SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
October 3, 1995
AMERICAN INDUSTRIAL PROPERTIES REIT
(Exact name of registrant as specified in its charter)
Texas 1-9016 75-6335572
(State or Other Jurisdiction) (Commission File Number)
(I.R.S. Employer Identification of Incorporation Number)
6220 North Beltline, Suite 205, Irving,Texas 75063
(zip code)
(Address of principal executive
offices)
(214) 550-6053
(Registrant's telephone number,
including area code)
Item 5. Other Events
Effective September 29, 1995, the Registrant's Trust
Managers adopted the Registrant's Fourth Amended and Restated
Bylaws (the "Bylaws") to reflect the adoption of the revised
Texas Real Estate Investment Trust Act (the "Texas REIT Act")
(amended as of September 1, 1995), to conform the Bylaws to the
Texas REIT Act and to provide for certain notice requirements in
connection with nomination of Trust Managers and other matters to
be brought before the shareholders. The following is a summary
of material changes adopted by the Trust Managers.
The Bylaws have been amended to provide that no business may
be transacted at an annual meeting of shareholders unless
properly brought before the meeting by the Trust Managers or a
shareholder. For business to be properly brought before an
annual meeting by a shareholder, Section 2.5 provides that such
shareholder must give notice in writing to the Registrant in the
proper form and during a specified time period prior to the
annual meeting of shareholders.
The Bylaws have also been amended to provide that only
persons who have been properly nominated may be elected as Trust
Managers. For a nomination by a shareholder to be proper,
Section 3.4 provides that such shareholder must give notice in
writing to the Registrant in the proper form and during a
specified time period prior to the annual meeting of
shareholders.
Article XI of the Bylaws has been amended to provide that
shareholder amendments to provisions regarding nomination and
election of Trust Managers, filling of Trust Manager vacancies,
notice of shareholder proposals and limitations on transfer and
ownership of shares, will require the affirmative vote of two-
thirds of the outstanding shares.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(c) Exhibits
3.1 Fourth Amended and Restated Bylaws.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
AMERICAN INDUSTRIAL PROPERTIES REIT
\s\ Charles W. Wolcott
President and Chief Executive Officer
DATE: October 3, 1995
Index to Exhibits
Sequentially
Exhibit No. Description Numbered Page
*3.1 Fourth Amended and Restated Bylaws
* Filed herewith.
Exhibit 3.1
FOURTH AMENDED AND RESTATED
BYLAWS
OF
AMERICAN INDUSTRIAL PROPERTIES REIT
September 29, 1995
INDEX
ARTICLE I Offices 1
Section 1.1 Principal Office 1
Section 1.2 Other Offices 1
ARTICLE II Meetings of Shareholders 1
Section 2.1 Place of Meetings 1
Section 2.2 Annual Meeting 1
Section 2.3 Special Meetings 1
Section 2.4 Notice of Meetings 2
Section 2.5 Business at Annual Meeting 2
Section 2.6 Voting Lists 3
Section 2.7 Quorum 3
Section 2.8 Organization 4
Section 2.9 Proxies 4
Section 2.10 Voting of Shares 5
Section 2.11 Voting of Shares by Certain Holders 5
Section 2.12 Election of Trust Managers 6
Section 2.13 Telephone Meetings 6
Section 2.14 Action Without Meeting 6
Section 2.15 Inspectors and Voting Procedures 6
ARTICLE III Trust Managers 7
Section 3.1 Powers and Responsibilities 7
Section 3.2 Number and Qualification 7
Section 3.3 Election and Term of Office 8
Section 3.4 Nomination of Trust Managers 8
Section 3.5 Resignation 9
Section 3.6 Vacancies; Increases 9
Section 3.7 Bond Not Required; Time Commitment 10
Section 3.8 Compensation 10
Section 3.9 Execution of Documents 10
ARTICLE IV Meetings of the Trust Managers 10
Section 4.1 Place of Meetings 10
Section 4.2 Annual Meeting 10
Section 4.3 Regular Meetings 11
Section 4.4 Special Meetings 11
Section 4.5 Quorum and Action 11
Section 4.6 Presumption of Assent to Action 11
Section 4.7 Telephone Meetings 11
Section 4.8 Action Without Meeting 11
Section 4.9 Minutes 12
Section 4.10 Interest of Trust Managers 12
Section 4.11Right of Trust Managers and Officers to Own Shares
or Other Property and to Engage in Other Businesses 12
Section 4.12Transactions Between Trust Managers and the Trust 12
Section 4.13Persons Dealing with Trust Managers or Officers 13
Section 4.14 Reliance 13
Section 4.15 Liability of Trust Managers 13
ARTICLE V Committees of the Trust Managers 14
Section 5.1 Membership and Authorities 14
Section 5.2 Minutes and Rules of Procedure 14
Section 5.3 Vacancies 14
Section 5.4 Telephone Meetings 14
Section 5.5 Action Without Meeting 14
ARTICLE VI Officers 15
Section 6.1 Number 15
Section 6.2Election, Term of Office and Qualification 15
Section 6.3 Subordinate Officers 15
Section 6.4 Resignation 15
Section 6.5 Removal 15
Section 6.6 Vacancies; New Offices 15
Section 6.7 The Chief Executive Officer 16
Section 6.8 The President 16
Section 6.9 The Vice Presidents 16
Section 6.10 The Secretary 16
Section 6.11 Assistant Secretaries 17
Section 6.12 The Treasurer 17
Section 6.13 Assistant Treasurers 17
Section 6.14 Treasurer's Bond 17
Section 6.15 Salaries 17
Section 6.16 Execution of Documents 18
ARTICLE VII Trust Shares 18
Section 7.1 Share Certificates 18
Section 7.2 Lost Certificates, etc. 18
Section 7.3 Transfer of Shares 19
Section 7.4 Ownership of Shares 19
Section 7.5 Closing of Transfer Books 19
Section 7.6 Dividends 19
Section 7.7 Surplus and Reserves 19
Section 7.8 Repurchase of Shares 20
ARTICLE VIII Indemnification 20
Section 8.1 Definitions 20
Section 8.2 Indemnification 20
Section 8.3 Successful Defense 21
Section 8.4 Determinations 21
Section 8.5 Advancement of Expenses 22
Section 8.6 Employee Benefit Plans 22
Section 8.7 Other Indemnification and Insurance 22
Section 8.8 Notice 22
Section 8.9 Construction 23
Section 8.10 Continuing Offer, Reliance, etc. 23
Section 8.11 Effect of Amendment 23
ARTICLE IX Limitations on Transfer and Ownership 23
Section 9.1 Limitations on Transfer. 23
Section 9.2 Limitations on Ownership. 24
Section 9.3 Shareholder Information. 24
Section 9.4 Transferee Information. 24
Section 9.5 Excess Shares. 24
9.5.1 Creation of Excess Shares. 24
9.5.2 Ownership in Trust. 25
9.5.3 Dividend Rights. 25
9.5.4 Rights Upon Liquidation. 25
9.5.5 Voting Rights. 25
9.5.6 Restrictions on Transfer. 26
9.5.7 Trust's Redemption Right. 26
Section 9.6Exceptions to Certain Ownership and Transfer
Limitations. 27
9.6.1 Exemption by Trust Managers. 27
9.6.2 Shares Held by Underwriters. 27
Section 9.7Authority to Revoke Exceptions to Limitations 27
Section 9.8 Severability 27
Section 9.9 Authority of the Trust Managers 28
Section 9.10 New York Stock Exchange 28
ARTICLE X General Provisions 28
Section 10.1 General Policies 28
Section 10.2 Limited Liability of Shareholders 28
Section 10.3 Waiver of Notice 28
Section 10.4 Seal 29
Section 10.5 Fiscal Year 29
Section 10.6 Checks, Notes, etc 29
Section 10.7 Examination of Books and Records 29
Section 10.8 Voting Of Shares Held by the Trust 29
Section 10.9 Number, Gender, etc 29
Section 10.10 Annual and Quarterly Reports 30
ARTICLE XI Amendments 30
ARTICLE XII Subject to All Laws 30
AMERICAN INDUSTRIAL PROPERTIES REIT
FOURTH AMENDED AND RESTATED BYLAWS
ARTICLE I
Offices
1.1 Principal Office. The principal office of the Trust
shall be in the City of Irving, Dallas County, Texas or at such
other location as the Trust Managers may from time to time
determine.
1.2 Other Offices. The Trust may also have offices at
such other places, both within and without the State of Texas, as
the Trust Managers may from time to time determine or the
business of the Trust may require.
ARTICLE II
Meetings of Shareholders
2.1 Place of Meetings. The Trust Managers may designate
any place, either within or without the State of Texas, as the
place of meeting for any annual meeting or for any special
meeting called by the Trust Managers. A waiver of notice signed
by all shareholders entitled to vote at a meeting may designate
any place, either within or without the State of Texas, as the
place for the holding of such meeting. If no designation is
made, or if a special meeting be otherwise called, the place of
meeting shall be the principal office of the Trust.
2.2 Annual Meeting. The annual meeting of shareholders
commencing with the year 1995 shall be held at such time, on such
day and at such place as may be designated by the Trust Managers.
At the annual meeting, the shareholders shall, subject to Section
2.5 and Section 3.3 of these Bylaws, elect Trust Managers and
transact such other business as may properly be brought before
the meeting. Failure to hold the annual meeting at the
designated time shall not cause the dissolution of the Trust.
2.3 Special Meetings. Special meetings of the
shareholders for any purpose or purposes, unless otherwise
prescribed by law or by the Declaration of Trust, may be called
by the Trust Managers, any officer of the Trust or the holders of
at least ten percent (10%) of all of the shares entitled to vote
at such meeting. Business transacted at all special meetings
shall be confined to the purpose or purposes stated in the notice
of the meeting.
2.4 Notice of Meetings. Written or printed notice of all
meetings of shareholders stating the place, day and hour thereof,
and in the case of a special meeting the purpose or purposes for
which the meeting is called, shall be personally delivered or
mailed, not less than ten (10) days nor more than sixty (60) days
prior to the date of the meeting, to the shareholders of record
entitled to vote at such meeting. If mailed, such notice shall
be deemed to be delivered when deposited in the United States
Mail addressed to the shareholder at his address as it appears on
the share transfer books of the Trust and the postage shall be
prepaid. Personal delivery of any such notice to any officer of
a corporation or association, or to any member of a partnership,
shall constitute delivery of such notice to such corporation,
association or partnership.
2.5 Business at Annual Meeting. No business may be
transacted at an annual meeting of shareholders, other than
business that is either (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the
Trust Managers (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by or at
the direction of the Trust Managers (or any duly authorized
committee thereof) or (c) otherwise properly brought before the
annual meeting by any shareholder of the Trust (i) who is a
shareholder of record on the date of the giving of the notice
provided for in this Section 2.5 and on the record date for the
determination of shareholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set
forth in this Section 2.5.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
shareholder, such shareholder must have given timely notice
thereof in proper written form to the Secretary of the Trust. To
be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal offices of
the Trust (i) with respect to the Trust's first annual meeting of
shareholders following the adoption of this bylaw, notice by the
shareholder to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on
which public disclosure of the adoption of this Section 2.5 is
first made and (ii) thereafter, not less than sixty (60) days nor
more than ninety (90) days prior to the date of the applicable
annual meeting of shareholders, provided, however, that in the
event that less than seventy (70) days' notice or prior public
disclosure of the date of the meeting be given or made, notice by
the shareholder to be timely must be so received not later than
the close of business on the tenth (10th) day following the day
on which such notice of the date of the applicable annual meeting
was mailed or such public disclosure of the date of such annual
meeting was made, whichever first occurs. For purposes of this
Section 2.5, the date of a public disclosure shall include, but
not be limited to, the date on which such disclosure is made in a
press release reported by the Dow Jones News Services, the
Associated Press or any comparable news service or in a document
publicly filed by the Trust with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) (or the rules and
regulations thereunder) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
To be in proper written form, a shareholder's notice to
the Secretary must set forth as to each matter such shareholder
proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and record address of such
shareholder, (iii) the number of shares of the Trust that are
owned beneficially or of record by such shareholder, (iv) a
description of all arrangements or understandings between such
shareholder and any other person or persons (including their
names) in connection with the proposal of such business by such
shareholder and any material interest of such shareholder in such
business and (v) a representation that such shareholder intends
to appear in person or by proxy at the annual meeting to bring
such business before the meeting.
No business shall be conducted at the annual meeting of
shareholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 2.5;
provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures,
nothing in this Section 2.5 shall be deemed to preclude
discussion by any shareholder of any such business. If the
presiding officer of an annual meeting determines that business
was not properly brought before the annual meeting in accordance
with the foregoing procedures, the presiding officer shall
declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
2.6 Voting Lists. The officer or agent having charge of
the share transfer books for shares of the Trust shall make, at
least ten (10) days before each meeting of the shareholders, a
complete list of shareholders entitled to vote at such meeting or
any adjournment thereof, arranged in alphabetical order, with the
address of each shareholder and the number of shares held by each
shareholder, which list, for a period of ten (10) days prior to
such meeting, shall be kept on file at the registered office of
the Trust and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder for the
duration of the meeting. The original share transfer books shall
be prima facie evidence as to who are the shareholders entitled
to examine such list or transfer books or to vote at any meeting
of shareholders. Failure to comply with this Section 2.6 with
respect to any meeting of shareholders shall not affect the
validity of any action taken at such meeting.
2.7 Quorum. The holders of a majority of the shares
entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the shareholders for
the transaction of business, except as otherwise provided by law
or by the Declaration of Trust. If, however, such quorum shall
not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote at such meeting, present in
person or represented by proxy, shall have the power to adjourn
the meeting from time to time without notice other than
announcement at the meeting until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which
might have been transacted at the meeting as originally convened.
The shareholders present at a duly organized meeting at which a
quorum was present may continue to transact business until
adjournment notwithstanding the withdrawal of enough shareholders
to leave less than a quorum present, provided that there remain
at such meeting the holder or holders of at least one-third (1/3)
of the shares issued and outstanding and entitled to vote
thereof, present in person or represented in the manner specified
above. A holder of a share shall be treated as being present at a
meeting if the holder of such share is (i) present in person at
the meeting or (ii) represented at the meeting by a valid proxy,
whether the instrument granting such proxy is marked as casting a
vote or abstaining, is left blank or does not empower such proxy
to vote with respect to some or all matters to be voted upon at
the meeting.
2.8 Organization. (a) The Chief Executive Officer, if
one shall be elected, shall preside at all meetings of the
shareholders. In the absence of the Chief Executive Officer or
should one not be elected, the President or, in his absence, a
Vice President shall preside. In the absence of all of these
officers, any shareholder or the duly appointed proxy of any
shareholder may call the meeting to order and a chairman shall be
elected from among the shareholders present. Notwithstanding the
foregoing, the Trust Managers may appoint any Trust Manager to
preside over any meeting of shareholders. The presiding officer
shall fix the agenda for the meeting, shall conduct all aspects
of the meeting and shall establish and interpret the rules of
order for the conduct of the meeting.
(b) The Trust Managers may appoint any person to act as
secretary of any meeting of the shareholders.
2.9 Proxies. (a) At any meeting of the shareholders,
every shareholder entitled to vote at such meeting shall be
entitled to vote in person or by proxy executed in writing by
such shareholder or by his duly authorized attorney-in-fact.
Proxies shall be filed with the Secretary or Trust Managers
immediately prior to or after the meeting has been called to
order.
(b) No proxy shall be valid after eleven (11) months from
the date of its execution unless such proxy otherwise provides.
(c) A proxy shall be revocable unless the proxy form
conspicuously states that the proxy is irrevocable and the proxy
is coupled with an interest but in no event shall it remain
irrevocable for a period of more than eleven (11) months. A
proxy which is revocable as aforesaid may be revoked at any time
by filing with the Secretary an instrument revoking it or a duly
executed proxy bearing a later date. Any revocable proxy which is
not so revoked shall, subject to paragraph (b) above, continue in
full force and effect.
(d) In the event that any instrument in writing shall
designate two (2) or more persons to act as proxies, a majority
of such persons present at the meeting or, if only one shall be
present, then that one, shall have and may exercise all of the
powers conferred by such written instrument upon all the persons
so designated unless the instrument shall otherwise provide.
2.10 Voting of Shares. Except as otherwise provided by
law, the Declaration of Trust or these Bylaws, each shareholder
shall be entitled at each meeting of shareholders to one (1) vote
on each matter submitted to a vote at such meeting for each share
having voting rights registered in his name on the books of the
Trust at the time of the closing of the share transfer books (or
at the record date) for such meeting. When a quorum is present
at any meeting (and notwithstanding the subsequent withdrawal of
enough shareholders to leave less than a quorum present) in
accordance with Section 2.7 of these Bylaws, the votes of holders
of a majority of the shares entitled to vote, present in person
or represented by proxy, shall decide any matter submitted to
such meeting, unless the matter is one upon which by law or by
express provision of the Declaration of Trust or of these Bylaws
the vote of a greater number is required, in which case the vote
of such greater number shall govern and control the decision of
such matter. The provisions of this Section 2.10 will govern
with respect to all votes of shareholders except as otherwise
provided for in these Bylaws or in the Declaration of Trust or as
may otherwise be required by the Texas Real Estate Investment
Trust Act, as amended (the "Texas REIT Act").
2.11 Voting of Shares by Certain Holders. (a) Shares
standing in the name of another business organization, domestic
or foreign, may be voted by such officer, agent or proxy as the
organizational documents of such organization may authorize or,
in the absence of such authorization, as may be determined by the
governing body of such organization. When any foreign business
organization without a permit to do business in the State of
Texas lawfully owns shares of the Trust, the foreign business
organization may vote those shares and participate in the
management and control of the business and affairs of the Trust,
as other shareholders, subject to all laws and rules governing
the Trust, including the provisions of the antitrust laws of the
State of Texas.
(b) Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name so long as such
shares forming a part of an estate are in the possession and form
a part of the estate being served by him. Shares standing in the
name of a trustee may be voted by him, either in person or by
proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name as trustee.
(c) Shares standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into his name if authority to do so is contained in an
appropriate order of the court by which such receiver was
appointed.
(d) A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred.
2.12 Election of Trust Managers. At each election of
Trust Managers, each shareholder entitled to vote at such
election shall, unless otherwise provided by the Declaration of
Trust or by applicable law, have the right to vote the number of
shares owned by him for as many persons as there are to be
elected and for whose election he has a right to vote. Unless
otherwise provided by the Declaration of Trust, no shareholder
shall have the right or be permitted to cumulate his votes on any
basis.
2.13 Telephone Meetings. Shareholders may participate in
and hold a meeting of the shareholders by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a
person participates in the 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.
2.14 Action Without Meeting. Any action required by any
provision of law or of the Declaration of Trust or these Bylaws
to be taken at a meeting of the shareholders or any action which
may be taken at a meeting of the shareholders may be taken
without a meeting if a consent in writing, setting forth the
action so taken, shall be signed by all of the shareholders
entitled to vote with respect to the subject matter thereof, and
such consent shall have the same force and effect as a unanimous
vote of the shareholders. If action is taken with respect to a
particular matter by the shareholders by means of a written
consent, the advance notice of a meeting required by Section 2.4
shall not apply for that action.
2.15 Inspectors and Voting Procedures. (a) The Trust
shall, in advance of any meeting of shareholders, appoint one or
more inspectors to act at the meeting and make a written report
thereof. The Trust may designate one or more persons as
alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate is able to act at a meeting of
shareholders, the person presiding at the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector,
before beginning to discharge his duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the
shares represented at a meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and
ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The date and time of the opening and closing of the
polls for each matter upon which the shareholders will vote at a
meeting shall be announced at the meeting. No ballots, proxies or
votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors after the closing of the polls unless
a court of appropriate jurisdiction, upon application by a
shareholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the inspectors may examine and consider such records or
factors as allowed by the Texas REIT Act.
ARTICLE III
Trust Managers
3.1 Powers and Responsibilities. The business and
affairs of the Trust shall be managed under the direction of its
Trust Managers who may exercise all such powers of the Trust and
do all such lawful acts and things as are not by statute, the
Declaration of Trust or these Bylaws directed or required to be
exercised or done by the shareholders. The enumeration of any
specific power or authority herein shall not be construed as
limiting the aforesaid powers or the general powers or authority
or any other specified power or authority conferred herein upon
the Trust Managers. Among other things, the Trust Managers shall
be responsible for (a) supervising the Trust's relations with the
managers of the Trust's properties, (b) evaluating the capability
and performance of the managers of the Trust's properties, (c)
reviewing the Trust's investment policies, (d) determining that
the fees and expenses of the Trust are reasonable, (e) reviewing
the aggregate borrowings of the Trust, (f) authorizing the
issuance of the shares of the Trust, (g) approving the
acquisition and disposition of real property and interests
therein, (h) ratifying the appointments of independent
accountants for the Trust, and (i) establishing and reviewing
guidelines for leasing and management of the Trust's properties.
3.2 Number and Qualification. There shall at all times
be no less than two (2) nor more than seven (7) Trust Managers
who (subject to Section 3.3) shall be elected annually by the
shareholders. Subject to any limitations specified by law or in
the Declaration of Trust, the number of Trust Managers may be
fixed from time to time by resolution adopted by a majority of
the Trust Managers. No decrease in the number of Trust Managers
shall have the effect of shortening the term of any incumbent
Trust Manager. Trust Managers shall be natural persons, but do
not need to be residents of the State of Texas. Trust Managers
need not be shareholders, must be at least eighteen (18) years of
age, and must not be subject to any legal disability. A majority
of the Trust Managers and a majority of any committee of Trust
Managers shall at all times be Independent Trust Managers;
provided, however if the number of Trust Managers shall be two
(2), only one (1) of such Trust Managers shall be required to be
an Independent Trust Manager. For purposes of these Bylaws, the
term "Independent Trust Manager" shall mean a Trust Manager who
(i) does not perform any services for the Trust (except in the
capacity of a Trust Manager) whether as an agent, advisor,
consultant, employee, property manager or in any other capacity
whatsoever (other than as a Trust Manager), and (ii) is not an
"affiliate" of any person or entity that performs any services
for the Trust (other than as a Trust Manager). The term
"affiliate" as used in these Bylaws means any individual,
corporation, partnership, trust, unincorporated organization,
association or other entity that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is
under common control with any person or entity that performs any
services for the Trust (other than as a Trust Manager).
3.3 Election and Term of Office. The Trust Manager
nominees who have not been previously elected as Trust Managers
by the shareholders of the Trust shall be elected at the annual
meeting of the shareholders (except as provided in Section 3.6)
by the affirmative vote of the holders of two-thirds (2/3) of the
outstanding shares of the Trust. Trust Managers who have been
previously elected as Trust Managers by the shareholders of the
Trust shall be re-elected at the annual meeting of the
shareholders by the affirmative vote of the holders of a majority
of the outstanding shares of the Trust. Each Trust Manager shall
hold office until his successor is elected and qualified, or
until his death, resignation or removal in the manner provided in
these Bylaws. Notwithstanding anything in these Bylaws to the
contrary, any Trust Manager that has been previously elected as a
Trust Manager by the shareholders who is not re-elected by a
majority vote at a subsequent annual meeting shall nevertheless
remain in office until his successor is elected and qualified.
3.4 Nomination of Trust Managers. Only persons who are
nominated in accordance with the following procedures shall be
eligible for election as Trust Managers of the Trust.
Nominations of persons for election as Trust Managers may be made
at any annual meeting of shareholders (a) by or at the direction
of the Trust Managers (or any duly authorized committee thereof)
or (b) any shareholder of the Trust (i) who is a shareholder of
record on the date of the giving of the notice provided for in
this Section 3.4 and on the record date for the determination of
shareholders entitled to vote as such annual meeting and (ii) who
complies with the notice procedures set forth in this Section
3.4.
In addition to any other applicable requirements, for a
nomination to be made by a shareholder, such shareholder must
have given timely notice thereof in proper written form to the
Secretary of the Trust. To be timely, a shareholder's notice to
the Secretary must be delivered to or mailed and received at the
principal offices of the Trust (i) with respect to the Trust's
first annual meeting of shareholders following the adoption of
this bylaw, notice by the shareholder to be timely must be so
received not later than the close of business on the tenth (10th)
day following the day on which public disclosure of the adoption
of this Section 3.4 is first made and (ii) thereafter, not less
than sixty (60) days nor more than ninety (90) days prior to the
date of the applicable annual meeting of shareholders, provided,
however, that in the event that less than seventy (70) days'
notice or prior public disclosure of the date of the meeting is
given or made, notice by the shareholder to be timely must be so
received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the
applicable annual meeting was mailed or such public disclosure of
the date of such annual meeting was made, whichever first occurs.
For purposes of this Section 3.4, the date of a public disclosure
shall include, but not be limited to, the date on which such
disclosure is made in a press release reported by the Dow Jones
News Services, the Associated Press or any comparable national
news service or in a document publicly filed by the Trust with
the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) (or the rules and regulations thereunder) of the
Exchange Act.
To be in proper written form, a shareholder's notice to
the Secretary must set forth (a) as to each person whom the
shareholder proposes to nominate for election as a Trust Manager
(i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the
person, (iii) the number of shares of the Trust that are owned
beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of
Trust Managers pursuant to Section 14 of the Exchange Act and (b)
as to the shareholder giving the notice (i) the name and record
address of such shareholder, (ii) the number of shares of the
Trust that are owned beneficially or of record by such
shareholder, (iii) a description of all arrangements or
understandings between such shareholder and each proposed nominee
and any other person or persons (including their names) pursuant
to which the nomination(s) are to be made by such shareholders,
(iv) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named
in its notice and (v) any other information relating to such
shareholder that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
solicitations of proxies for election of Trust Managers pursuant
to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as a Trust Manager if elected.
No person shall be eligible for election as a Trust
Manager of the Trust unless nominated in accordance with the
procedures set forth in this Section 3.4. If the presiding
officer of the meeting determines that a nomination was not made
in accordance with the foregoing procedures, the presiding
officer shall declare to the meeting that the nomination was
defective and such defective nomination shall be disregarded.
3.5 Resignation. Any Trust Manager may resign at any
time by giving written notice to the remaining Trust Managers.
Such resignation shall take effect at the time specified therein,
and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. A Trust
Manager who has reached the age of seventy-five (75), or who has
been judged incompetent or for whom a guardian or conservator has
been appointed, shall be deemed to have resigned as of the date
of reaching such age, the date of such adjudication or the date
of such appointment.
3.6 Vacancies; Increases. If any or all of the Trust
Managers cease to be Trust Managers hereunder, whether by reason
of resignation, removal, incapacity, death or otherwise, such
event shall not terminate the Trust or affect its continuity.
Until such vacancies are filled, the remaining Trust Manager or
Trust Managers (regardless of number) may exercise the powers of
the Trust Managers hereunder. Vacancies may be filled either by
a majority of the remaining Trust Managers, though less than a
quorum, or by vote of the holders of at least two-thirds (2/3) of
the outstanding shares at an annual or special meeting of the
shareholders. A Trust Manager elected by the Trust Managers to
fill a vacancy shall hold office only until the next annual
election of Trust Managers by the shareholders. A Trust Manager
elected by the shareholders to fill a vacancy shall hold office
until the next annual meeting of shareholders, and until his
successor is elected and qualified. Any Trust Manager elected to
fill a vacancy created by the resignation, removal or death of
any former Trust Manager shall hold office for the unexpired term
of such Trust Manager. Notwithstanding any provision in these
Bylaws to the contrary, any vacancy created by reason of an
increase in number of Trust Managers shall be filled by the
affirmative vote of the majority of the remaining Trust Managers,
though less than a quorum of the full Board of Trust Managers. A
Trust Manager elected to fill a vacancy created by reason of an
increase in the number of Trust Managers shall hold office only
until the next annual election of the Trust Managers by the
shareholders.
3.7 Bond Not Required; Time Commitment. Unless otherwise
required by law, no Trust Manager shall be required to give bond,
surety or security in any jurisdiction for the performance of his
duties or obligations to the Trust. No Trust Manager shall be
required to devote his entire time to the business and affairs of
the Trust.
3.8 Compensation. Trust Managers shall receive
compensation for their services to the Trust as may be determined
from time to time by the Trust Managers. The Trust Managers may
delegate to any committee the power to fix from time to time the
compensation of Trust Managers. Officers of the Trust who also
serve as Trust Managers shall not receive compensation for their
service as Trust Managers.
3.9 Execution of Documents. Each Trust Manager and any
one of them is authorized to execute on behalf of the Trust any
document or instrument of any nature whatsoever, provided that
the execution by the Trust of any such document or instrument
shall have been previously authorized by such action of the Trust
Managers as may be required by statute, the Declaration of Trust
or these Bylaws.
ARTCLE IV
Meetings of the Trust Managers
4.1 Place of Meetings. The Trust Managers of the Trust
may hold their meetings, both regular and special, either within
or without the State of Texas.
4.2 Annual Meeting. The annual meeting of the Trust
Managers shall be held immediately following the adjournment of
the annual meeting of the shareholders and no notice of such
meeting shall be necessary to the Trust Managers in order legally
to constitute the meeting, provided a quorum shall be present, or
they may meet at such time and place as shall be fixed by the
consent in writing of all of the Trust Managers.
4.3 Regular Meetings. Regular meetings of the Trust
Managers, in addition to the annual meetings referred to in
Section 4.2, may be held without notice at such time and place as
shall from time to time be determined by the Trust Managers.
4.4 Special Meetings. Special meetings of the Trust
Managers may be called by the Chief Executive Officer, if one
shall be elected, or by the President, if a Chief Executive
Officer is not elected, on one (1) business day's notice (oral or
written) to each Trust Manager. Special meetings shall be called
by the Chief Executive Officer (if one shall be elected), the
President or the Secretary on like notice on the oral or written
request of any Trust Manager. Neither the purpose of, nor the
business to be transacted at, any special meeting of the Trust
Managers need be specified in the notice or waiver of notice of
such meeting. Attendance of a Trust Manager at a meeting shall
constitute a waiver of notice of such meeting except where a
Trust Manager attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business on the grounds that the meeting is not lawfully
called or convened.
4.5 Quorum and Action. At all meetings of the Trust
Managers, the presence of a majority of the Trust Managers shall
be necessary and sufficient to constitute a quorum for the
transaction of business and the act of a majority of the Trust
Managers at any meeting at which a quorum is present shall be the
act of the Trust Managers unless the act of a greater number is
required by law, the Declaration of Trust or these Bylaws. If a
quorum shall not be present at any meeting of Trust Managers, the
Trust Managers present may adjourn the meeting from time to time
without notice other than announcement at the meeting until a
quorum shall be present. If there are only two Trust Managers,
the presence of both Trust Managers shall be necessary to
constitute a quorum.
4.6 Presumption of Assent to Action. A Trust Manager who
is present at a meeting of the Trust Managers at which action on
any Trust matter is taken shall be presumed to have assented to
the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written
dissent to such action with the secretary of the meeting before
the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Trust immediately after
the adjournment of the meeting. Such right to dissent shall not
apply to a Trust Manager who voted in favor of such action.
4.7 Telephone Meetings. Trust Managers may participate
in and hold a meeting of the Trust Managers by means of
conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other. Participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting, except where a
person participates in the 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.
4.8 Action Without Meeting. Any action required or
permitted to be taken at a meeting of the Trust Managers may be
taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by all the Trust Managers, and
such consent shall have the same force and effect as a unanimous
vote at a meeting.
4.9 Minutes. The Trust Managers shall keep regular
minutes of their proceedings. The minutes shall be placed in the
minute book of the Trust.
4.10 Interest of Trust Managers. With respect to the
actions of the Trust Managers, Trust Managers who have any direct
or indirect interest in connection with any matter being acted
upon may be counted for all quorum purposes under this Article
IV.
4.11 Right of Trust Managers and Officers to Own Shares or
Other Property and to Engage in Other Businesses. Any Trust
Manager or officer of the Trust may acquire, own, hold and
dispose of shares of the Trust for his individual account, and
may exercise all rights of a shareholder to the same extent and
in the same manner as if he were not a Trust Manager or officer
of the Trust. Except as provided specifically to the contrary in
a written agreement with the Trust, any Trust Manager may, in a
capacity other than that of Trust Manager, have business
interests and engage in business activities similar to or in
addition to those relating to the Trust, which interests or
activities may be similar to and competitive with those of the
Trust and may include the acquisition, syndication, holding,
management, development, operation or disposition, for his own
account or for the account of others, of interests in mortgages,
interests in real property, or interests in entities engaged in
the real estate business. Except as provided specifically to the
contrary in a written agreement with the Trust, each Trust
Manager shall be free of any obligation to present to the Trust
any investment opportunity which comes to him in any capacity
other than solely as Trust Manager of the Trust, even if such
opportunity is of a character which, if presented to the Trust,
could be exploited by the Trust. Subject to the provisions of
Article III hereof, any Trust Manager or officer of the Trust may
be a trustee, officer, director, shareholder, partner, member,
advisor or employee of, or otherwise have a direct or indirect
interest in any person who may be engaged to render advice or
services to the Trust, and may receive compensation from such
person as well as compensation as Trust Manager or officer or
otherwise hereunder.
4.12 Transactions Between Trust Managers and the Trust.
Except as otherwise provided by the Declaration of Trust or these
Bylaws, and in the absence of fraud, a contract, act or other
transaction, between the Trust and any other person, or in which
the Trust is interested, shall be valid and no Trust Manager or
officer of the Trust shall have any liability as a result of
entering into any such contract, act or transaction, even though
(a) one or more of the Trust Managers, directly or indirectly is
interested in or connected with, or is a trustee, partner,
director, shareholder, member, employee, officer or agent of such
other person, or (b) one or more of the Trust Managers,
individually or jointly with others, is a party to, or directly
or indirectly is interested in, or connected with, such contract,
act or transaction, provided that (i) such interest or connection
is disclosed in reasonable detail or known to the Trust Managers
and thereafter the Trust Managers authorize or ratify such
contract, act or other transaction by the affirmative vote of a
majority of the Trust Managers who are not interested in the
transaction, even though the number of disinterested Trust
Managers is less than a quorum, (ii) such interest or connection
is disclosed in reasonable detail or known to the shareholders,
and thereafter such contract, act or transaction is approved by
the shareholders holding a majority of the shares then
outstanding and entitled to vote thereon, or (iii) the contract,
act or transaction is fair as to the Trust as of the time the
contract, act or transaction is authorized, approved or ratified
by the Trust Mangers or the shareholders. Interested Trust
Managers may be counted in determining the presence of a quorum
at a meeting of the Trust Managers that authorizes the contract,
act or transaction.
4.13 Persons Dealing with Trust Managers or Officers. Any
act of the Trust Managers or officers of the Trust purporting to
be done in their capacity as such shall, as to any person dealing
with such Trust Managers or officers, conclusively be deemed to
be within the purposes of the Trust and within the powers of the
Trust Managers or officers. No person dealing with the Trust
Managers or any of them or with the officers of the Trust or any
of them, shall be bound to see to the application of any funds or
property passing into their hands or control. The receipt of the
Trust Managers or any of the officers of the Trust of moneys or
other consideration shall be binding upon the Trust.
4.14 Reliance. Trust Managers and officers of the Trust
shall not be liable for any claims or damages that may result
from their acts in the discharge of any duty imposed or power
conferred upon them by the Trust, if, in the exercise of ordinary
care, they acted in good faith and in reliance upon the written
opinion of an attorney for the Trust. In discharging their
duties, Trust Managers and officers of the Trust, when acting in
good faith and exercising ordinary care, may rely upon financial
statements of the Trust, stated in a written report by an
independent certified public accountant, to fairly present the
financial position of the Trust. The Trust Managers and officers
of the Trust may rely upon any instrument or other document
believed by them to be genuine.
4.15 Liability of Trust Managers. No Trust Manager of the
Trust shall be liable to the Trust for any act, omission, loss,
damage or expense arising from the performance of his duty to the
Trust, except to the extent specifically required by statute, the
Declaration of Trust or these Bylaws.
ARTCLE V
Committees of the Trust Managers
5.1 Membership and Authorities. The Trust Managers, by
resolution adopted by a majority of the Trust Managers, may
designate one (1) or more Trust Managers to constitute such
committees as the Trust Managers may determine, including, but
not limited to, a Compensation Committee and an Audit Committee,
each of which committees to the extent provided in such
resolution shall have and may exercise all of the authority of
the Trust Managers in the business and affairs of the Trust,
except in those cases where the authority of the Trust Managers
is specifically denied to the committee or committees by the
Trust Managers, applicable law, the Declaration of Trust or these
Bylaws. No committee shall have the power to alter or to repeal
any resolution adopted by the Trust Managers. The designation of
a committee and the delegation thereto of authority shall not
operate to relieve the Trust Managers, or any member thereof, of
any responsibility imposed upon them by law. The members of each
such committee shall serve at the pleasure of the Trust Managers.
A majority of the members of each committee shall be Independent
Trust Managers; provided, however, that if a committee shall
consist of two (2) members, only one (1) of such members shall be
required to be an Independent Trust Manager.
5.2 Minutes and Rules of Procedure. Each committee
designated by the Trust Managers shall keep regular minutes of
its proceedings and report the same to the Trust Managers when
requested by the Trust Managers. Subject to the provisions of
these Bylaws, the members of any committee may fix such
committee's own rules of procedure.
5.3 Vacancies. The Trust Managers shall have the power
at any time to fill vacancies in, to change the membership of, or
to dissolve, any committee.
5.4 Telephone Meetings. Members of any committee
designated by the Trust Managers may participate in or hold a
meeting by use of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant
to this Section shall constitute presence in person at such
meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully called
or convened.
5.5 Action Without Meeting. Any action required or
permitted to be taken at a meeting of any committee designated by
the Trust Managers may be taken without a meeting if a consent in
writing, setting forth the action so taken, is signed by all the
members of the committee, and such consent shall have the same
force and effect as a unanimous vote at a meeting.
ARTCLE VI
Officers
6.1 Number. The officers of the Trust shall include a
President and a Secretary. The Trust Managers may also elect a
Chief Executive Officer, one (1) or more Vice Presidents, a
Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers. One (1) person may hold any two (2) or
more of these offices.
6.2 Election, Term of Office and Qualification. The
Trust Managers shall elect officers, none of whom need be a Trust
Manager, at their annual meeting after each annual meeting of
shareholders. Each officer so elected shall hold office until his
successor shall have been duly elected and qualified or until his
death, resignation or removal in the manner hereinafter provided.
6.3 Subordinate Officers. The Trust Managers may appoint
such other officers and agents as it shall deem necessary who
shall hold their offices for such terms, have such authority and
perform such duties as the Trust Managers may from time to time
determine. The Trust Managers may delegate to any committee or
officer the power to appoint any such subordinate officer or
agent. No subordinate officer appointed by any committee or
superior officer as aforesaid shall be considered an officer of
the Trust, the officers of the Trust being limited to the
officers elected or appointed by the Trust Managers.
6.4 Resignation. Any officer may resign at any time by
giving written notice thereof to the Trust Managers or to the
President or Secretary of the Trust. Any such resignation shall
take effect at the time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
6.5 Removal. Any officer elected or appointed by the
Trust Managers may be removed by the Trust Managers at any time
with or without cause by majority vote of the Trust Managers. Any
other officer may be removed at any time with or without cause by
the Trust Managers or by any committee or superior officer upon
whom such power of removal may be conferred by the Trust
Managers. The removal of any officer shall be without prejudice
to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of
itself create any contract rights.
6.6 Vacancies; New Offices. A vacancy in any existing
office or any vacancy resulting from the creation of a new office
shall be filled for the unexpired portion of the term by the
Trust Managers, but in case of a vacancy occurring in an office
filled by a committee or superior officer in accordance with the
provisions of Section 6.3, such vacancy may be filled by such
committee or superior officer.
6.7 The Chief Executive Officer. The Chief Executive
Officer, if one shall be elected, may preside at all meetings of
the shareholders and Trust Managers, shall be an ex officio
member of all standing committees, shall have general and active
management of the business of the Trust, shall have the general
supervision and direction of all other officers of the Trust with
full power to see that their duties are properly performed and
shall see that all orders and resolutions of the Trust Managers
are carried into effect. He may sign, with any other proper
officer, certificates for shares of the Trust and any deeds,
bonds, mortgages, contracts and other documents which the Trust
Managers have authorized to be executed, except where required by
law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the
Trust Managers or these Bylaws, to some other officer or agent of
the Trust. In addition, the Chief Executive Officer shall perform
whatever duties and shall exercise all powers that are given to
him by the Trust Managers.
6.8 The President. If no Chief Executive Officer shall
be elected, the President shall be the chief executive officer of
the Trust and shall have the powers and duties of the Chief
Executive Officer as set forth in Section 6.7. In the absence of
a Chief Executive Officer, the President may preside at all
meetings of the shareholders and Trust Managers. He may sign,
with any other proper officer, certificates for shares of the
Trust and any deeds, bonds, mortgages, contracts and other
documents which the Trust Managers have authorized to be
executed, except where required by law to be otherwise signed and
executed and except where the signing and execution thereof shall
be expressly delegated by the Trust Managers or these Bylaws to
some other officer or agent of the Trust. In addition, the
President shall perform whatever duties and shall exercise
whatever powers given to him by the Trust Managers or by the
Chief Executive Officer, if one shall be elected.
6.9 The Vice Presidents. The Vice Presidents shall
perform such duties as are given to them by these Bylaws and as
may from time to time be assigned to them by the Trust Managers,
by the Chief Executive Officer, (if one shall be elected), or by
the President, (if a Chief Executive Officer is not elected), and
may sign, with any other proper officer, certificates for shares
of the Trust. At the request of the President, or in his absence
or disability, the Vice President designated by the President (or
in the absence of such designation, the Vice President who has
served the longest term of office with the Trust), shall perform
the duties and exercise the powers of the President.
6.10 The Secretary. The Secretary, when available, shall
attend all meetings of the Trust Managers and all meetings of the
shareholders and shall perform like duties for the standing
committees when requested by such committee. The Secretary shall
record all votes and the minutes of all proceedings in the minute
book of the Trust unless the Trust Managers designate another
person (who need not be an officer, employee or Trust Manager of
the Trust) to perform such tasks. The Secretary shall give, or
cause to be given, notice of all meetings of the shareholders and
special meetings of the Trust Managers as required by law or
these Bylaws, be custodian of the Trust records and have general
charge of the share books of the Trust and shall perform such
other duties as may be prescribed by the Trust Managers, by the
Chief Executive Officer, if one shall be elected, or by the
President, if a Chief Executive Officer is not elected, under
whose supervision he shall be. The Secretary may sign, with any
other proper officer, certificates for shares of the Trust and
shall keep in safe custody the seal of the Trust, and, when
authorized by the Trust Managers, affix the same to any
instrument requiring it and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or
an Assistant Secretary.
6.11 Assistant Secretaries. The Assistant Secretaries
shall perform such duties as are given to them by these Bylaws or
as may from time to time be assigned to them by the Trust
Managers or by the Secretary. At the request of the Secretary, or
in his absence or disability, the Assistant Secretary designated
by the Secretary (or in the absence of such designation the
Assistant Secretary who has served the largest term of office
with the Trust), shall perform the duties and exercise the powers
of the Secretary.
6.12 The Treasurer. The Treasurer shall have the custody
and be responsible for all Trust funds and securities and shall
keep full and accurate accounts of receipts and disbursements in
books belonging to the Trust and shall deposit all monies and
other valuable effects in the name and to the credit of the Trust
in such depositories as may be designated by the Trust Managers.
The Treasurer shall disburse the funds of the Trust as may be
ordered by the Trust Managers, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer,
if one shall be elected, the President and the Trust Managers,
whenever they may require it, an account of all his transactions
as Treasurer and of the financial condition of the Trust. The
Treasurer may sign, with any other proper officer, certificates
for shares of the Trust.
6.13 Assistant Treasurers. The Assistant Treasurers shall
perform such duties as are given to them by these Bylaws or as
may from time to time be assigned to them by the Trust Managers
or by the Treasurer. At the request of the Treasurer, or in his
absence or disability, the Assistant Treasurer designated by the
Treasurer (or in the absence of such designation, the Assistant
Treasurer who has served the longest term of office with the
Trust), shall perform the duties and exercise the powers of the
Treasurer.
6.14 Treasurer's Bond. If required by the Trust Managers,
the Treasurer and any Assistant Treasurer shall give the Trust a
bond in such sum and with such surety or sureties as shall be
satisfactory to the Trust Managers for the faithful performance
of the duties of his office and for the restoration to the Trust,
in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging
to the Trust.
6.15 Salaries. The salary or other compensation of
officers shall be fixed from time to time by the Trust Managers.
The Trust Managers may delegate to any committee the power to fix
from time to time the salary or other compensation of officers,
subordinate officers and agents appointed in accordance with the
provisions of these Bylaws.
6.16 Execution of Documents. Each officer of the
Trust and any one of them is authorized to execute on behalf of
the Trust any document or instrument of any nature whatsoever,
provided that the execution by the Trust of any such document or
instrument shall have been previously authorized by such action
of the Trust Managers as may be required by statute, the
Declaration of Trust or these Bylaws.
ARTCLE VII
Trust Shares
7.1 Share Certificates. (a) The certificates
representing shares of beneficial interest of the Trust shall be
in such form, not inconsistent with statutory provisions and the
Declaration of Trust, as shall be approved by the Trust Managers.
The certificates shall be signed by the Chief Executive Officer,
if one shall be elected, the President or a Vice President and a
Secretary or Assistant Secretary, or such other or additional
officers as may be prescribed from time to time by the Trust
Managers. The signatures of such officer or officers upon a
certificate may be facsimiles if the certificate is countersigned
by a transfer agent or registered by a registrar, either of which
is other than the Trust itself or an employee of the Trust. In
case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued with
the same effect as if he were such officer at the date of its
issuance.
(b) In the event the Trust has, by its Declaration of
Trust, provided for the preemptive right of shareholders, there
shall be set forth on the face or back of the certificates, which
the Trust shall issue to represent shares of beneficial interest,
such legends or statements, if any, as shall be required by
applicable law or the Declaration of Trust or as may be approved
by the Trust Managers.
(c) All certificates shall be consecutively numbered and
the name of the person owning the shares represented thereby,
with the number of such shares and the date of issue, shall be
entered on the Trust's books.
(d) All certificates surrendered to the Trust shall be
canceled, and, except as provided in Section 7.2 with respect to
lost, destroyed or mutilated certificates, no new certificate
shall be issued until the former certificate for the same number
of shares has been surrendered and canceled.
7.2 Lost Certificates, etc. The Trust Managers may
direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Trust
alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of
stock to be lost or destroyed. In authorizing such issue of a new
certificate or certificates, the Trust Managers may, in their
discretion and as a condition precedent to the issue thereof,
require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same
in such manner as the Trust Managers shall require and/or
indemnify the Trust as the Trust Managers may prescribe.
7.3 Transfer of Shares. Subject to Article IX
hereof and any other restrictions upon transfer, upon surrender
to the Trust or the transfer agent of the Trust of a certificate
for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer and satisfaction
of the Trust that the requested transfer complies with the
provisions of applicable state and federal laws and regulations,
the Declaration of Trust and any agreements to which the Trust is
a party, the Trust shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the
transaction upon its books.
7.4 Ownership of Shares. The Trust shall be entitled to
treat and recognize the holder of record of any share or shares
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 shares 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 Texas.
7.5 Closing of Transfer Books. For the purpose of
determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled
to receive a distribution by the Trust (other than a distribution
involving a purchase or redemption by the Trust of its own
shares) or a share dividend, or in order to make a determination
of shareholders for any other proper purpose, the Trust Managers
may provide that the share transfer books shall be closed for a
stated period but not to exceed, in any case, sixty (60) days. If
the share transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least
ten (10) days immediately preceding such meeting. In lieu of
closing the share transfer books, the Trust Managers may fix in
advance a date as the record date for any such determination of
shareholders, and the determination of shareholders on such
record date shall apply with respect to the particular action
requiring the same notwithstanding any transfer of shares on the
books of the Trust after such record date. The record date for
any such determination of shareholders may not be more than sixty
(60) days and, in the case of a meeting of shareholders, not less
than ten (10) days, before the date on which the particular
action requiring the determination of shareholders is to be
taken.
7.6 Dividends. Except as otherwise set forth in the
Declaration of Trust or provided by law, the Trust Managers may,
from time to time, declare, and the Trust may pay, dividends on
its outstanding shares in the manner and upon the terms and
conditions provided by the Declaration of Trust and by law, such
dividends to be paid in cash or in property or in shares of
beneficial interest of the Trust, except no dividends shall be
paid if, after giving effect to the dividend, the Trust would be
insolvent, or the dividend exceeds the surplus of the Trust.
7.7 Surplus and Reserves. By resolution, the Trust
Managers may create such reserve or reserves of the Trust out of
its surplus or designate or allocate any part or all of its
surplus in any manner as the Trust Managers from time to time, in
their absolute discretion, determine to be proper to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Trust or for such other purpose
as the Trust Managers shall determine to be beneficial to the
interest of the Trust. The Trust Managers may modify or abolish
any such reserve, designation or allocation in the manner in
which it was created.
7.8 Repurchase of Shares. Upon resolution adopted by the
Trust Managers, the Trust shall be entitled to purchase, directly
or indirectly, its own shares of beneficial interest, provided
that following such repurchase the Trust would continue to be
able to pay its debts as they become due in the ordinary course
of its business.
ARTICLE VIII
Indemnification
8.1 Definitions. In this Article:
(a) "Indemnitee" means (i) any present or former Trust
Manager or officer of the Trust, (ii) any person who while
serving in any of the capacities referred to in clause (i) hereof
served at the Trust's request as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar
functionary of another real estate investment trust or foreign or
domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise,
and (iii) any person nominated or designated by (or pursuant to
authority granted by) the Trust Managers or any committee thereof
to serve in any of the capacities referred to in clauses (i) or
(ii) hereof.
(b) "Official Capacity" means (i) when used with respect to
a Trust Manager, the office of Trust Manager of the Trust and
(ii) when used with respect to a person other than a Trust
Manager, the elective or appointive office of the Trust held by
such person or the employment or agency relationship undertaken
by such person on behalf of the Trust, but in each case does not
include service for any other real estate investment trust or
foreign or domestic corporation or any partnership, joint
venture, sole proprietorship, trust, employee benefit plan or
other enterprise.
(c) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such
an action, suit or proceeding, and any inquiry or investigation
that could lead to such an action, suit or proceeding.
8.2 Indemnification. The Trust shall indemnify every
Indemnitee against all judgments, penalties (including excise and
similar taxes), fines, amounts paid in settlement and reasonable
expenses actually incurred by the Indemnitee in connection with
any Proceeding in which he was, is or is threatened to be named
defendant or respondent, or in which he was or is a witness
without being named a defendant or respondent, by reason, in
whole or in part, of his serving or having served, or having been
nominated or designated to serve, in any of the capacities
referred to in Section 8.l(a), if it is determined in accordance
with Section 8.4 that the Indemnitee (a) conducted himself in
good faith, (b) reasonably believed, in the case of conduct in
his Official Capacity, that his conduct was in the Trust's best
interests and, in all other cases, that his conduct was at least
not opposed to the Trust's best interests, and (c) in the case of
any criminal proceeding, had no reasonable cause to believe that
his conduct was unlawful; provided, however, that except as
provided below, no indemnification shall be made under this
Section 8.2 in respect of any Proceeding in which such Indemnitee
shall have been (x) found liable on the basis that personal
benefit was improperly received by him, whether or not the
benefit resulted from an action taken in the Indemnitee's
Official Capacity, or (y) found liable to the Trust. In the
event that an Indemnitee is found liable to the Trust or is found
liable on the basis that personal benefit was improperly received
by the Indemnitee the indemnification (i) is limited to
reasonable expenses actually incurred by the Indemnitee in
connection with the Proceeding and (ii) shall not be made in
respect of any Proceeding in which the Indemnitee shall have been
found liable for willful or intentional misconduct in the
performance of his duty to the Trust. The termination of any
Proceeding by judgment, order, settlement or conviction, or on a
plea of nolo contendere or its equivalent, is not of itself
determinative that the Indemnitee did not meet the requirements
set forth in clauses (a), (b) or (c) in the first sentence of
this Section 8.2. An Indemnitee shall be deemed to have been
found liable in respect of any claim, issue or matter only after
the Indemnitee shall have been so adjudged by a court of
competent jurisdiction after exhaustion of all appeals therefrom.
Reasonable expenses shall include, without limitation, all court
costs and all fees and disbursements of attorneys for the
Indemnitee.
8.3 Successful Defense. Without limitation of Section
8.2 and in addition to the indemnification provided for in
Section 8.2, the Trust shall indemnify every Indemnitee against
reasonable expenses incurred by such person in connection with
any Proceeding in which he is a witness or a named defendant or
respondent because he served in any of the capacities referred to
in Section 8.l(a), if such person has been wholly successful, on
the merits or otherwise, in defense of the Proceeding.
8.4 Determinations. Any indemnification under Section 8.2
(unless ordered by a court of competent jurisdiction) shall be
made by the Trust only upon a determination that indemnification
of the Indemnitee is proper in the circumstances because he has
met the applicable standard of conduct. Such determination shall
be made (a) by the Trust Managers by a majority vote of a quorum
consisting of Trust Managers who, at the time of such vote, are
not named defendants or respondents in the Proceeding; (b) if
such a quorum cannot be obtained, then by a majority vote of a
committee of the Trust Managers, duly designated to act in the
matter by a majority vote of all Trust Managers (in which Trust
Managers who are named defendants or respondents in the
Proceeding may vote), such committee to consist solely of two (2)
or more Trust Managers who, at the time of the committee vote,
are not named defendants or respondents in the Proceeding; (c) by
special legal counsel selected by the Trust Managers or a
committee thereof by vote as set forth in clauses (a) or (b) of
this Section 8.4 or, if the requisite quorum of all of the Trust
Managers cannot be obtained and such committee cannot be
established, by a majority vote of all of the Trust Managers (in
which Trust Managers who are named defendants or respondents in
the Proceeding may participate); or (d) by the shareholders in a
vote that excludes the shares held by Trust Managers that are
named defendants or respondents in the Proceeding. Determination
as to reasonableness of expenses shall be made in the same manner
as the determination that indemnification is permissible, except
that if the determination that indemnification is permissible is
made by special legal counsel, determination as to reasonableness
of expenses must be made in the manner specified in clause (c) of
the preceding sentence for the selection of special legal
counsel. In the event a determination is made under this Section
8.4 that the Indemnitee has met the applicable standard of
conduct as to some matters but not as to others, amounts to be
indemnified may be reasonably prorated.
8.5 Advancement of Expenses. Reasonable expenses
(including court costs and attorneys' fees) incurred by an
Indemnitee who was or is a witness or was, is or is threatened to
be made a named defendant or respondent in a Proceeding shall be
paid or reimbursed by the Trust at reasonable intervals in
advance of the final disposition of such Proceeding, and without
making any of the determinations specified in Section 8.4, after
receipt by the Trust of (a) a written affirmation by such
Indemnitee of his good faith belief that he has met the standard
of conduct necessary for indemnification by the Trust under this
Article VIII and (b) a written undertaking by or on behalf of
such Indemnitee to repay the amount paid or reimbursed by the
Trust if it shall ultimately be determined that he is not
entitled to be indemnified by the Trust as authorized in this
Article VIII. Such written undertaking shall be an unlimited
obligation of the Indemnitee but need not be secured and it may
be accepted without reference to financial ability to make
repayment. Notwithstanding any other provision of this Article
VIII, the Trust may pay or reimburse expenses incurred by an
Indemnitee in connection with his appearance as a witness or
other participation in a Proceeding at a time when he is not
named a defendant or respondent in the Proceeding.
8.6 Employee Benefit Plans. For purposes of this Article
VIII, the Trust shall be deemed to have requested an Indemnitee
to serve an employee benefit plan whenever the performance by him
of his duties to the Trust also imposed or imposes duties on or
otherwise involved or involves services by him to the plan or
participants or beneficiaries of the plan. Excise taxes assessed
on an Indemnitee with respect to an employee benefit plan
pursuant to applicable law shall be deemed fines. Action taken or
omitted by an Indemnitee with respect to an employee benefit plan
in the performance of his duties for a purpose reasonably
believed by him to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Trust.
8.7 Other Indemnification and Insurance. The
indemnification provided by this Article VIII shall (a) not be
deemed exclusive of, or to preclude, any other rights to which
those seeking indemnification may at any time be entitled under
the Trust's Declaration of Trust, any law, agreement or vote of
shareholders or disinterested Trust Managers, or otherwise, or
under any policy or policies of insurance purchased and
maintained by the Trust on behalf of any Indemnitee, both as to
action in his Official Capacity and as to action in any other
capacity, (b) continue as to a person who has ceased to be in the
capacity by reason of which he was an Indemnitee with respect to
matters arising during the period he was in such capacity, and
(c) inure to the benefit of the heirs, executors and
administrators of such a person.
8.8 Notice. Any indemnification of or advance of
expenses to an Indemnitee in accordance with this Article VIII
shall be reported in writing to the shareholders of the Trust
with or before the notice or waiver of notice of the next
shareholders' meeting or with or before the next submission to
shareholders of a consent to action without a meeting and, in any
case, within the twelve-month period immediately following the
date of the indemnification or advance.
8.9 Construction. The indemnification provided by
this Article VIII shall be subject to all valid and applicable
laws, including, without limitation, the Texas REIT Act, and, in
the event this Article VIII or any of the provisions hereof or
the indemnification contemplated hereby are found to be
inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control and this Article VIII shall be
regarded as modified accordingly, and, as so modified, shall
continue in full force and effect.
8.10 Continuing Offer, Reliance, etc. The provisions of
this Article VIII (a) are for the benefit of, and may be enforced
by, each Indemnitee of the Trust, the same as if set forth in
their entirety in a written instrument duly executed and
delivered by the Trust and such Indemnitee and (b) constitute a
continuing offer to all present and future Indemnities. The
Trust, by its adoption of these Bylaws, (x) acknowledges and
agrees that each Indemnitee of the Trust has relied upon and will
continue to rely upon the provisions of this Article VIII in
becoming, and serving in any of the capacities referred to in
Section 8.1 hereof, (y) waives reliance upon, and all notices of
acceptance of, such provisions by such Indemnities and (z)
acknowledges and agrees that no present or future Indemnitee
shall be prejudiced in his right to enforce the provisions of
this Article VIII in accordance with their terms by any act or
failure to act on the part of the Trust.
8.11 Effect of Amendment. No amendment, modification or
repeal of this Article VIII or any provision of this Article VIII
shall in any manner terminate, reduce or impair the right of any
past, present or future Indemnities to be indemnified by the
Trust, nor the obligation of the Trust to indemnify any such
Indemnities, under and in accordance with the provisions of this
Article VIII as in effect immediately prior to such amendment,
modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such
amendment, modification or repeal, regardless of when such claims
may be asserted.
ARTICLE IX
Limitations on Transfer and Ownership
9.1 Limitations on Transfer. The shares (other than
Excess Shares) shall be freely transferable by the record owner
thereof, subject to the provisions of Section 9.2 hereof and
provided that any purported acquisition or transfer of shares
that would result in (a) the shares of beneficial interest being
owned directly or indirectly by fewer than 100 persons
(determined without reference to the rules of attribution under
Section 544 of the Internal Revenue Code of 1986, as amended (the
"Code")) or (b) the Trust being "closely held" within the meaning
of Section 856(h) of the Code shall be void an initio. Subject
to the provisions of Section 9.5 hereof, any purported transfer
of shares that, if effective, would result in a violation of
Section 9.2 hereof (unless excepted from the application of such
Section 9.2 pursuant to Section 9.6 hereof) shall be void an
initio as to the transfer of that number of shares that would
otherwise be beneficially owned by a shareholder in violation of
Section 9.2 hereof, the intended transferee of such shares shall
acquire no rights therein and the transfer of such shares will
not be reflected on the Trust's stock record books. For purposes
of this Article IX, a "transfer" of shares shall mean any sale,
transfer, gift, hypothecation, pledge, assignment or other
disposition, whether voluntary or involuntary, by operation of
law or otherwise.
9.2 Limitations on Ownership. Commencing on February
1, 1994, except as provided by Section 9.6 hereof, no person
shall at any time directly or indirectly acquire or hold
beneficial ownership of shares with an aggregate value in excess
of 9.8% of the aggregate value of all outstanding shares (the
"Ownership Limit").
For purposes of this Article IX, (a) the value of any
shares shall be reasonably determined in the manner established
by the Trust Managers and (b) a person (which includes natural
persons, corporations, trusts, partnerships and other entities)
shall be deemed to be the beneficial owner of the shares that
such person (i) actually owns, (ii) constructively owns after
applying the rules of Section 544 of the Code, as modified in the
case of a REIT by Section 856(h) of the Code, and (iii) has the
right to acquire upon exercise of outstanding rights, options and
warrants, and upon conversion of any securities convertible into
shares, if any.
9.3 Shareholder Information. Each shareholder shall,
upon demand of the Trust, disclose to the Trust in writing such
information with respect to his or its direct and indirect
beneficial ownership of shares as the Trust Managers in their
discretion deem necessary or appropriate in order that the Trust
may fully comply with all provisions of the Code relating to
REITs and all regulations, rulings and cases promulgated or
decided thereunder (the "REIT Provisions") and to comply with the
requirements of any taxing authority or governmental agency. All
persons who have acquired or who hold, directly or indirectly,
beneficial ownership of shares with an aggregate value in excess
of 9.8% of the aggregate value of all outstanding shares must
disclose in writing such ownership information to the Trust no
later than January 31 of each year.
9.4 Transferee Information. No later than the
fiftieth day prior to any transfer which, if effected, would
result in the intended transferee owning shares in excess of the
Ownership Limit, the intended transferee shall provide to the
Trust Managers an affidavit setting forth the number of shares
already beneficially owned by such intended transferee. In
addition, whenever the Trust Managers deem it reasonably
necessary to protect the tax status of the Trust as a REIT under
the REIT Provisions, the Trust Managers may require a statement
or affidavit from each shareholder setting forth the number of
shares beneficially owned by such shareholder. Subject to the
terms of Section 9.10 hereof, if, in the opinion of the Trust
Managers, any proposed transfer may jeopardize the qualification
of the Trust as a REIT, the Trust Managers shall have the right,
but not the duty, to refuse to permit the transfer of such shares
to the proposed transferee. All contracts for the sale or other
transfer of shares shall be subject to this Section 9.4.
9.5 Excess Shares.
9.5.1 Creation of Excess Shares. If, notwithstand
ing the other provisions contained in this Article IX, at
any time there is a purported transfer of shares or a
change in the capital structure of the Trust (including any
redemption of Excess Shares pursuant to Subsection 9.5.7
hereof) such that any person would beneficially own shares
in excess of the Ownership Limit ("Excess Shares") then,
except as otherwise provided in Section 9.6 hereof, such
shares in excess of the Ownership Limit (rounded up to the
nearest whole share), shall be automatically deemed an
equal number of Excess Shares.
9.5.2 Ownership in Trust. Upon any purported transfer
of shares or change in the capital structure of the Trust
that results in Excess Shares pursuant to Subsection 9.5.1
hereof, such Excess Shares shall be deemed to have been
transferred to the Trust, as trustee of a separate trust
for the exclusive benefit of the person or persons to whom
such Excess Shares can ultimately be transferred without
violating the Ownership Limit. Shares of Excess Shares so
held in trust shall be issued and outstanding shares of the
Trust under the Texas REIT Act. The purported transferee of
Excess Shares shall have no rights in such Excess Shares,
except the right to designate a transferee of its interest
in the trust created under this Subsection 9.5.2 upon the
terms specified in Subsection 9.5.6 hereof. If any of the
restrictions on transfer set forth in this Article IX are
determined to be void, invalid or unenforceable by virtue
of any legal decision, statute, rule or regulation, then
the intended transferee of any Excess Shares may be deemed,
at the option of the Trust, to have acted as an agent on
behalf of the Trust in acquiring the Excess Shares and to
hold the Excess Shares on behalf of the Trust.
9.5.3 Dividend Rights. Excess Shares shall not be
entitled to any dividends. Any dividend or distribution
paid prior to the discovery by the Trust that shares have
been deemed Excess Shares shall be repaid to the Trust upon
demand, and any dividend or distribution declared but
unpaid shall be rescinded as void an initio with respect to
such Excess Shares.
9.5.4 Rights Upon Liquidation. In the event of any
voluntary or involuntary liquidation, dissolution or
winding up of, or any distribution of the assets of, the
Trust, each holder of Excess Shares shall be entitled to
receive, ratably with each other holder of shares of
beneficial interest or Excess Shares, that portion of the
assets of the Trust available for distribution to the
holders of Excess Shares as the number of Excess Shares
held by such holder bears to the total number of shares and
Excess Shares then outstanding. The Trust, as the holder
of all Excess Shares in one or more trusts, or, if the
Trust shall have been dissolved, any trustee appointed by
the Trust prior to its dissolution, shall distribute to
each transferee of an interest in such a trust pursuant to
Subsection 9.5.6 hereof, when determined, any assets
received in any liquidation, dissolution or winding up of,
or any distribution of the assets of, the Trust in respect
of the Excess Shares held in such trust and represented by
the trust interest transferred to such transferee.
9.5.5 Voting Rights. No shareholder may vote any
Excess Shares. The Excess Shares will not be considered
for purposes of any shareholder vote or for purposes of
determining a quorum for such a vote.
9.5.6 Restrictions on Transfer. Excess Shares shall
not be transferable. The purported transferee of any
shares that are deemed Excess Shares pursuant to Subsection
9.5.1 hereof (the "Initial Transferee") may freely
designate a transferee (the "Subsequent Transferee") of the
interest in the trust that represents such Excess Shares,
if (a) the Excess Shares held in the trust and represented
by the trust interest to be transferred would not be Excess
Shares in the hands of the Subsequent Transferee, and (b)
the Initial Transferee does not receive a price for the
trust interest in excess of (i) the price the Initial
Transferee paid for the shares in the purported transfer of
shares that resulted in the Excess Shares represented by
the trust interest or (ii) if the Initial Transferee did
not give value for such shares (e.g., the shares were
received through a gift, devise or other transaction), a
price equal to the aggregate Market Price (as defined in
Subsection 9.5.7 hereof) for all shares that were deemed
Excess Shares on the date of the purported transfer that
resulted in the Excess Shares. No interest in a trust may
be transferred unless the Initial Transferee of such
interest has given advance written notice to the Trust of
the designation of the Subsequent Transferee. Upon the
transfer of an interest in a trust in compliance with this
Subsection 9.5.6, the corresponding Excess Shares that are
represented by the transferred interest in the trust shall
be automatically deemed an equal number of shares of the
same class from which the corresponding Excess Shares were
originally created, such shares shall be transferred of
record to the Subsequent Transferee, and the interest in
the trust representing such Excess Shares shall
automatically terminate.
9.5.7 Trust's Redemption Right. All Excess Shares
shall be deemed to have been offered by the Initial
Transferee for sale to the Trust, or its designee, at a
price per share equal to the lesser of (a) the price per
share in the transaction that created such Excess Shares
(or, in the case of devise or gift, the Market Price per
share at the time of such devise or gift) or (b) the Market
Price per share of the class of shares for which such
Excess Shares were created on the date the Trust or its
designee, accepts such offer. The Trust shall have the
right to accept such offer for a period ending on the
earlier of (i) ninety (90) days after (a) the date of the
purported transfer that resulted in such Excess Shares if
the Initial Transferee notified the Trust of such purported
transfer within ten (10) days thereof or (b) the date on
which the Trust Managers determine in good faith that the
purported transfer resulting in Excess Shares occurred if
the Trust was not notified of the purported transfer by the
Initial Transferee and (ii) the date on which the Initial
Transferee gives notice of its intent to transfer its trust
interest to a Subsequent Transferee. For purposes of this
Article IX, "Market Price" means for any share, the average
daily per share closing sales price of a share if such
shares are listed on a national securities exchange or
quoted on the National Association of Securities Dealers
Automated Quotation National Market ("Nasdaq"), and if such
shares are not so listed or quoted, the Market Price shall
be the mean between the average per share closing bid
prices and the average per share closing asked prices, in
each case during the 30 calendar day period ending on the
business day prior to the redemption date, or if there have
been no sales on a national securities exchange or on the
Nasdaq and no published bid and asked quotations with
respect to such shares during such 30 calendar day period,
the Market Price shall be the price determined by the Trust
Managers in good faith. Payment of all of the amount
determined as the redemption payment for shares redeemed in
accordance with this Subsection 9.5.7 shall be made within
30 days of the date on which the Trust shall have notified
the Initial Transferee in writing of the Trust's intent to
exercise its redemption rights. No interest shall accrue
on any redemption payment with respect to the period
subsequent to the redemption date to the date of the
redemption payment. Notwithstanding anything in this
Subsection 9.5.7 to the contrary, the Trust's redemption
rights with respect to any Excess Shares shall terminate
upon any transfer of the trust interest relating thereto to
a Subsequent Transferee.
9.6 Exceptions to Certain Ownership and Transfer
Limitations. The Ownership Limit set forth in Section 9.2 hereof
shall not apply to the following shares and such shares shall not
be deemed to be Excess Shares at the times and subject to the
terms and conditions set forth in this Section 9.6:
9.6.1 Exemption by Trust Managers. Subject to the
provisions of Section 9.7 hereof, shares which the Trust
Managers in their sole discretion may exempt from the
Ownership Limit while owned by a person who has provided
the Trust with evidence and assurances acceptable to the
Trust Managers that the qualification of the Trust as a
REIT would not be jeopardized thereby.
9.6.2 Shares Held by Underwriters. Subject to the
provisions of Section 9.7 hereof, shares acquired and held
by an underwriter in a public offering of shares, or in any
transaction involving the issuance of shares by the Trust
in which the Trust Managers determine that the underwriter
or other person or party initially acquiring such shares
will make a timely distribution of such shares to or among
other holders such that, at all times prior to and
following such distribution, the Trust will continue to be
in compliance with the REIT Provisions.
9.7 Authority to Revoke Exceptions to Limitations.
The Trust Managers, in their sole discretion, may at any time
revoke any exception pursuant to Subsection 9.6.1 or 9.6.2 hereof
in the case of any shareholder, and upon such revocation, the
provisions of Sections 9.2 and 9.5 hereof shall immediately
become applicable to such shareholder and all shares of which
such shareholder may be the beneficial owner. A decision to
exempt or refuse to exempt from the Ownership Limit the ownership
of certain designated shares, or to revoke an exemption
previously granted, shall be made by the Trust Managers in their
sole discretion, based on any reason whatsoever, including, but
not limited to, the preservation of the Trust's qualification as
a REIT.
9.8 Severability. If any provision of this Article IX
or any application of any such provision is determined to be
invalid by any federal or state court having jurisdiction, the
validity of the remaining provisions of this Article IX shall not
be affected and other applications of such provision shall be
affected only to the extent necessary to comply with the
determination of such court. To the extent this Article IX may be
inconsistent with any other provision of these Bylaws, this
Article IX shall be controlling.
9.9 Authority of the Trust Managers. Subject to
Section 9.10 hereof, nothing contained in this Article IX or in
any other provisions of these Bylaws shall limit the authority of
the Trust Managers to take such action as they deem necessary or
advisable to protect the Trust and the interests of the
shareholders by preservation of the Trust's qualification as a
REIT under the REIT Provisions, provided that no such action may
be taken to amend or delete Section 9.10 hereof. In applying the
provisions of this Article IX, the Trust Managers may take into
account the lack of certainty in the REIT Provisions relating to
the ownership of shares that may prevent a corporation from
qualifying as a REIT and may make interpretations concerning the
Ownership Limit, Excess Shares, beneficial ownership and related
matters as conservatively as the Trust Managers deem advisable to
minimize or eliminate uncertainty as to the Trust's continued
qualification as a REIT. Notwithstanding any other provisions of
these Bylaws, if the Trust Managers determine that it is no
longer in the best interests of the Trust and the shareholders to
continue to have the Trust qualify as a REIT, the Trust Managers
may revoke or otherwise terminate the Trust's REIT election
pursuant to Section 856(g) of the Code.
9.10 New York Stock Exchange. Nothing in this Article
IX shall preclude the settlement of any transaction entered into
through the facilities of the New York Stock Exchange.
ARTICLE X
General Provisions
10.1 General Policies. The Trust intends to make
investments that are consistent with the applicable requirements
of the Internal Revenue Code of 1986, as amended, and the Texas
REIT Act and related regulations with respect to the composition
of the Trust's investments and the derivation of its income.
10.2 Limited Liability of Shareholders. A shareholder
shall not be personally or individually liable in any manner
whatsoever for any debt, act, omission or obligation incurred by
the Trust or the Trust Managers. A shareholder shall be under no
obligation to the Trust or to its creditors with respect to such
shares other than the obligation to pay to the Trust the full
amount of the consideration for which such shares were issued or
are to be issued. Upon the payment of such consideration, such
shares shall be fully paid and non-assessable by the Trust.
10.3 Waiver of Notice. (a) Whenever, under the provisions
of applicable law or of the Declaration of Trust or of these
Bylaws, any notice is required to be given to any shareholder or
Trust Manager, a waiver thereof in writing signed by the person
or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the giving of such
notice.
(b) Attendance of a Trust Manager at a meeting shall
constitute a waiver of notice of such meeting except where a
Trust Manager attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business on the grounds that the meeting is not lawfully
called or convened.
10.4 Seal. If one be adopted, the Trust seal shall have
inscribed thereon the name of the Trust and shall be in such form
as may be approved by the Trust Managers. Said seal shall be kept
in the custody of the Secretary and may be used by causing it or
a facsimile of it to be impressed or affixed or in any manner
reproduced.
10.5 Fiscal Year. The fiscal year of the Trust shall be a
calendar year unless changed by resolution of the Trust Managers.
10.6 Checks, Notes, etc. All checks or demands for money
and notes of the Trust shall be signed by such officer or
officers or such other person or persons as the Trust Managers
may from time to time designate. The Trust Managers may authorize
any officer or officers or such other person or persons to enter
into any contract or 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.
10.7 Examination of Books and Records. The Trust
Managers shall determine from time to time whether, and if
allowed, when and under what conditions and regulations the
accounts and books of the Trust (except such as may by statute be
specifically opened to inspection) or any of them shall be open
to inspection by the shareholders, and the shareholders' rights
in this respect are and shall be restricted and limited
accordingly.
10.8 Voting Of Shares Held by the Trust. Unless otherwise
ordered by the Trust Managers, the Chief Executive Officer, or if
no Chief Executive Officer shall be elected, the President,
acting on behalf of the Trust, shall have full power and
authority to attend and to act and to vote at any meeting of
shareholders of any corporation or other entity in which the
Trust may hold shares and at any such meeting, shall possess and
may exercise any and all of the rights and powers incident to the
ownership of such shares which, as the owner thereof, the Trust
might have possessed and exercised, if present. The Trust
Managers by resolution from time to time may confer like powers
upon any other person or persons (who need not be an officer,
employee or Trust Manager of the Trust).
10.9 Number, Gender, etc. Wherever the singular number is
used in these Bylaws and when required by the context, the same
shall include the plural, and the masculine gender shall include
the feminine and neuter genders. The term "person", as used
herein and as the context requires shall mean and include
individuals, corporations, limited partnerships, general
partnerships, joint stock companies or associations, joint
ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts, or other entities and
governments and agencies and political subdivisions thereof.
10.10 Annual and Quarterly Reports. The Trust shall
furnish to its shareholders annual reports containing audited
financial statements with a report thereon by its independent
accountants. The Trust shall also furnish to its shareholders
quarterly reports for each of the first three quarters of each
fiscal year containing unaudited financial information.
ARTICLE XI
Amendments
Except as otherwise provided by applicable law or the
Declaration of Trust, the power to alter, amend or repeal these
Bylaws or to adopt new Bylaws shall be vested in the Trust
Managers and (to the extent not inconsistent with the Texas REIT
Act and the Declaration of Trust and specified in the notice of
the meeting) the shareholders. Such action shall be taken (i) by
the affirmative vote of a majority of the Trust Managers, (ii)
with respect to Section 2.5, Section 3.3, Section 3.4, Section
3.6 or Article IX of these Bylaws, by the affirmative vote of the
holders of two-thirds (2/3) of the Trust's outstanding shares, or
(iii) with respect to all other Bylaws, by the affirmative vote
of the holders of a majority of the Trust's outstanding shares.
ARTICLE XII
Subject to All Laws
The provisions of these Bylaws and the Declaration of Trust
shall be subject to all valid and applicable laws, including,
without limitation, the Texas REIT Act as now or hereafter
amended, and in the event that any of the provisions of these
Bylaws or the Declaration of Trust are found to be inconsistent
with or contrary to any such valid laws, the later shall be
deemed to control and these Bylaws or the Declaration of Trust
shall be deemed modified accordingly, and, as so modified, shall
continue in full force and effect. To the extent this Article
XII may be inconsistent with any other provision of these Bylaws,
this Article XII shall be controlling.
