call a special meeting and
Directors for the unexpired term may be elected at the said special meeting in
the same manner as provided for their election at annual meetings.
SECTION 3. VACANCIES. Any vacancy occurring on the Board of
Directors for any cause other than by reason of an increase in the number of
directors may, subject to the provisions of Section 5, be filled by a majority
of the remaining members of the Board of Directors, although such majority may
be less than a quorum; provided, however, that if the Corporation has sought to
qualify as a REIT and in accordance with Section 1 of this Article IV a majority
of the Board of Directors are required to be Independent Directors, then
Independent Directors shall nominate replacements for vacancies among the
Independent Directors, which must be elected by a majority of the directors,
including a majority of the Independent Directors. Any vacancy occurring by
reason of an increase in the number of directors may be filled by action of a
majority of the entire Board of Directors including a majority of Independent
Directors. If the stockholders of any class or series are entitled separately to
elect one or more directors, a majority of the remaining directors elected by
that class or series or the sole remaining director elected by that class or
series may fill any vacancy among the number of directors elected by that class
or series. A director elected by the Board of Directors to fill a vacancy shall
be elected to hold office until the next annual meeting of stockholders and
until his or her successor is elected and qualified.
SECTION 4. RESIGNATIONS. Any director or member of a
committee may resign at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of the receipt by the Chairman of the Board, the President or the
Secretary.
SECTION 5. REMOVAL. At any meeting of stockholders duly called
and at which a quorum is present, the stockholders may, by the affirmative vote
of the holders of a majority of the votes entitled to be cast thereon, remove
any director or directors from office with, but not without, cause, and may
elect a successor or successors to fill any resulting vacancies for the
unexpired terms of removed directors.
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SECTION 6. COMMITTEES OF THE BOARD. The Board of Directors may
appoint from among its members, an executive committee and other committees
comprised of one or more directors. A majority of the members of any committee,
except the executive committee, so appointed shall be Independent Directors. If
the Corporation lists its shares on a national securities exchange or on the
National Association of Securities Dealers, Inc.'s Automated Quotation System
("NASDAQ"), the Board of Directors shall appoint an audit committee comprised of
not less than two (2) members, all of whom are Independent Directors. The Board
of Directors may delegate to any committee any of the powers of the Board of
Directors except the power to fill vacancies on the Board of Directors, declare
dividends or distributions on stock, recommend to the stockholders any action
which requires stockholder approval, amend or repeal the Bylaws, approve any
merger or share exchange which does not require stockholder approval or issue
stock. If, however, the Board of Directors has given general authorization for
the issuance of stock, a committee of the Board, in accordance with a general
formula or method specified by the Board of Directors by resolution or by
adoption of a stock option plan, may fix the terms of stock subject to
classification or reclassification and the terms on which any stock may be
issued.
Notice of committee meetings shall be given in the same manner
as notice for special meetings of the Board of Directors.
The Board of Directors may designate a chairman of any
committee, and such chairman may fix the time and place of its meetings unless
the Board shall otherwise provide. In the absence or disqualification of any
member of any such committee, the members thereof present at any meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously, if there are only two members, or by a majority, if there are more
than two members, appoint another director to act at the meeting in the place of
such absent or disqualified members; provided, however, that in the event of the
absence or disqualification of an Independent Director, such appointee shall be
an Independent Director.
Each committee shall keep minutes of its proceedings and shall
report the same to the Board of Directors at the meeting next succeeding, and
any action by the committees shall be subject to revision and alteration by the
Board of Directors, provided that no rights of third persons shall be affected
by any such revision or alteration.
Subject to the provisions hereof, the Board of Directors shall
have the power at any time to change the membership of any committee, to fill
all vacancies, to designate alternative members to replace any absent or
disqualified member, or to dissolve any such committee.
SECTION 7. MEETINGS OF THE BOARD OF DIRECTORS. Meetings of the
Board of Directors, regular or special, may be held at any place in or out of
the State of Maryland as the Board may from time to time determine or as shall
be specified in the notice of such meeting.
Members of the Board of Directors may participate in a meeting
by means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by such means constitutes presence in person at a
meeting.
The first meeting of each newly elected Board of Directors
shall be held as soon as practicable after the annual meeting of the
stockholders at which the directors were elected. 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, or as shall be
specified in a written waiver signed by all of the directors as provided in
Section 8, except that no notice shall be necessary if such meeting is held
immediately after the adjournment, and at the site, of the annual meeting of
stockholders.
Special meetings of the Board of Directors may be called at
any time by two (2) or more directors or by a majority of the members of the
executive committee, if one be constituted, in writing with or without a meeting
of such committee, or by the Chairman of the Board or the President. Special
meetings may be held at such place or places in or out of the State of Maryland
as may be designated from time to time by the Board of Directors; in the absence
of such designation, such meetings shall be held at such places as may be
designated in the notice of meeting.
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Notice of the place and time of every meeting of the Board of
Directors shall be delivered by the Secretary to each director either personally
or by telephone, telegraph, overnight courier or facsimile, or by leaving the
same at his residence or usual place of business at least twenty-four (24) hours
before the time at which such meeting is to be held or, if by first-class mail,
at least four (4) days before the day on which such meeting is to be held. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail addressed to the director at his post office address as it appears
on the records of the Corporation, with postage thereon paid.
SECTION 8. INFORMAL ACTION BY DIRECTORS. Unless otherwise
provided by law, any action required to be taken at a meeting of the directors
or any other action which may be taken at a meeting of the directors may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the directors.
SECTION 9. QUORUM AND VOTING. At all meetings of the Board, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the action of a majority of the directors present
at any 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 law, the Corporation's Charter or these Bylaws. If a quorum shall not
be present at any meeting of the directors, the directors present thereat may,
by a majority vote, adjourn the meeting from time to time, without notice other
than announcement at the meeting of the time, date and place of the next meeting
of the directors, until a quorum shall be present.
SECTION 10. ORGANIZATION. The Chairman of the Board shall
preside at each meeting of the Board of Directors. In the absence or inability
of the Chairman of the Board to preside at a meeting, the President or, in his
absence or inability to act, another director chosen by a majority of the
directors present, shall act as chairman of the meeting and preside thereat. The
Secretary (or, in his absence or inability to act, any person appointed by the
chairman of the meeting) shall act as Secretary of the meeting and keep the
minutes thereof.
SECTION 11. COMPENSATION OF DIRECTORS. Independent Directors
shall receive a stated salary for their services or a fixed sum, and expenses of
attendance at each regular or special meeting of the Board of Directors, or of
any committee thereof or both, as may be determined from time to time by the
Board. Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 12. MANAGEMENT ARRANGEMENTS. The Board of Directors
may delegate the duty of management of the assets and the administration of the
Corporation's day-to-day operations to a Manager pursuant to a written contract
or contracts, or any extension thereof, which have obtained the requisite
approvals of the Board of Directors, including a majority of the Independent
Directors, or the stockholders of the Corporation, as provided in the Charter.
All transactions involving the Corporation in which the
Manager has an interest must be approved by a majority of the Independent
Directors.
The Board of Directors shall evaluate the performance of the
Manager before entering into or renewing any management arrangement. The minutes
of meetings with respect to such evaluation shall reflect the criteria used by
the Board of Directors in making such evaluation. Upon any termination of the
initial management arrangements reflected in the Registration Statement, the
Board of Directors shall determine (a) to perform the management function for
the Corporation, and (b) to justify the compensation provided for in its
contract with the Corporation. The initial contract for the services of a
Manager entered into by the Board of Directors shall have a term of no more than
two (2) years, renewable at or prior to expiration of the contract. Each
contract shall be terminable without cause by a majority of the Independent
Directors or the Manager on sixty (60) days' written notice.
The Independent Directors shall determine at least annually,
following the Manager's initial term, that the compensation which the
Corporation contracts to pay the Manager is reasonable in relation to the nature
and quality of services performed and also shall supervise performance of the
Manager and the compensation paid to it by the Corporation to determine that the
provisions of such contract are being carried out. Each such determination shall
be based upon the following factors and all other factors the Independent
Directors may deem
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relevant and the findings of the Independent Directors on each of such factors
shall be recorded in the minutes of the Board of Directors:
(A) the size of the management fee in relation to the size,
compensation and profitability of the investment portfolio of the
Corporation;
(B) the success of the Manager in generating opportunities
that meet the investment objectives of the Corporation;
(C) the rates charged to other corporations similar to the
Corporation and to other investors by advisors performing similar
services;
(D) additional revenues realized by the Manager and its
affiliates through their relationship with the Corporation, including
loan administration, underwriting or other commissions, fees for
issuance and administration services in connection with issuances of
structured securities and other fees, whether paid by the Corporation
or by others with whom the Corporation does business;
(E) the quality and extent of service and advice furnished to
the Corporation;
(F) the performance of the investment portfolio of the
Corporation, including income, conservation or appreciation of capital,
frequency of problem investments and competence in dealing with
distress situations; and
(G) the quality of the investment portfolio of the Corporation
in relationship to the investments generated by the Manager for its own
account.
SECTION 14. TOTAL EXPENSES. The Independent Directors shall
determine, from time to time to time but at least annually, that the total fees
and expenses of the Corporation are reasonable in light of all relevant factors.
SECTION 15. INVESTMENT POLICIES AND RESTRICTIONS. It shall be
the duty of the Board of Directors to ensure that the purchase, sale, retention
and disposal of the Corporation's assets, and the investment policies of the
Corporation and the limitations thereon or amendment thereof are at all times:
(A) consistent with such policies, limitations and
restrictions recited in the registration statement on Form S-11, as amended (the
"Registration Statement"), filed with the Securities and Exchange Commission in
connection with this Corporation's initial public offering of common stock (the
"Initial Public Offering"); and
(B) in compliance with the restrictions applicable to REITs
pursuant to the Internal Revenue Code of 1986, as amended.
ARTICLE V
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be
a Chairman of the Board, a President, a Treasurer and a Secretary, who shall be
elected by the Board of Directors to serve for one year and until their
respective successors are elected and qualified, except as otherwise provided in
any employment agreement between the Corporation and any officer. The President
shall always be a member of the Board of Directors. The Board of Directors may
also appoint one or more Vice Presidents. The same person may hold any two or
more offices except those of President and Vice President.
SECTION 2. SUBORDINATE OFFICERS, COMMITTEES AND AGENTS. The
Board of Directors may from time to time elect such officers and appoint such
committees, employees or other agents as the business of the Corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these Bylaws, or as the Board of
Directors may from time to time determine. The directors may delegate
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to any officer or committee the power to elect subordinate officers and to
retain or appoint employees or other agents.
SECTION 3. PRESIDENT. The President shall, subject to the
control of the directors, in general supervise and control all of the business
and affairs of the Corporation. He may sign any deeds, mortgages, bonds,
contracts, or other instruments which the directors have authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the directors or by these Bylaws to some other officer or
agent of the Corporation, or shall be required by law to be otherwise signed or
executed; and in general shall perform all duties incident to the office of
president and such other duties as may be prescribed by the directors from time
to time.
SECTION 4. VICE PRESIDENT. In the absence of the President or
in event of his death, inability or refusal to act, the Vice President shall
perform all the powers of and subject to all the restrictions upon, the
President. The Vice President shall perform such other duties as from to time
may be assigned to him by the President or by the directors.
SECTION 5. SECRETARY. The Secretary shall keep the minutes of
the stockholders' and of the directors' meetings in one or more books provided
for that purpose, see that all notices are duly given in accordance with the
provisions of these Bylaws or as required, be custodian of the corporate records
and of the seal of the Corporation and keep a register of the post office
address of each Stockholder which shall be furnished to the Secretary by such
stockholder, have general charge of the stock transfer books of the Corporation
and, in general, perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the President or by
the directors.
SECTION 6. TREASURER. The Treasurer shall have charge and
custody of and be responsible for all funds and securities of the Corporation;
receive and give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the Corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with these Bylaws and in general perform all of the duties incident
to the office of Treasurer and such other duties as from time to time may be
assigned to him by the President or by the directors.
SECTION 7. OTHER OFFICERS. The other officers of the
Corporation shall perform such duties as the President may from time to time
assign to them.
SECTION 8. REMOVAL. Any officer elected by the Board of
Directors may be removed, either for or without cause, at any time upon the vote
of a majority of the Board of Directors. Any other employee of the Corporation
may be removed or dismissed at any time by the President.
SECTION 9. RESIGNATION. Any officer or agent may resign at any
time by giving written notice to the Board of Directors, or to the President or
to the Secretary of the Corporation. Any such resignation shall take effect at
the date of the receipt of such notice or at any later time specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 10. VACANCIES. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause, shall be
filled by the Board of Directors or by the officer or remaining members of the
committee to which the power to fill such office has been delegated pursuant to
Section 2 of this Article, as the case may be, and if the office is one for
which these Bylaws prescribe a term, shall be filled for the unexpired portion
of the term.
SECTION 11. SALARIES. The salaries of the officers elected by
the Board of Directors shall be fixed from time to time by the Board of
Directors or by such officer as may be designated by resolution of the Board.
The salaries or other compensation of any other officers, employees and other
agents shall be fixed from time to time by the officer or committee to which the
power to elect such officers or to retain or appoint such employees or other
agents has been delegated pursuant to Section 2 of this Article. No officer
shall be prevented from receiving such salary or other compensation by reason of
the fact that he is also a director of the Corporation.
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ARTICLE VI
SIGNATURES
SECTION 1. NEGOTIABLE INSTRUMENTS. All checks, drafts or notes
of the Corporation shall be signed and/or countersigned by such officer,
officers, agent or agents of the Corporation as may be so designated from time
to time by the Board of Directors of the Corporation.
SECTION 2. STOCK TRANSFER. All endorsements, assignments,
stock powers or other instruments of transfer of securities standing in the name
of the Corporation shall be executed for and in the name of the Corporation by
the President or Vice President or by such officer as the Board of Directors may
designate.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end on the last day
of each calendar year.
ARTICLE VIII
WAIVER OF NOTICE
Whenever, under the provisions of these Bylaws or of any law,
the stockholders or Directors are authorized to hold any meeting after notice,
or after the lapse of any prescribed period of time, such meeting may be held
without notice, or without such lapse of time, by the written waiver of such
notice signed by every person entitled to notice, or if every person entitled to
notice shall be present at such meeting.
ARTICLE IX
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.
ARTICLE X
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 a party to the proceeding by reason of his or
her service in that capacity or (b) any individual who, while a director of the
Corporation and at the request of the Corporation, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made a
party to the proceeding by reason of his or her service in that capacity. The
Corporation may, with the approval of its Board of Directors, provide such
indemnification and advance for expenses to a person who served a predecessor of
the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the
adoption or amendment of any other provision of the Bylaws or charter of the
Corporation inconsistent with this Article, shall apply to or affect in any
respect the applicability of the preceding paragraph with respect to any act or
failure to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XI
MISCELLANEOUS PROVISIONS
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SECTION 1. BOOKS AND RECORDS. The Corporation shall keep
correct and complete books and records of its accounts and transactions and
minutes of the proceedings of its stockholders and Board of Directors and of any
executive or other committee when exercising any of the powers of the Board of
Directors. The books and records of the Corporation may be in written form or in
any other form which can be converted within a reasonable time into written form
for visual inspection. Minutes shall be recorded in written form but may be
maintained in the form of a reproduction. The original or a certified copy of
the Bylaws shall be kept at the principal office of the Corporation.
SECTION 2. VOTING SHARES IN OTHER CORPORATIONS. Stock of other
corporations or associations, registered in the name of the Corporation, may be
voted by the President, a Vice President, or a proxy appointed by either of
them. The Board of Directors, however, may by resolution appoint some other
person to vote such shares, in which case such person shall be entitled to vote
such shares upon the production of a certified copy of such resolution.
SECTION 3. ANNUAL STATEMENT OF AFFAIRS. The President or chief
accounting officer shall prepare annually a full and correct statement of the
affairs of the Corporation, to 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 stockholders and, within 20 days after
the meeting, placed on file at the Corporation's principal office.
SECTION 4. MAIL. Except as herein expressly provided, any
notice or other document which is required by these Bylaws to be mailed shall be
deposited in the United States mails, postage prepaid.
SECTION 5. RELIANCE. Each director, officer, employee and
agent of the Corporation shall, in the performance of his or her duties with
respect to the Corporation, be fully justified and protected with regard to any
act or failure to act in reliance in good faith upon the books of account or
other records of the Corporation, upon the opinion of counsel or upon reports
made to the Corporation by any of its officers or employees or by the adviser,
accountants, appraisers or other experts or consultants selected by the Board of
Directors or officers of the Corporation, regardless of whether such counsel or
expert may also be a director.
SECTION 6. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS. The directors shall have no responsibility to devote their full time
to the affairs of the Corporation. Any director or officer, employee or agent of
the Corporation, in his or her personal capacity or in a capacity as an
affiliate, employee or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to or in addition
to those of or relating to the Corporation.
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