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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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WEINGARTEN REALTY INVESTORS
(Exact name of registrant as specified in its charter)
Texas 74-1464203
(State of incorporation or organization) (I.R.S. employer identification
number)
2600 Citadel Plaza
P. O. Box 924133
Houston, Texas 77292-4133
(Address of principal executive offices) (zip code)
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If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section 12(b) class of securities pursuant to Section 12(g)
of the Exchange Act and is effective of the Exchange Act and is effective
pursuant to General Instruction A.(c), pursuant to General Instruction A.(d),
please check the following box. [X] please check the following box. [ ]
</TABLE>
Securities Act registration statement file number to which this form
relates: 333-12179
Securities to be registered pursuant to Section 12(b) of the Act:
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Name of each exchange on
Title of each class which each class is to be
to be so registered registered
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7.44% Series A Cumulative Redeemable New York Stock Exchange
Preferred Shares
Par Value $0.03
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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Item 1. Description of Registrant's Securities to be Registered
The description of the Registrant's 7.44% Series A Cumulative
Redeemable Preferred Shares, par value $0.03 per share, will
be contained under "Description of Series A Preferred Shares"
in the Prospectus Supplement to be filed by the Registrant
pursuant to Rule 424(b) promulgated under the Securities Act
of 1933. The Prospectus Supplement is part of the
Registrant's Registration Statement on Form S-3, No.
333-12179, both of which are incorporated herein by
reference.
Item 2 Exhibits
1. Restated Declaration of Trust of Weingarten Realty Investors
and Amendment of the Restated Declaration of Trust of
Weingarten Realty Investors (filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-3, No. 33-49206,
which is incorporated by reference).
99.2. Amended and Restated Bylaws of Weingarten Realty Investors.
99.3. Statement of Designation of 7.44% Series A Cumulative
Redeemable Preferred Shares of Weingarten Realty Investors.
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* Filed herewith
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: February 18, 1998 WEINGARTEN REALTY INVESTORS
By: /s/ Stephen C. Richter
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Name: Stephen C. Richter
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Title: Senior Vice President and Treasurer
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EXHIBIT INDEX
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Exhibit
Number Description
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1. Restated Declaration of Trust of Weingarten Realty Investors
and Amendment of the Restated Declaration of Trust of
Weingarten Realty Investors (filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-3, No. 33-49206,
which is incorporated by reference).
99.2. Amended and Restated Bylaws of Weingarten Realty Investors.
99.3. Statement of Designation of 7.44% Series A Cumulative
Redeemable Preferred Shares of Weingarten Realty Investors.
</TABLE>
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* Filed herewith
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EXHIBIT 99.2
AMENDED AND RESTATED
BYLAWS
OF
WEINGARTEN REALTY INVESTORS
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Adopted October 17, 1997
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INDEX
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PAGE
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ARTICLE I OFFICES
Section 1.1 Principal Office............................................................ 1
Section 1.2 Other Offices............................................................... 1
ARTICLE II MEETINGS OF SHAREHOLDERS
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.......................................................... 1
Section 2.5 Business at Annual Meeting.................................................. 2
Section 2.6 Voting Lists................................................................ 3
Section 2.7 Quorum...................................................................... 3
Section 2.8 Organization................................................................ 3
Section 2.9 Proxies..................................................................... 4
Section 2.10 Voting of Shares............................................................ 4
Section 2.11 Voting of Shares by Certain Holders......................................... 4
Section 2.12 Election of Trust Managers.................................................. 5
Section 2.13 Telephone Meetings.......................................................... 5
Section 2.14 Action Without Meeting...................................................... 5
Section 2.15 Inspectors and Voting Procedures............................................ 5
ARTICLE III TRUST MANAGERS
Section 3.1 Powers and Responsibilities................................................. 6
Section 3.2 Number and Qualification.................................................... 6
Section 3.3 Election and Term of Office................................................. 6
Section 3.4 Nomination of Trust Managers................................................ 6,7
Section 3.5 Resignation................................................................. 7
Section 3.6 Removal..................................................................... 8
Section 3.7 Vacancies................................................................... 8
Section 3.8 Bond Not Required; Time Commitment.......................................... 8
Section 3.9 Compensation................................................................ 8
Section 3.10 Execution of Documents...................................................... 8
ARTICLE IV MEETINGS OF THE BOARD OF TRUST MANAGERS
Section 4.1 Place of Meetings........................................................... 8
Section 4.2 Annual Meeting.............................................................. 8
Section 4.3 Regular Meetings............................................................ 9
Section 4.4 Special Meetings............................................................ 9
Section 4.5 Quorum and Action........................................................... 9
Section 4.6 Presumption of Assent to Action............................................. 9
</TABLE>
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<TABLE>
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Section 4.7 Telephone Meetings......................................................... 9
Section 4.8 Action Without Meeting..................................................... 9
Section 4.9 Minutes.................................................................... 10
Section 4.10 Interest of Trust Managers................................................. 10
Section 4.11 Transactions Between Trust Managers and the Trust.......................... 10
Section 4.12 Persons Dealing with Trust Managers or Officers............................ 10
Section 4.13 Reliance................................................................... 10
Section 4.14 Liability of Trust Managers................................................ 10
ARTICLE V COMMITTEES OF THE TRUST MANAGERS
Section 5.1 Membership and Authorities................................................. 11
Section 5.2 Minutes and Rules of Procedure............................................. 11
Section 5.3 Vacancies.................................................................. 11
Section 5.4 Telephone Meetings......................................................... 11
Section 5.5 Action Without Meeting..................................................... 11
ARTICLE VI OFFICERS
Section 6.1 Number..................................................................... 11
Section 6.2 Election, Term of Office and Qualification................................. 12
Section 6.3 Subordinate Officers....................................................... 12
Section 6.4 Resignation................................................................ 12
Section 6.5 Removal.................................................................... 12
Section 6.6 Vacancies.................................................................. 12
Section 6.7 Chairman of the Board of Trust Managers.................................... 12
Section 6.8 Vice Chairmen.............................................................. 13
Section 6.9 The President.............................................................. 13
Section 6.10 The Vice Presidents........................................................ 13
Section 6.11 The Secretary.............................................................. 13
Section 6.12 Assistant Secretaries...................................................... 13
Section 6.13 The Treasurer.............................................................. 13
Section 6.14 Assistant Treasurers....................................................... 14
Section 6.15 Treasurer's Bond........................................................... 14
Section 6.16 Salaries................................................................... 14
Section 6.17 Execution of Documents..................................................... 14
ARTICLE VII TRUST SHARES
Section 7.1 Share Certificates......................................................... 14
Section 7.2 Lost Certificates, etc..................................................... 15
Section 7.3 Transfer of Shares......................................................... 15
Section 7.4 Ownership of Shares........................................................ 15
Section 7.5 Closing of Transfer Books.................................................. 15
Section 7.6 Dividends.................................................................. 16
Section 7.7 Reserves................................................................... 16
</TABLE>
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ARTICLE VIII INDEMNIFICATION
Section 8.1 Definitions................................................................ 16
Section 8.2 Indemnification............................................................ 16
Section 8.3 Successful Defense......................................................... 17
Section 8.4 Determinations............................................................. 17
Section 8.5 Advancement of Expenses.................................................... 18
Section 8.6 Employee Benefit Plans..................................................... 18
Section 8.7 Other Indemnification and Insurance........................................ 18
Section 8.8 Notice..................................................................... 18
Section 8.9 Construction............................................................... 18
Section 8.10 Continuing Offer, Reliance, etc............................................ 19
Section 8.11 Effect of Amendment........................................................ 19
ARTICLE IX GENERAL PROVISIONS
Section 9.1 General Policies........................................................... 19
Section 9.2 Limited Liability of Shareholders.......................................... 19
Section 9.3 Waiver of Notice........................................................... 19
Section 9.4 Seal....................................................................... 20
Section 9.5 Fiscal Year................................................................ 20
Section 9.6 Checks, Notes, etc......................................................... 20
Section 9.7 Examination of Books and Records........................................... 20
Section 9.8 Voting Upon Shares Held by the Trust....................................... 20
Section 9.9 Number, Gender, Etc........................................................ 20
ARTICLE X AMENDMENTS......................................................................... 20
ARTICLE XI SUBJECT TO ALL LAWS................................................................ 21
</TABLE>
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WEINGARTEN REALTY INVESTORS
AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE. The principal office of Weingarten
Realty Investors (the "Trust") shall be in the City of Houston, Harris County,
Texas or at such other location as the Board of Trust Managers may from time to
time determine.
SECTION 1.2 OTHER OFFICES. The Trust may also have offices at such
other places, both within and without the State of Texas, as the Board of Trust
Managers may from time to time determine or the business of the Trust may
require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETINGS. The Board of 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
Board of 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.
SECTION 2.2 ANNUAL MEETING. The annual meeting of shareholders shall
be held at such time, on such day and at such place as may be designated by the
Board of 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.
SECTION 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 Board of 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 the meetings. Business transacted at all special meetings
shall be confined to the purpose or purposes stated in the call.
SECTION 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
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shareholder at his or her 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.
SECTION 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 Board of Trust Managers (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual meeting by or at the
direction of the Board of 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 of the Declaration
of Trust, these Bylaws, the Texas Real Estate Investment Trust Act (the "Texas
REIT Act") or the provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or the rules and regulations promulgated thereunder, 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 office of the
Trust (i) with respect to the Trust's first annual meeting of shareholders
following the adoption of this bylaw, 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 promulgated
thereunder) of 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.
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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.
SECTION 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 shareholders 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.
SECTION 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.
SECTION 2.8 ORGANIZATION. (a) The Chairman of the Board, if one shall
be elected, shall preside at all meetings of the shareholders. In the absence
of the Chairman of the Board or should one not be elected, the following
officers shall preside in order of priority, if such officers are elected: Vice
Chairmen (in order of seniority), President or Secretary. If no such officer is
available, the meeting shall be adjourned until such an officer is available to
preside over the meeting. The presiding officer shall set 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 Secretary of the Trust shall act as secretary at all meetings
of the shareholders. In his or her absence an Assistant Secretary shall so act
and in the absence of all of these officers the presiding officer may appoint
any person to act as secretary of the meeting.
SECTION 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
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his or her duly authorized attorney-in-fact. Proxies shall be filed with the
Secretary or Trust Managers immediately 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.
SECTION 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 or her
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. In determining the number of shares
entitled to vote, shares abstaining from voting or not voted on a matter
(including elections) will not be treated as entitled to vote. 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 by some specific statutory provision superseding the provisions contained in
these Bylaws or the Declaration of Trust.
SECTION 2.11 VOTING OF SHARES BY CERTAIN HOLDERS. (a) Shares standing
in the name of another business organization 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.
(b) Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by proxy, without a
transfer of such shares into his or her 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 or her. Shares standing in the name of a trustee may be voted by
him or her, either in person or by proxy, but no trustee shall be entitled to
vote shares held by him or her without a transfer of such shares into his or
her 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 or her name if authority to
do so is contained in an appropriate order of the court by which such receiver
was appointed.
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(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.
SECTION 2.12 ELECTION OF TRUST MANAGERS. At each election for 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 or her for as many persons as
there are to be elected and for whose election he or she 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 or her votes on any basis.
SECTION 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.
SECTION 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.
SECTION 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
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her 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.
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ARTICLE III
TRUST MANAGERS
SECTION 3.1 POWERS AND RESPONSIBILITIES. The business and affairs of
the Trust shall be managed under the direction of its Board of Trust Managers
which 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 Board of Trust Managers. Among
other things, the Board of 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 capital stock 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.
SECTION 3.2 NUMBER AND QUALIFICATION. The Board of Trust Managers
shall be composed of no less than three (3) Trust Managers who 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 must be natural persons who are at
least eighteen (18) years of age and must not be subject to any legal
disability, but need not be shareholders.
SECTION 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 3.7) 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 shares of the Trust present in person or
represented by proxy at such meeting; provided, however, that any Trust Manager
that has been previously elected as a Trust Manager by the shareholders who is
not re-elected by such majority vote at a subsequent annual meeting shall
nevertheless remain in office until his or her successor is elected and
qualified. Each Trust Manager shall hold office until his or her successor is
elected and qualified, or until his or her death, resignation or removal in the
manner provided in these Bylaws.
SECTION 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) 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 3.4 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 3.4.
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In addition to any other applicable requirements of the Declaration
of Trust, these Bylaws, the Texas REIT Act or the Exchange Act or the rules and
regulations promulgated thereunder, 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, 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 promulgated 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 solicitation 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 the 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.
SECTION 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 judged incompetent or for whom a guardian or
conservator has been appointed, shall be deemed to have resigned as of the date
of such adjudication or appointment.
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SECTION 3.6 REMOVAL. A Trust Manager may be removed at any time with
or without cause by the vote of holders of shares representing two-thirds (2/3)
of the total votes authorized to be cast by shares then outstanding and
entitled to vote thereon. Upon the resignation or removal of any Trust Manager,
or his or her otherwise ceasing to be a Trust Manager, he or she shall execute
and deliver such documents as the remaining Trust Managers shall require for
the conveyance of any Trust property held in his or her name, shall account to
the remaining Trust Managers as they require for all property which he or she
holds as Trust Manager and shall thereupon be discharged as Trust Manager. Upon
the incapacity or death of any Trust Manager, his or her legal representative
shall perform the acts set forth in the preceding sentence and the discharge
mentioned therein shall run to such legal representative and to the
incapacitated Trust Manager or the estate of the deceased Trust Manager, as the
case may be.
SECTION 3.7 VACANCIES. 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 vacancies are filled, the remaining Trust Manager
or Trust Managers (even though fewer than three) may exercise the powers of the
Trust Managers hereunder. Vacancies may be filled by successor Trust Managers
either appointed by a majority of the remaining Trust Managers or elected by
the vote of the holders of at least two-thirds (2/3) of the outstanding shares
at an annual or special meeting of the shareholders. Any Trust Manager
appointed by the Board of Trust Managers to fill a vacancy created by the
resignation, removal, incapacity or death of a former Trust Manager shall hold
office until the next meeting of shareholders at which a vote is taken to elect
Trust Managers. The election of a successor Trust Manager shall be considered
an amendment to the Declaration of Trust.
SECTION 3.8 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 or her duties or
obligations to the Trust. No Trust Manager shall be required to devote his or
her entire time to the business and affairs of the Trust.
SECTION 3.9 COMPENSATION. Trust Managers shall receive compensation
for their services to the Trust as may be determined from time to time by the
Board of Trust Managers. The Board of 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.
SECTION 3.10 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 Board of Trust Managers as may be required by statute, the
Declaration of Trust or these Bylaws.
ARTICLE IV
MEETINGS OF THE BOARD OF TRUST MANAGERS
SECTION 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.
SECTION 4.2 ANNUAL MEETING. The annual meeting of the Board of Trust
Managers shall be held immediately following the adjournment of the annual
meeting of the shareholders and no notice of such
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meeting shall be necessary to the Trust Managers in order to legally 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 Board of
Trust Managers.
SECTION 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.
SECTION 4.4 SPECIAL MEETINGS. Special meetings of the Board of Trust
Managers may be called by the Chairman of the Board, if one shall be elected,
or by the Vice Chairmen (in order of seniority), in the absence of a Chairman
of the Board, or by the President, if no Chairman of the Board or Vice Chairman
is elected, or by such other Trust Manager selected by vote of the Board of
Trust Managers, if a President is not elected, on one (1) business day's notice
(oral or written) to each Trust Manager. Special meetings shall be called by
the Chairman of the Board or any Vice Chairman (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 Board of 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.
SECTION 4.5 QUORUM AND ACTION. At all meetings of the Board of 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 Board of 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 the Board 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.
SECTION 4.6 PRESUMPTION OF ASSENT TO ACTION. A Trust Manager who is
present at a meeting of the Board of Trust Managers at which action on any
Trust matter is taken shall be presumed to have assented to the action taken
unless his or her dissent shall be entered in the minutes of the meeting or
unless he or she shall file his or her 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.
SECTION 4.7 TELEPHONE MEETINGS. Trust Managers may participate in and
hold a meeting of the Board of 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.
SECTION 4.8 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of the Board of 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.
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SECTION 4.9 MINUTES. The Board of Trust Managers shall keep regular
minutes of its proceedings. The minutes shall be placed in the minute book of
the Trust.
SECTION 4.10 INTEREST OF TRUST MANAGERS. With respect to the actions
of the Board of 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.
SECTION 4.11 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 Board of Trust Managers and thereafter the
Board of Trust Managers authorizes or ratifies such contract, act or other
transaction by affirmative vote of a majority of the Trust Managers who are not
interested in the transaction or (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 shareholders holding a majority of
the shares then outstanding and entitled to vote thereon.
SECTION 4.12 PERSONS DEALING WITH TRUST MANAGERS OR OFFICERS. Any act
of the Board of 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 Board of 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 Board of
Trust Managers or any of the officers of the Trust of moneys or other
consideration shall be binding upon the Trust.
SECTION 4.13 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.
SECTION 4.14 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 or her duty under the Trust, except
to the extent specifically required by statute, the Declaration of Trust or
these Bylaws.
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ARTICLE V
COMMITTEES OF THE TRUST MANAGERS
SECTION 5.1 MEMBERSHIP AND AUTHORITIES. The Board of 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 Board of Trust
Managers may determine, including, but not limited to, an Executive Committee,
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 Board of Trust Managers in the business and affairs of the
Trust, except in those cases where the authority of the Board of Trust Managers
is specifically denied to the committee or committees by the Board of 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 Board of Trust Managers. The designation of a committee and the delegation
thereto of authority shall not operate to relieve the Board of Trust Managers,
or any member thereof, of any responsibility imposed upon each of them by law.
The members of each such committee shall serve at the pleasure of the Board of
Trust Managers.
SECTION 5.2 MINUTES AND RULES OF PROCEDURE. Each committee designated
by the Board of Trust Managers shall keep regular minutes of its proceedings
and report the same to the Board of Trust Managers when required. Subject to
the provisions of these Bylaws, the members of any committee may fix such
committee's own rules of procedure.
SECTION 5.3 VACANCIES. The Board of Trust Managers shall have the
power at any time to fill vacancies in, to change the membership of, or to
dissolve, any committee.
SECTION 5.4 TELEPHONE MEETINGS. Members of any committee designated
by the Board of 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.
SECTION 5.5 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of any committee designated by the Board of 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.
ARTICLE VI
OFFICERS
SECTION 6.1 NUMBER. The officers of the Trust may include a Chairman
of the Board of Trust Managers, and any one (1) or more Vice Chairmen of the
Board of Trust Managers, if appointed by the Board of Trust Managers, and may
include a President and a Secretary. The Trust Managers may also elect 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.
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SECTION 6.2 ELECTION, TERM OF OFFICE AND QUALIFICATION. The Trust
Managers shall elect officers, none of whom need be a Trust Manager, except for
the Chairman of the Board and Vice Chairmen, if any shall be elected, at any
time and from time to time as they deem necessary. Each officer so elected
shall hold office until his or her successor shall have been duly elected and
qualified or until his or her death, resignation or removal in the manner
hereinafter provided.
SECTION 6.3 SUBORDINATE OFFICERS. The Board of 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 Board of Trust Managers may from time to time determine. The Board of
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 as an officer of
the Trust, the officers of the Trust being limited to the officers elected or
appointed as such by the Board of Trust Managers.
SECTION 6.4 RESIGNATION. Any officer may resign at any time by giving
written notice thereof to the Board of Trust Managers or to the Chairman of the
Board, if one shall be elected, or any Vice Chairmen, if any are elected, or
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.
SECTION 6.5 REMOVAL. Any officer elected or appointed by the Board of
Trust Managers may be removed by the Board of Trust Managers at any time with
or without cause by majority vote of the entire Board of Trust Managers, except
that the Chairman of the Board and Vice Chairmen, if any shall be elected, may
only be removed from the Board of Trust Managers in accordance with the
requisite procedures for removal of Trust Managers as provided in the Texas
REIT Act, the Declaration of Trust and these Bylaws. Any other officer may be
removed at any time with or without cause by the Board of Trust Managers or by
any committee or superior officer upon whom such power of removal may be
conferred by the Board of 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.
SECTION 6.6 VACANCIES. A vacancy in any office shall be filled for
the unexpired portion of the term by the Board of 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.
SECTION 6.7 CHAIRMAN OF THE BOARD OF TRUST MANAGERS. The Chairman of
the Board, if one shall be elected, shall be the chief executive officer of the
Trust, shall preside at all meetings of the shareholders and Board of Trust
Managers of the Trust, 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 Board of Trust Managers
are carried into effect. He or she may sign, with any other proper officer,
certificates for shares of the Trust and any deeds, bonds, mortgages, contracts
and other documents which the Board of 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 Board of Trust Managers or these Bylaws, to some other officer or agent of
the Trust. In addition, the Chairman of the Board shall perform whatever duties
and shall exercise all powers that are given to him or her by the Board of
Trust Managers.
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SECTION 6.8 VICE CHAIRMEN. The Vice Chairmen ( in order of seniority)
shall, in the absence of the Chairman of the Board, preside at all meetings of
the shareholders and the Board of Trust Managers of the Trust and shall have
the powers and duties of the Chairman of the Board as set forth in Section 6.7.
In addition, each Vice Chairman shall perform whatever duties and shall
exercise all powers that are given to him or her by the Board of Trust
Managers.
SECTION 6.9 THE PRESIDENT. If no Chairman of the Board or Vice
Chairmen shall be elected, the President shall be the chief executive officer
of the Trust and shall have the powers and duties of the Chairman of the Board
as set forth in Section 6.7. In the absence of the Chairman of the Board or the
Vice Chairmen, if any shall be elected, the President shall preside at all
meetings of the shareholders and Board of Trust Managers of the Trust. 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, except where required by law to be otherwise
signed and executed and except where the signing and exection thereof shall be
expressly delegated by the Board of 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 or her by the
Board of Trust Managers or by the Chairman of the Board, if one shall be
elected.
SECTION 6.10 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 Board of Trust Managers, by the Chairman of the
Board or Vice Chairmen, if any shall be elected, or by the President, if no
Chairman of the Board or Vice Chairman is elected, and may sign, with any other
proper officer, certificates for shares of the Trust. At the request of the
President, or in his or her absence or disability, the Vice President
designated by the President (or in the absence of such designation, the senior
Vice President), shall perform the duties and exercise the powers of the
President.
SECTION 6.11 THE SECRETARY. The Secretary, when available, shall
attend all meetings of the Board of Trust Managers and all meetings of the
shareholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose and shall perform like duties for the Trust Manager
committees when required. The Secretary shall give, or cause to be given,
notice of all meetings of the shareholders and special meetings of the Board of
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 Board of Trust Managers,
by the Chairman of the Board, if one shall be elected, by the Vice Chairman, if
one shall be elected, or by the President, if a Chairman of the Board or a Vice
Chairman is not elected, under whose supervision he or she 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 or her signature or by the
signature of the Treasurer or an Assistant Secretary.
SECTION 6.12 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 Board of Trust Managers or by the Secretary. At
the request of the Secretary, or in his or her absence or disability, the
Assistant Secretary designated by the Secretary (or in the absence of such
designation the senior Assistant Secretary), shall perform the duties and
exercise the powers of the Secretary.
SECTION 6.13 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
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in such depositories as may be designated by the Board of Trust Managers. The
Treasurer shall disburse the funds of the Trust as may be ordered by the Board
of Trust Managers, taking proper vouchers for such disbursements, and shall
render to the Chairman of the Board, if one shall be elected, the Vice
Chairmen, if any shall be elected, the President and the Board of Trust
Managers, at the regular meetings of the Board of Trust Managers, or whenever
they may require it, an account of all his or her 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.
SECTION 6.14 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 Board of Trust Managers or by the Treasurer. At
the request of the Treasurer, or in his or her absence or disability, the
Assistant Treasurer designated by the Treasurer (or in the absence of such
designation, the senior Assistant Treasurer), shall perform the duties and
exercise the powers of the Treasurer.
SECTION 6.15 TREASURER'S BOND. If required by the Board of 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 or her office
and for the restoration to the Trust, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession or under his or her
control belonging to the Trust.
SECTION 6.16 SALARIES. The salary or other compensation of officers
shall be fixed from time to time by the Board of Trust Managers. The Board of
Trust Managers may delegate to any committee or officer the power to fix from
time to time the salary or other compensation of subordinate officers and
agents appointed in accordance with the provisions of Section 6.3.
SECTION 6.17 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 Board of Trust Managers as may be required by statute, the
Declaration of Trust or these Bylaws.
ARTICLE VII
TRUST SHARES
SECTION 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 Board of Trust Managers.
The certificates shall be signed by the Chairman of the Board, 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 Board of 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
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before such certificate is issued, it may be issued with the same effect as if
he or she were such officer at the date of its issuance.
(b) In the event the Trust has, by its Declaration of Trust, limited
or denied 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
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
Board of 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.
SECTION 7.2 LOST CERTIFICATES, ETC. The Board of 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 Board of Trust
Managers may, in its discretion and as a condition precedent to the issue
thereof, require the owner of such lost or destroyed certificate or
certificates, or his or her legal representative, to advertise the same in such
manner as the Board of Trust Managers shall require and/or indemnify the Trust
as the Board of Trust Managers may prescribe.
SECTION 7.3 TRANSFER OF SHARES. Subject to any 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.
SECTION 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.
SECTION 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 Board of 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 Board of Trust Managers may fix in advance a date as the
record date for any such determination of shareholders, such date in any case
to be not more than sixty (60) days and, in case of a meeting of shareholders,
not less than ten (10) days prior to the date on which the particular action
requiring such determination of shareholders is to be taken, and the
determination of shareholders on such record date shall
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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.
SECTION 7.6 DIVIDENDS. The Board of 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 interests of the Trust, except no dividends shall be paid when
the Trust is insolvent or when the payment thereof would render the Trust
insolvent.
SECTION 7.7 RESERVES. By resolution the Board of Trust Managers may
create such reserve or reserves of the Trust as the Board of Trust Managers
from time to time, in their absolute discretion, determine to be proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Trust, or for such other purpose
as the Board of Trust Managers shall determine to be beneficial to the interest
of the Trust. The Board of Trust Managers may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 DEFINITIONS. In this Article:
(a) "Indemnitee" means (i) any present or former Trust Manager or
officer of the Trust or present or former Director or officer of Weingarten
Realty, Inc. (the "Company"), (ii) any person who while serving in any of the
capacities referred to in clause (i) hereof served at the Trust's or Company'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
Board of Trust Managers or any committee thereof or the Board of Directors of
the Company 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, (ii) when used with respect
to a Director, the office of Director of the Company and (iii) when used with
respect to a person other than a Trust Manager or Company Director, the
elective or appointive office of the Trust or Company held by such person or
the employment or agency relationship undertaken by such person on behalf of
the Trust or Company, 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.
SECTION 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 or she
was, is or is threatened to be named defendant or respondent, or in which he or
she was or is a witness without being named
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a defendant or respondent, by reason, in whole or in part, of his or her
serving or having served, or having been nominated or designated to serve, in
any of the capacities referred to in Section 8.1(a), if it is determined in
accordance with Section 8.4 that the Indemnitee (a) conducted himself or
herself in good faith, (b) reasonably believed, in the case of conduct in his
or her Official Capacity, that his or her conduct was in the Trust's or
Company's best interests and, in all other cases, that his or her conduct was
at least not opposed to the Trust's or Company's best interests, and (c) in the
case of any criminal proceeding, had no reasonable cause to believe that his or
her conduct was unlawful; provided, however, that in the event that an
Indemnitee is found liable to the Trust or Company 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 or her duty to
the Trust or Company. Except as provided in the immediately preceding proviso
to the first sentence of this Section 8.2, 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 or her, whether or not the benefit resulted from an
action taken in the Indemnitee's Official Capacity, or (y) found liable to the
Trust or Company. 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. The effect of Article
VIII may be to indemnify Trust Managers and officers and Company Directors and
officers for their acts of negligence.
SECTION 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 or she is a witness or a named
defendant or respondent because he or she served in any of the capacities
referred to in Section 8.1(a), if such person has been wholly successful, on
the merits or otherwise, in defense of the Proceeding.
SECTION 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 or she has met the applicable standard
of conduct. Such determination shall be made (a) by the Board of 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
Board of Trust Managers, duly designated to act in the matter by a majority
vote of all Trust Managers (in which designation Trust Managers who are named
defendants or respondents in the Proceeding may participate), 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 Board of 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
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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.
SECTION 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 or her good faith
belief that he or she 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 or she 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 or her appearance as a witness or other participation in a
Proceeding at a time when he or she is not named a defendant or respondent in
the Proceeding.
SECTION 8.6 EMPLOYEE BENEFIT PLANS. For purposes of this Article
VIII, the Trust or Company shall be deemed to have requested an Indemnitee to
serve an employee benefit plan whenever the performance by him or her of his or
her duties to the Trust or Company also imposed or imposes duties on or
otherwise involved or involves services by him or her 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 or her duties for a purpose
reasonably believed by him or her 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 or Company.
SECTION 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 or her 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 or she was an Indemnitee with
respect to matters arising during the period he or she was in such capacity,
and (c) inure to the benefit of the heirs, executors and administrators of such
a person.
SECTION 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.
SECTION 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.
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SECTION 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 Indemnitees.
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 Indemnitees and (z)
acknowledges and agrees that no present or future Indemnitee shall be
prejudiced in his or her 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.
SECTION 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
Indemnitees to be indemnified by the Trust, nor the obligation of the Trust to
indemnify any such Indemnitees, 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
GENERAL PROVISIONS
SECTION 9.1 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, as amended, and related
regulations with respect to the composition of the Trust's investments and the
derivation of its income.
SECTION 9.2 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 Board of 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
to be issued. Upon the payment of such consideration, such shares shall be
fully paid and non-assessable by the Trust.
SECTION 9.3 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.
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SECTION 9.4 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 Board of 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.
SECTION 9.5 FISCAL YEAR. The fiscal year of the Trust shall be fixed
by resolution of the Board of Trust Managers.
SECTION 9.6 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 Board of Trust Managers may from time to time
designate. The Board of 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.
SECTION 9.7 EXAMINATION OF BOOKS AND RECORDS. The Board of 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.
SECTION 9.8 VOTING UPON SHARES HELD BY THE TRUST. Unless otherwise
ordered by the Board of Trust Managers, the Chairman of the Board or the Vice
Chairmen (in order of seniority), if any shall be elected, or the President, if
no Chairman of the Board or Vice Chairman is elected, 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 Board of Trust Managers by resolution from time to time may confer
like powers upon any other person or persons.
SECTION 9.9 NUMBER, GENDER, ETC. Whenever 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.
ARTICLE X
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 Board of 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 to amend the Bylaws
may be taken (i) with respect to all Bylaw provisions, by the affirmative vote
of a majority of the Trust Managers, or (ii) (a) with respect to Section 2.5,
Section 3.3, Section 3.4, Section 3.6, Section 3.7 or Article X of these
Bylaws, by the affirmative vote of the
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holders of two-thirds (2/3) of the Trust's outstanding shares, or (b) with
respect to all other Bylaws, by the affirmative vote of the holders of a
majority of the Trust's outstanding shares.
ARTICLE XI
SUBJECT TO ALL LAWS
The provisions of these Bylaws 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
are found to be inconsistent with or contrary to any such valid laws, the
latter shall be deemed to control and these Bylaws shall be deemed modified
accordingly, and, as so modified, shall continue in full force and effect.
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EXHIBIT 99.3
STATEMENT OF DESIGNATION
OF
7.44% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
OF
WEINGARTEN REALTY INVESTORS
ARTICLE ONE
WEINGARTEN REALTY INVESTORS (the "Company"), pursuant to the provisions
of Section 3.30 of the Texas Real Estate Investment Trust Act (the "TREITA"),
hereby files this Statement of Designation of 7.44% Series A Cumulative
Redeemable Preferred Shares of the Company (the "Statement") prior to the
issuance of any shares of 7.44% Series A Cumulative Redeemable Preferred Shares,
such series of unissued shares having been established by a resolution duly
adopted by all necessary action on the part of the Company and the Board of
Trust Managers, as provided for in the Restated Declaration of Trust, as amended
("Declaration of Trust").
ARTICLE TWO
The name of the Company is Weingarten Realty Investors.
ARTICLE THREE
Pursuant to the authority conferred upon the Board of Trust Managers by
the Declaration of Trust and Section 3.30 of the TREITA, the Board of Trust
Managers, pursuant to Section 10.20 of the TREITA, adopted a resolution
establishing the 7.44% Series A Cumulative Redeemable Preferred Shares of the
Company and designating the series and fixing and determining the preferences,
limitations, and relative rights thereof, as set forth in the true and correct
copy of the resolution attached hereto as Exhibit A (the "Designating
Resolution").
ARTICLE FOUR
The Designating Resolution was adopted effective as of February 19,
1998.
ARTICLE FIVE
The Designating Resolution was duly adopted by all necessary action on
the part of the Company.
IN WITNESS WHEREOF, the undersigned officer has executed this Statement
effective as of February 23, 1998. .
By: /s/Stephen C. Richter
-----------------------------------------
Name: Stephen C. Richter
---------------------------------------
Title: Senior Vice President and Treasurer
--------------------------------------
<PAGE> 2
EXHIBIT A
DESIGNATING RESOLUTION
BOARD OF TRUST MANAGERS
WEINGARTEN REALTY INVESTORS
FEBRUARY 19, 1998
AUTHORIZATION OF 7.44% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
WHEREAS, the Board of Trust Managers of the Company has deemed it to be
in the best interest of the Company and its shareholders for the Company to
establish a series of preferred shares pursuant to the authority granted to the
Board of Trust Managers in the Restated Declaration of Trust, as amended (the
"Declaration of Trust") of the Company:
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to the authority vested
in the Board of Trust Managers by Article Seven of the Declaration of Trust of
the Company, a series of preferred shares, par value $.03 per share, is hereby
established, and the terms of the same shall be as follows:
(i) TITLE. The series of preferred shares is hereby designated as the
"7.44% Series A Cumulative Redeemable Preferred Shares" (the "Series A Preferred
Shares").
(ii) NUMBER. The maximum number of authorized shares of the Series A
Preferred Shares shall be 3,450,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive dividends and
to participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Company, the Series A Preferred Shares shall
rank senior to the common shares and any other class or series of shares of the
Company ranking, as to dividends and upon liquidation, junior to the Series A
Preferred Shares (collectively, "Junior Shares").
(iv) DIVIDENDS.
(A)The holders of the then outstanding Series A Preferred Shares
shall be entitled to receive, when and as declared by the Board of Trust
Managers out of any funds legally available therefor, cumulative dividends at
the rate of $1.86 per share per year, payable in equal amounts quarterly in cash
on the last day of each March, June, September and December or, if not a
Business Day (as hereinafter defined), the next succeeding Business Day (each
such day being hereafter called a "Quarterly Dividend Date" and each period
ending on a Quarterly Dividend Date being hereinafter called a "Dividend
Period"). Dividends shall begin on March 31, 1998. Dividends shall be payable to
holders of record as they appear in the share records of the Company at the
close of business on the applicable record date (the "Record Date"), which shall
be the 15th day of the calendar month in which the applicable Quarterly Dividend
Date falls on or such other date designated by the Board of Trust Managers of
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the Company for the payment of dividends that is not more than 30 nor less than
10 days prior to such Quarterly Dividend Date. The amount of any dividend
payable for any Dividend Period shorter than a full Dividend Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day months.
Dividends paid on the Series A Preferred Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a per share basis among all such shares at the time
outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
(B) The amount of any dividends accrued on any Series A Preferred
Shares at any Quarterly Dividend Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Quarterly Dividend Date,
whether or not earned or declared, and the amount of dividends accrued on any
shares of Series A Preferred Shares at any date other than a Quarterly Dividend
Date shall be equal to the sum of the amount of any unpaid dividends accumulated
thereon, to and including the last preceding Quarterly Dividend Date, whether or
not earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $1.86 per share for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the calculation is
made based on a 360-day year of twelve 30-day months.
(C) Except as provided in this resolution, the Series A Preferred
Shares will not be entitled to any dividends in excess of full cumulative
dividends as described above and shall not be entitled to participate in the
earnings or assets of the Company, and no interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series A Preferred Shares which may be in arrears.
(D) Any dividend payment made on the Series A Preferred Shares shall be
first credited against the earliest accrued but unpaid dividend due with respect
to such shares which remains payable.
(E) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders of all classes of
shares (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocated to the holders of the Series A Preferred Shares shall
equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal
to (a) the total dividends paid or made available to the holders of the Series A
Preferred Shares for the year over (b) the Total Dividends. Subject to the
provisions of applicable law, the current and accumulated earnings and profits
of the Company will be allocated first to distributions to the Series A
Preferred Shares and then to distributions with respect to common shares of the
Company.
(F) No dividends on the Series A Preferred Shares shall be authorized
by the Board of Trust Managers or be paid or set apart for payment by the
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for payment by the Company at such time as the terms and provisions of any
agreement of the Company, including any agreement relating to its indebtedness,
prohibit such authorization, payment or setting apart for payment or provide
that such authorization, payment or setting apart for payment would constitute a
breach thereof or a default thereunder, or if such authorization or payment
shall be restricted or prohibited by law. Notwithstanding the foregoing,
dividends on the Series A Preferred Shares will accrue whether or not the
Company has earnings, whether or not there are funds legally available for the
payment of such dividends and whether or not such dividends are authorized.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Company, the holders of the Series A Preferred Shares then
outstanding shall be entitled to receive and to have paid out of the assets of
the Company available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Shares, the amount of $25.00 per
share, plus accrued and unpaid dividends thereon.
(B) After the payment to the holders of the Series A Preferred Shares
of the full preferential amounts provided for in this resolution, the holders of
the Series A Preferred Shares, as such, shall have no right or claim to any of
the remaining assets of the Company.
(C) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Company, the amounts payable with respect to the preference
value of the Series A Preferred Shares and any other shares of the Company
ranking as to any such distribution on a parity with the Series A Preferred
Shares are not paid in full, the holders of the Series A Preferred Shares and of
such other shares will share ratably in any such distribution of assets of the
Company in proportion to the full respective preference amounts to which they
are entitled.
(D) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Company, nor the merger or
consolidation of the Company into or with any other entity or the merger or
consolidation of any other entity into or with the Company, shall be deemed to
be a dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this resolution.
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. On and after March 31, 2003, the Company may,
at its option, redeem at any time all or, from time to time, part of the Series
A Preferred Shares at a price per share (the "Redemption Price"), payable in
cash, of $25.00, together with all accrued and unpaid dividends to and including
the date fixed for redemption (the "Redemption Date"), without interest, to the
full extent the Company has funds legally available therefor. The Series A
Preferred Shares have no stated maturity and will not be subject to any sinking
fund or mandatory redemption provisions, except as provided for in subparagraph
(ix) below.
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(B) PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the Redemption Date.
Notice of any redemption will also be mailed by the registrar, postage
prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the Series A Preferred
Shares to be redeemed at the address set forth in the share transfer
records of the registrar. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series A Preferred Shares except
as to the holder to whom the Company has failed to give notice or
except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any
exchange upon which Series A Preferred Shares may be listed or admitted
to trading, such notice shall state: (a) the Redemption Date; (b) the
Redemption Price; (c) the number of Series A Preferred Shares to be
redeemed; (d) the place or places where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (e) that
dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date. If fewer than all of the Series A Preferred Shares
held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of Series A Preferred Shares to be
redeemed from such holder.
(2) If notice has been mailed in accordance with subparagraph
(vi)(B)(1) above and provided that on or before the Redemption Date
specified in such notice all funds necessary for such redemption shall
have been irrevocably set aside by the Company, separate and apart from
its other funds in trust for the pro rata benefit of the holders of the
Series A Preferred Shares so called for redemption, so as to be, and to
continue to be available therefor, then, from and after the Redemption
Date, dividends on the Series A Preferred Shares so called for
redemption shall cease to accumulate, and said shares shall no longer
be deemed to be outstanding and shall not have the status of Series A
Preferred Shares and all rights of the holders thereof as shareholder
of the Company (except the right to receive the Redemption Price) shall
cease. Upon surrender, in accordance with such notice, of the
certificates for any Series A Preferred Shares so redeemed (properly
endorsed or assigned for transfer, if the Company shall so require and
the notice shall so state), such Series A Preferred Shares shall be
redeemed by the Company at the Redemption Price. In case fewer than all
the Series A Preferred Shares represented by any such certificate are
redeemed, a new certificate or certificates shall be issued
representing the unredeemed Series A Preferred Shares without cost to
the holder thereof.
(3) Any funds deposited with a bank or trust company for the
purpose of redeeming Series A Preferred Shares shall be irrevocable
except that:
(a) the Company shall be entitled to receive from
such bank or trust company the interest or other earnings, if
any, earned on any money so deposited in trust, and
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the holders of any shares redeemed shall have no claim to such
interest or other earnings; and
(b) any balance of monies so deposited by the Company
and unclaimed by the holders of the Series A Preferred Shares
entitled thereto at the expiration of two years from the
applicable Redemption Date shall be repaid, together with any
interest or other earnings earned thereon, to the Company, and
after any such repayment, the holders of the shares entitled
to the funds so repaid to the Company shall look only to the
Company for payment without interest or other earnings.
(4) No Series A Preferred Shares may be redeemed except from
proceeds from the sale of other capital stock of the Company, including
but not limited to common shares, preferred shares, depositary shares,
interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of
the foregoing.
(5) Unless full accumulated dividends on all Series A
Preferred Shares shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart
for payment for all past Dividend Periods and the then current Dividend
Period, no Series A Preferred Shares shall be redeemed or purchased or
otherwise acquired directly or indirectly; provided, however, that the
foregoing shall not prevent the redemption of Series A Preferred Shares
in accordance with the applicable provisions of Article XVIII of the
Declaration of Trust of the Company or as may otherwise be necessary to
preserve the Company's REIT status or the purchase or acquisition of
Series A Preferred Shares pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding Series A Preferred
Shares.
(6) If the Redemption Date is after a Record Date and before
the related Quarterly Dividend Date, the dividend payable on such
Quarterly Dividend Date shall be paid to the holder in whose name the
Series A Preferred Shares to be redeemed are registered at the close of
business on such Record Date notwithstanding the redemption thereof
between such Record Date and the related Quarterly Dividend Date or the
Company's default in the payment of the dividend due. Except as
provided above, the Company will make no payment or allowance for
unpaid dividends, whether or not in arrears, on Series A Preferred
Shares to be redeemed.
(7) In case of redemption of less than all Series A Preferred
Shares at the time outstanding, the Series A Preferred Shares to be
redeemed shall be selected pro rata from the holders of record of such
shares in proportion to the number of Series A Preferred Shares held by
such holders (with adjustments to avoid redemption of fractional
shares) or by any other equitable method determined by the Company.
(vii) VOTING RIGHTS. Except as required by law, and as set forth below,
the holders of the Series A Preferred Shares shall not be entitled to vote at
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any meeting of the shareholders for election of Trust Managers or for any other
purpose or otherwise to participate in any action taken by the Company or the
shareholders thereof, or to receive notice of any meeting of shareholders.
(A) Whenever dividends on any Series A Preferred Shares shall
be in arrears for six or more quarterly periods, whether or not such
quarterly periods are consecutive, the holders of such Series A
Preferred Shares (voting separately as a class with all other series of
preferred shares upon which like voting rights have been conferred and
are exercisable) will be entitled to vote for the election of two
additional Trust Managers of the Company at a special meeting called by
the holders of record of at least ten percent (10%) of the Series A
Preferred Shares so in arrears (unless such request is received less
than 90 days before the date fixed for the next annual or special
meeting of the shareholders) or at the next annual meeting of
shareholders, and at each subsequent annual meeting until all dividends
accumulated on such Series A Preferred Shares for the past dividend
periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set aside for
payment. In such case, the entire Board of Trust Managers of the
Company will be increased by two Trust Managers.
(B) So long as any Series A Preferred Shares remain
outstanding, the Company will not, without the affirmative vote or
consent of the holders of at least two-thirds of the Series A Preferred
Shares outstanding at the time, given in person or by proxy, either in
writing or at a meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued amount of,
any class or series of shares of capital stock ranking prior to the
Series A Preferred Shares with respect to the payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up
or reclassify any authorized shares of the Company into such shares, or
create, authorize or issue any obligation or security convertible into
or evidencing the right to purchase any such shares; or (ii) amend,
alter or repeal the provisions of the Company's Declaration of Trust or
this resolution, whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Shares
or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Series A Preferred Shares remain outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of
an Event, the Company may not be the surviving entity, the occurrence
of any such Event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting power of holders
of Series A Preferred Shares and provided further that (x) any increase
in the amount of the authorized Preferred Shares or the creating or
issuance of any other series of preferred shares, or (y) any increase
in the amount of authorized Series A Preferred Shares or any other
series of preferred shares, in each case ranking on a parity with or
junior to the Series A Preferred Shares with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers.
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The foregoing voting provisions will not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding Series A
Preferred Shares shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
(C) On each matter submitted to a vote of the holders of
Series A Preferred Shares in accordance with this resolution, or as
otherwise required by law, each Series A Preferred Share shall be
entitled to one vote. With respect to each Series A Preferred Share,
the holder thereof may designate a proxy, with each such proxy having
the right to vote on behalf of the holder.
(viii) CONVERSION. The Series A Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Company.
(ix) RESTRICTIONS ON OWNERSHIP. The Series A Preferred Shares shall be
subject in all respects to the provisions of Article XVIII of the Declaration of
Trust of the Company.
Ratification and Authorization
RESOLVED, that any and all acts and deeds of any officer or Trust
Manager of the Company taken prior to the date hereof on behalf of the Company
with regard to the foregoing resolutions are hereby approved, ratified and
confirmed in all respects as and for the acts and deeds of the Company.
FURTHER RESOLVED, that the officers of the Company be, and each of them
hereby is, severally and without the necessity for joinder of any other person,
authorized, empowered and directed to execute and deliver any and all such
further documents and instruments and to do and perform any and all such further
acts and deeds that may be necessary or advisable to effectuate and carry out
the purposes and intents of the foregoing resolutions, including, but not
limited to, the filing of a statement with the County Clerk of Harris County,
Texas, setting forth the designations, preferences, limitations and rights of
Series A Preferred Shares pursuant to Section 3.30 of TREITA, all such actions
to be performed in such manner, and all such documents and instruments to be
executed and delivered in such form, as the officer performing or executing the
same shall approve, the performance or execution thereof by such officer to be
conclusive evidence of the approval thereof by such officer and by the Board of
Trust Managers.
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