SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 10, 1999
COMMERCIAL ASSETS, INC.
(Exact name of registrant as specified in its charter)
Maryland 001-12262 84-1501789
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation File Number) Identification No.)
or organization)
3410 South Galena, Suite 210 80231
Denver, Colorado (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code (303) 614-9410
Item 5. Other Events
Reincorporation
On June 9, 1999, the holders of the common stock, par value $.01
per share (the "Common Stock") of Commercial Assets, Inc., a Maryland
corporation (the "Company") approved a proposal in which the Company's
state of incorporation would be changed from Maryland to Delaware (the
"Reincorporation"). The Reincorporation was consummated on June 10, 1999 by
a merger of the Company into Commercial Assets, Inc., a wholly owned
Delaware subsidiary (the "Delaware Corporation") newly formed for this
purpose. A Certificate of Merger and Articles of Merger were filed on June
10, 1999 with the states of Delaware and Maryland, respectively. The
Agreement and Plan of Merger, the Certificate of Incorporation and the
Bylaws have been filed as Exhibits 2.1, 3.1 and 3.2, respectively.
Item 7. Exhibits
2.1 Agreement and Plan of Merger
3.1 Certificate of Incorporation
3.2 Bylaws
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
COMMERCIAL ASSETS, INC.
By: /s/ David M. Becker
----------------------------
David M. Becker
Date: June 10, 1999
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), dated as of
March 12, 1999, is between Commercial Assets, Inc., a Maryland corporation
(the "Company") and Commercial Assets, Inc., a Delaware corporation (the
"Delaware Corporation"). The Company and the Delaware Corporation are
hereafter sometimes collectively referred to as the "Constituent
Corporations."
WHEREAS, the Company is a corporation duly organized and existing
under the laws of the State of Maryland;
WHEREAS, the Delaware Corporation is a corporation duly organized and
existing under the laws of the State of Delaware;
WHEREAS, the respective Board of Directors of the Company and the
Delaware Corporation have determined that it is advisable and in the best
interests of each of such corporations that the Company merge with and into
the Delaware Corporation upon the terms and subject to the conditions of
this Merger Agreement for the purpose of effecting the reincorporation of
the Company in the State of Delaware; and
WHEREAS, the respective Boards of Directors of the Company and the
Delaware Corporation have, by resolutions duly adopted, approved this
Merger Agreement; the Company has adopted this Merger Agreement as the sole
stockholder of the Delaware Corporation and the Board of Directors of the
Company has directed that this Merger Agreement has submitted to a vote of
the the Company Common Stock shareholders.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, the Company and the Delaware Corporation hereby
agree as follows:
l. Merger. The Company shall be merged with and into the Delaware
Corporation (the "Merger"), and the Delaware Corporation shall be the
surviving corporation (hereafter sometimes referred to as the "Surviving
Corporation"). The Merger shall become effective upon the time and date of
filing with the Secretary of State of Delaware of a Certificate of Merger
under Section 252 of the General Corporation Law of the State of Delaware
(the "Effective Time").
2. Governing Documents.
(a) The Certificate of Incorporation of the Delaware
Corporation, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation without
change or amendment until thereafter amended in accordance with the
provisions thereof and applicable laws.
(b) The Bylaws of the Delaware Corporation, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation without change or amendment until thereafter amended
in accordance with the provisions thereof and applicable laws.
3. Succession. At the Effective Time, the separate corporate
existence of the Company shall cease, and the Delaware Corporation shall
possess all the rights, privileges, powers and franchises of a public and
private nature and be subject to all the restrictions, disabilities and
duties of the Company; and all the rights, privileges, powers and
franchises of the Company, and all property, real, personal and mixed, and
all debts due to the Company on whatever account, as well as share
subscriptions and all other things in action or belonging to the Company,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest shall
thereafter be the property of the Surviving Corporation as if they were of
the Company, and the title to any real estate vested by deed or otherwise
in the Company, shall not revert or be in any way impaired by reason of the
General Corporation Law of the State of Delaware; but all rights of
creditors and all liens upon any property of the Company shall be preserved
unimpaired, and all debts, liabilities and duties of the Company shall
thence forth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities and duties had
been incurred or contracted by it. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Company, its
shareholders, Board of Directors and committees thereof, officers and
agents which were valid and effective immediately prior to the Effective
Time, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Delaware
Corporation and shall be as effective and binding thereon as the same were
with respect to the Company. The employees and agents of the Company shall
become the employees and agents of the Delaware Corporation and continue to
be entitled to the same rights and benefits which they enjoyed as employees
and agents of the Company. The officers and directors of the Company shall
become the officers and directors of the Surviving Corporation until such
time as successors are duly elected in accordance with the Bylaws of the
Surviving Corporation and any applicable laws. The requirements of any
plans or agreements of the Delaware Corporation involving the issuance or
purchase by the Company of certain shares of its capital stock shall be
satisfied by the issuance or purchase of a like number of shares of the
Delaware Corporation stock.
4. Further Assurances. From time to time, as and when required by
the Delaware Corporation, or by its successors and assigns, there shall be
executed and delivered on behalf of the Company such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Delaware
Corporation the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of the
Company and otherwise to carry out the purposes of this Merger Agreement,
and the officers of the Delaware Corporation are fully authorized in the
name and on behalf of the Company or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and other
instruments.
5. Conversion of Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof,
(a) Each share of the Company Common Stock outstanding
immediately prior to the Effective Time shall be changed and converted into
and shall be one fully paid and nonassessable share of Delaware Common
Stock, and
(b) The 100 shares of Delaware Common Stock presently issued
and outstanding in the name of the Company shall be cancelled and retired
and resume the status of authorized and unissued shares of Delaware Common
Stock, and no shares of Delaware Common Stock or other securities of the
Delaware Corporation shall be issued in respect thereof.
(c) Exchange of Certificates. The Company shall designate a
bank or trust company to act as agent for the holders of Shares in
connection with the Merger (the "Exchange Agent") to receive the funds to
which holders of the Company Common Stock shall become entitled pursuant
this Article 5. Such funds shall be invested by the Exchange Agent as
directed by the Company or the Surviving Corporation.
(1) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, the Exchange Agent shall mail to each
holder of record of a Certificate or Certificates, whose shares of the
Company Common Stock were converted into the right to receive Delaware
Common Stock (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as the Company and the
Delaware Corporation may reasonably specify) and (ii) instructions for use
in effecting the surrender of Certificates in exchange for Delaware
Certificates. Upon surrender of a Certificate for cancellation to the
Exchange Agent or to such other agent or agents as may be appointed by the
Company, together with such letter of transmittal, duly executed, the
holder of such Certificate shall be entitled to receive in exchange
therefor the Delaware Certificate for each Share formerly represented by
such Certificate, and the Certificate so surrendered shall forthwith be
cancelled. If the Delaware Certificate is to be made to a person other than
the person in whose name the surrendered Certificate is registered, it
shall be a condition of exchange that the Certificate so surrendered shall
be properly endorsed or shall be otherwise in proper form for transfer and
that the person requesting such exchange shall have paid any transfer and
other taxes required by reason of the exchange of the Certificate to a
person other than the registered holder of the Certificate surrendered or
shall have established to the satisfaction of the Surviving Corporation
that such tax either has been paid or is not applicable. Until surrendered
as contemplated by this section, each Certificate shall be deemed, at any
time after the Effective Time, to represent only the right to receive a
Delaware Certificate as contemplated by this section.
(2) Transfer Books; No Further Ownership Rights in
Shares. At the Effective Time, the stock transfer books of the Company
shall be closed and thereafter there shall be no further registration of
transfers of Shares on the records of the Company. From and after the
Effective Time, the holders of Certificates which immediately prior to the
Effective Time represented Company Common Stock shall cease to have any
rights with respect to such Company Common Stock, except as otherwise
provided for herein or by applicable law. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason,
they shall be cancelled and exchanged as provided in this Article II.
(3) Termination of Fund; No Liability. At any time
following six months after the Effective Time, the Surviving Corporation
shall be entitled to require the Exchange Agent to deliver to it any
Delaware Certificates which had been made available to the Exchange Agent
and which have not been disbursed to holders of Certificates, and
thereafter such holders shall be entitled to look to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws)
only as general creditors thereof with respect to the Delaware Certificates
payable upon due surrender of their Certificates, without any interest
thereon. None of the Surviving Corporation, the Company or the Exchange
Agent shall be liable to any holder of a Certificate for a Delaware
Certificate delivered to a public official pursuant to any applicable
abandoned property, escheat or similar laws.
(4) Lost Certificates. In the event any Certificate shall
have been lost, stolen or destroyed, upon the making and delivery of an
affidavit of that fact by the person claiming such Certificate to have been
lost, stolen or destroyed and, if required by the Company, the posting by
such person of a bond in such reasonable amount as the Company may direct
as indemnity against any claim that would be made against the Delaware
Corporation, the Surviving Corporation or the Company with respect to such
Certificate, the Exchange Agent shall issue, in exchange for such lost,
stolen or destroyed Certificate, a Delaware Certificate deliverable in
respect of such Certificate pursuant to this Article 5.
6. Conditions to Merger.
(1) The Merger shall have received the requisite approval
of the holders of the Company Common Stock and the Delaware Common
Stock.
(2) The holders of not more than 100,000 shares of the
Company Common Stock shall have exercised the right of appraisal under
Maryland law by delivering a notice of objection to the Company at or prior
to the stockholders meeting held to approve this Agreement.
7. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented the Company Common Stock shall be deemed for all purposes to
evidence ownership of, and to represent, Delaware Common Stock, into which
the Company Common Stock formerly represented by such certificates have
been converted as herein provided. The registered owner on the books and
records of the Delaware Corporation or its transfer agents of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the Delaware
Corporation or its transfer agents, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividends and
other distributions upon the shares of Delaware Common Stock, evidenced by
such outstanding certificate as above provided.
8. Board of Directors and Officers. The members of the Board of
Directors and the officers of the Surviving Corporation immediately after
the Effective Time of the Merger shall be the persons who were the members
of the Board of Directors and the officers, respectively, of the Company
immediately prior to the Effective Time, and such persons shall serve in
such offices, respectively, for the terms provided by law or in the Bylaws,
or until their respective successors are elected and qualified.
9. Options. Upon the Effective Time, each outstanding option
("Option") of the Company to purchase the Company Common Stock shall be
converted into and become an option to purchase the same number of shares
of Delaware Common Stock at the same exercise price, and upon the same
terms and subject to the same conditions as set forth in each Option as in
effect on the Effective Time. As of the Effective Time, the Delaware
Corporation shall assume all of the obligations of the Company under the
Warrants.
10. Other Employee Benefit Plans. As of the Effective Time, the
Delaware Corporation hereby assumes all obligations of the Company under
any and all employee benefit plans in effect as of the Effective Time or
with respect to which employee rights or accrued benefits are outstanding
as of the Effective Time.
11. Amendment. Subject to applicable law, this Merger Agreement may
be amended, modified or supplemented by written agreement of the parties
hereto at any time prior to the Effective Time with respect to any of the
terms contained herein.
12. Abandonment. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either the Company or the Delaware Corporation, or both,
notwithstanding approval of this Merger Agreement by the stockholders of
the Delaware Corporation or the shareholders of the Company or both, if
circumstances arise which, in the opinion of the Board of Directors of the
Company make the Merger inadvisable.
13. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement the same may be executed in two or more counterparts,
each of which shall be deemed to be an original and the same agreement.
IN WITNESS WHEREOF, the Company and the Delaware Corporation
have caused this Merger Agreement to be signed by their respective duly
authorized officers as of the date first above written.
COMMERCIAL ASSETS, INC.
A Maryland Corporation
By: /s/ Terry Considine
-----------------------------
Terry Considine
Chairman and Chief Executive
Officer
ATTEST:
By: /s/ David M. Becker
------------------
David M. Becker
Secretary
COMMERCIAL ASSETS, INC.,
A Delaware Corporation
By: /s/ Terry Considine
-----------------------------
Terry Considine
Chairman and Chief Executive
Officer
ATTEST:
By: /s/ David M. Becker
----------------------
David M. Becker
Secretary
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
COMMERCIAL ASSETS, INC.
(Incorporated on March 11, 1999)
FIRST: Name. The name of the Corporation is Commercial Assets,
Inc. (hereinafter the "Corporation").
SECOND: Address. The address of the registered office of the
Corporation in the State of Delaware is 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of its registered agent at that
address is Corporation Service Company.
THIRD: Purpose. The purposes for which the Corporation is
formed are to engage in any lawful act or activity (including, without
limitation or obligation, engaging in business as a real estate investment
trust under the Code (as defined in Article SEVENTH)) for which
corporations may be organized under the General Corporation Law of the
State of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
For purposes of this Certificate, "REIT" means a real estate investment
trust as defined in Section 856 of the Code.
FOURTH: Stock.
4.1 The total number of shares of stock which the Corporation
shall have authority to issue is 100,000,000 shares of capital stock,
consisting of 75,000,000 shares of Common Stock, each having a par value of
$.01 and 25,000,000 shares of Preferred Stock, par value $.01 per share.
4.2 Shares of Preferred Stock may be issued from time to time
in one or more classes or series as may be determined form time to time by
the Board of Directors of the corporation, each such class or series to be
distinctly designated. Except in respect of the particulars fixed by the
Board of Directors for classes or series provided for by the Board of
Directors as permitted hereby, all shares of Preferred Stock shall be of
equal rank and shall be identical. All shares of any one series of
Preferred Stock so designated by the Board of Directors shall be alike in
every particular, except that shares of any one series issued at different
times may differ as to the fates from which dividends thereon shall be
cumulative. The voting rights, if any, of each such class or series and the
preferences and relative, participating, optional and other special rights
of each such class or series and the qualifications, limitations and
restrictions thereof, if any, may differ from those of any and all other
classes or series at any time outstanding; and the Board of Directors of
the Corporation is hereby expressly granted authority to fix, by
resolutions duly adopted prior to the issuance of any shares of a
particular class or series of Preferred Stock so designations, preferences
and relative, participating, optional and other special rights and the
qualifications, limitations and restrictions of such class or series,
including but without limiting the generality of the foregoing, the
following:
(A) The distinctive designation of, and the number of shares of
Preferred Stock which shall constitute, such class or series, and
such number may be increased (except where otherwise provided by the
Board of Directors) or decreased (but not below the number of shares
thereof then outstanding) from to time by like action of the Board of
Directors;
(B) The rate and time at which, and the terms and conditions
upon which, dividends, if any, on Preferred Stock of such class or
series shall be paid, the extent of the preferences or relation, if
any, of such dividends to the dividends payable on any other class or
classes, or series of the same or other classes of stock and whether
such dividends shall be cumulative or non-cumulative;
(C) The right, if any, of the holders of Preferred Stock of
such class or series to convert the same into, or exchange the same
for, shares of any other class or classes or of any series of the
same or any other class or classes of stock and the terms and
conditions of such conversion or exchange;
(D) Whether or not Preferred Stock of such class or series
shall be subject to redemption, and the redemption price or prices
and the time or times at which, and the terms and conditions upon
which, Preferred Stock of such class or series may be redeemed;
(E) The rights, if any, of the holders of Preferred Stock of
such class or series upon the voluntary or involuntary liquidation of
the Corporation;
(F) The terms of the sinking fund or redemption or purchase
account, if any, to be provided for the Preferred Stock or such class
or services; and
(G) The voting powers, if any, of the holders of such class or
series of Preferred Stock.
4.3 Except as otherwise provided in the charter of the
Corporation, the board of the Corporation, the Board of Directors shall
have authority to authorize the issuance, from time to time without any
vote of other action by the stockholders, of any or all shares of stock of
the Corporation of any class or series at any time authorized, and any
securities convertible into or exchangeable for any such shares, and any
options, rights and warrants to purchase or acquire any such shares, in
each case to such persons and on such terms (including as a dividend or
distribution on or with respect to, or in connection with a split or
combination of, the outstanding shares of stock of the same or any other
class) as the Board of Directors from time to time in its discretion
lawfully may be determine; provided, however, that the consideration for
the issuance of shares of the Corporation having par value (unless issued
as such a dividend or distribution or in connection with such a split of
combination) shall not be less than such par value. Shares so issued shall
be fully paid stock, and the holders of such stock shall not be liable for
any further call or assessments thereon. No holder of stock of any class
shall have the preemptive right to subscribe to or purchase any additional
shares of any class, or any bonds, notes, debentures or other obligations
convertible into stock; provided, however, that the Board of Directors may,
in authorizing the issuance of stock or any class, confer any preemptive
right that the Board of Directors may deem advisable in connection with
such issuance.
4.4 Except as may otherwise be provided in the charter of the
Corporation, each holder of the Common Stock shall be entitled to one vote
for each share of Common Stock held by him.
4.5 All persons who shall acquire stock in the Corporation
shall acquire the same subject to the provisions of this Certificate and
By-Laws of the Corporation.
4.6 The Board of Directors may classify or reclassify any
unissued stock, whether now or hereafter authorized, by setting or changing
the preferences, conversion or other rights, voting powers, dividends,
qualifications or terms or conditions of redemption of such stock.
FIFTH: Incorporator. The name and mailing address of the Sole
Incorporator is as follows:
Name Address
---- -------
Mary E. Keogh P.O. Box 636
Wilmington, DE 19899
SIXTH: Board of Directors and Management of Corporation. The
following provisions are inserted for the management of the business and
the conduct of the affairs of the Corporation, and for further definition,
limitation and regulation of the powers of the Corporation and of its
directors and stockholders:
6.1 The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors.
6.2 The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the Bylaws of
the Corporation.
6.3 The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the Bylaws of the
Corporation. The directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as may
be possible, of one-third of the total number of directors constituting the
entire Board of Directors. The names and classes of the initial directors
are:
Terry Considine Class III
Thomas L. Rhodes Class I
Bruce E. Moore Class III
Raymond T. Baker Class I
Bruce D. Benson Class II
Thomas C. Fries Class I
Donald L. Kortz Class II
Robert J. Malone Class II
Class I directors shall be elected to serve until the first Annual Meeting
of Stockholders, Class II directors to serve until one year thereafter and
Class III directors to serve until two years thereafter. At each succeeding
annual meeting of stockholders, successor to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term.
If the number of directors is changed in accordance with the terms of the
charter of the Corporation, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class
as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office until the
annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to the
director's prior death, resignation, disqualification or removal from
office. A director may be removed for cause only, and not without cause,
and only action of the stockholders taken by holders of at least 75% of all
shares of stock then entitled to vote for the election of directors. Any
vacancy on the Board of Directors that results from a newly created
directorship may be filled by the affirmative vote of a majority of the
Board of Directors then in office, and any other vacancy occurring on the
Board of Directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. Any
vacancy on the Board of Directors that results from the removal of a
director also may be filled by the stockholders by the affirmative vote of
holders of a majority of all shares of stock then entitled to vote for the
election of directors. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining
term as that of his predecessor.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation
shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of stockholders, the election,
term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of the charter of the
Corporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to Section 6.3 of this Article SIXTH unless
expressly provided by such terms. Election of directors need not be written
ballot unless the Bylaws so provide.
6.4 To the fullest extent permitted by Delaware law, no
director shall be personally liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law or (iv) for any transaction from which the director derived
an improper personal benefit. Any repeal or modification of this Article
SIXTH by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time
of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
6.5 In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject, nevertheless, to the
provisions of the GCL, this Certificate of Incorporation, and any Bylaws
adopted by the stockholders; provided, however, that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the directors
which would have been valid if such Bylaws had not been adopted.
6.6 The Corporation shall seek to elect and maintain status as
a REIT under Sections 856-860 of the Code. The Board of Directors shall use
its reasonable best efforts to cause the Corporation to satisfy the
requirements for qualification as a REIT under the Code, including, but not
limited to, the ownership of its outstanding stock, the nature of its
assets, the sources of its income, and the amount and timing of its
distributions to its stockholders; however, if the Board of Directors
determines that it is no longer in the best interests of the Corporation to
continue to be qualified as a REIT, the Board of Directors may revoke or
otherwise terminate the Corporation's REIT election pursuant to Section
856(g) of the Code. The Board of Directors also may determine that
compliance with any restriction or limitation on stock ownership and
transfers set forth in Article SEVENTH is no longer required for REIT
qualification.
SEVENTH: Restriction on Transfer and Ownership of Shares
7.1 Whenever it is deemed by the Board of Directors to be
prudent in protecting the tax status of the Corporation, the Board of
Directors may require to be filed with the Corporation a statement or
affidavit from each proposed transferee of shares of the Corporation
setting forth the number of shares already owned by the transferee and any
related person(s) specified in the form prescribed by the Board of
Directors for that purpose. All contracts for the sale or other transfer of
shares of the Corporation shall be subject to this provision.
7.2 Prior to any transfer or transaction which would cause the
stockholder to own, directly or indirectly, shares in excess of the "Limit"
as defined in Section 7.4 of this Article SEVENTH, and in any event upon
demand of the Board of Directors, each stockholder shall file with the
Corporation an affidavit setting forth the number of shares of the
Corporation (A) owned directly and (B) owned indirectly (for purposes of
this Section, shares not owned directly shall be deemed to be owned
indirectly by a person if that person would be the beneficial owner of such
shares for purposes of Rule 13d-3, or any successor rule thereto,
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, and/or would be considered to own such shares by
reason of the attribution rules in Section 544 of the Internal Revenue Code
of 1954, as amended (the "Code")), by the person filing the affidavit. The
affidavit to be filed with the Corporation shall set forth all information
required to be reported in returns filed by stockholders under Regulation
1.857-9 issued by the Internal Revenue Service, or similar provisions of
any successor regulation, and in reports to be filed under Section 13(d) of
the Securities Exchange Act of 1934. The affidavit, or an amendment
thereto, must be filed with the Corporation within 10 days after demand
therefor and at least 15 days prior to any transfer or transaction which,
if consummated, would cause the filing person to hold shares in excess of
the "Limit," as defined in Section 7.4 of this Article SEVENTH. The Board
of Directors shall have the right, but shall not be required, to refuse to
transfer any shares purportedly transferred other than in compliance with
the notice provisions of this Article SEVENTH.
7.3 Any acquisition of shares of the Corporation that would
result in the disqualification of the Corporation as a real estate
investment trust under the Code shall be void ab initio to the fullest
extent permitted under applicable law and the intended transferee of such
shares shall be deemed never to have had an interest therein. If the
foregoing provision is determined to be void or invalid by virtue of any
legal decision, statute, rule or regulation, then the transferee of such
shares shall be deemed, at the option of the Corporation, to have acted as
agent on behalf of the Corporation in acquiring such shares and to hold
such shares on behalf of the Corporation.
7.4 Notwithstanding any other provision hereof to the contrary,
and subject to the provisions of Section 7.5 of this Article SEVENTH, no
person, or persons acting as a group, shall at any time directly or
indirectly acquire ownership in the aggregate of more than 9.8% of the
outstanding shares of the Corporation (the "Limit"). Shares which would but
for this Section 7.4, be owned by a person or a group of persons in excess
of the Limit at any time shall be deemed "Excess Shares." For the purposes
of determining and dealing with Excess Shares, the term "ownership" shall
be defined to include shares constructively owned by a person under Section
544 of the Code and shall also include shares beneficially owned by a
person for purposes of Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, and the term
"group" shall have the same meaning as the term has for purposes of Section
13(d) (3) of such Act. All shares of the Corporation which any person has
the right to acquire upon exercise of outstanding rights, options and
warrants, and upon conversion of any securities convertible into shares, if
any shall be considered outstanding for purposes of the Limit if such
inclusion will cause such person to own more than the Limit. The Board of
Directors shall have the right, but shall not be required, to refuse to
transfer shares if, as a result of the transfer, any person would hold
Excess Shares.
7.5 The Limit set forth in Section 7.4 of this Article SEVENTH
shall not apply to the acquisition of shares of the Corporation by an
underwriter in a public offering of shares of the Corporation, or in any
transaction involving the issuance of shares by the Corporation, in which
the Board of Directors determines that the underwriter or other person or
party initially acquiring such shares will timely distribute such shares to
or among others such that, following such distribution none of such Shares
will be Excess Shares. The Board of Directors in its discretion may exempt
from the Limit and from the filing requirements of Section 2 of this
Article SEVENTH ownership or transfers of certain designated shares while
owned by or transferred to a person who has provided the Board of Directors
with evidence and assurances acceptable to the Board of Directors that the
qualification of the Corporation as a real estate investment trust under
the Code would not be jeopardized thereby.
7.6 All Excess Shares may be redeemed by the Corporation, in
the discretion of the Board of Directors, by mailing a written notice of
redemption to the holder of the Excess Shares not less than one week prior
to the redemption date as determined by the Board of Directors and included
in the notice. The price to be paid for Excess Shares shall be equal to (A)
the closing price of the shares on the last business day prior to the
redemption date on the principal national securities exchange on which such
shares are listed or admitted to trading or (B) if such shares are not so
listed or admitted to trading, the closing bid price on such last business
day as reported on the NASDAQ System, if quoted thereon, or (C) if not
determinable as aforesaid, the net asset value of the shares redeemed, as
determined in good faith by the Board of Directors. Notwithstanding the
foregoing sentence, in no event may the redemption price be greater than
the net asset value of the shares redeemed, as determined in good faith
greater than the net asset value of the shares redeemed, as determined in
good faith by the Board of Directors. The price paid for any shares
redeemed shall be paid on the redemption date fixed by the Board and
included in the notice to the shareholder. From and after the date fixed
for redemption, the holder of any shares so called for redemption shall
cease to be entitled to any distributions and other benefits with respect
to such shares, except only the right to payment of the redemption price
fixed as aforesaid.
7.7 Nothing contained in this Article SEVENTH or in any other
provision hereof shall limit the authority of the Board of Directors to
take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders by preservation of the
Corporation's status as a qualified real estate investment trust under the
Code.
7.8 For purposes of this Article SEVENTH only, the term
"person" shall include individuals, corporations, limited partnerships,
general partnerships, joint stock companies or associations, joint
ventures, associations, consortia, companies, trusts, banks, trust
companies, land trusts, common law trusts, business trusts, or other
entities and governments and agencies and political subdivisions thereof.
7.9 If any provision of this Article SEVENTH or any application
of any such provision is determined to be invalid by any federal or state
court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision
shall be affected only to the extent necessary to comply with the
determination of such court.
7.10 The Board of Directors shall have the right, but shall not
be required, to refuse to transfer any shares of the Corporation to any
person if the ownership of shares by such person would result in the
imposition of a tax on the Corporation or any other holder (nominee or
otherwise) of shares of the Corporation (a "Disqualified Organization").
Any shares of the Corporation owned by a Disqualified Organization may, in
the discretion of the Board, be redeemed by the Corporation at the
redemption price and in the same manner as Excess Shares may be redeemed
pursuant to Section 7.6 of this Article SEVENTH. If the foregoing provision
is determined to be void or invalid by virtue of any legal decision,
statute, rule or regulation, then any Disqualified Organization holding
shares of the Corporation shall be deemed, at the option of the
Corporation, to have acted as an agent of the Corporation in acquiring such
shares and to hold such shares on behalf of the Corporation. The Board of
Directors may adopt such procedures regarding the transfer and redemption
of shares as it seems necessary to implement this Section 7.10.
EIGHTH: Meetings. Meetings of stockholders may be held within
or without the State of Delaware, as the Bylaws may provide. The books of
the Corporation may be kept (subject to any provision contained in the GCL)
outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the
Corporation.
NINTH: Amendment. The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and
all rights conferred upon stockholders herein are granted subject to this
reservation.
TENTH: Business Combination. The Corporation elects not to be
governed by Section 203 of the GCL relating to business combinations with
interested stockholders.
ELEVENTH: Stockholder Action by Unanimous Written Consent. The
Corporation elects, pursuant to Section 228 of the GCL, to permit
stockholder action in lieu of a meeting upon the unanimous written consent
of all stockholders entitled to take such action at a meeting.
TWELFTH: This Amended and Restated Certificate of Incorporation
has been duly adopted pursuant to Sections 242 and 245 of the GCL.
I, THE UNDERSIGNED, being an authorized officer of the
Corporation, do make this Certificate, hereby declaring and certifying that
this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this ____ day of June, 1999.
/s/ David M. Becker
--------------------------------
David M. Becker
Secretary
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
Commercial Assets, Inc.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. Other Offices. The Corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such
time and place, either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors.
Section 2. Annual Meetings. The Annual Meetings of Stockholders
for the election of directors shall be held on such date and at such time,
during the 31 day period form June 25 to July 25, as shall be designated
from time to time by the Board of Directors. Any other proper business may
be transacted at the Annual Meeting of Stockholders.
Section 3. Special Meetings. Unless otherwise required by law
or by the certificate of incorporation of the Corporation, as amended and
restated from time to time (the "Certificate of Incorporation"), special
meetings of stockholders, for any purpose or purposes, may be called by (i)
a majority of the board of directors, (ii) a majority of the Independent
Directors, (iii) the chairman of the board, (iv) the president, (v) a vice
president, (vi) the secretary or (vii) an assistant secretary. Special
meetings of stockholders shall be called by the secretary upon the written
request of the holders of shares entitled to not less than twenty-five
percent of all the votes entitled to be cast at such meeting by notice
mailed within ten days after the receipt of such request. Such request
shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The secretary shall inform such
stockholders of the reasonably estimated cost of preparing and mailing such
notice of the meeting, and upon payment by such stockholders to the
corporation of such costs the secretary shall give notice stating the
purpose or purposes of the meeting. No special meeting need be called upon
the request of the holders of shares entitled to cast less than a majority
of all votes entitled to be cast at such meeting, to consider any matter
which is substantially the same as a matter voted upon at any special
meeting of the stockholders held during the preceding twelve months. At a
Special Meeting of Stockholders, only such business shall be conducted as
shall be specified in the notice of meeting (or any supplement thereto).
Section 4. Notice. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting,
and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Unless otherwise required by law, the written notice
of any meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. In the case of a special meeting of stockholders convened at the
request of stockholders, as provided for in Section 2.03 above, the notice
herein provided for shall be given by the secretary, in the manner herein
provided, within ten days after receipt of such request of stockholders.
Such a special meeting shall be held not less than twenty nor more than
sixty days after receipt of said request of stockholders.
Section 5. Adjournments. Any meeting of the stockholders may be
adjourned from time to time to reconvene at the same or some other place,
and notice need not be given of any such adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business
which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at
the meeting.
Section 6. Quorum. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority of the capital
stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings
of the stockholders for the transaction of business. A quorum, once
established, shall not be broken by the withdrawal of enough votes to leave
less than a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, in the manner provided in
Section 5, until a quorum shall be present or represented.
Section 7. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, any question brought before
any meeting of stockholders, other than the election of directors, shall be
decided by the vote of the holders of a majority of the total number of
votes of the capital stock represented and entitled to vote thereat, voting
as a single class. Unless otherwise provided in the Certificate of
Incorporation, and subject to Section 5 of Article V hereof, each
stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in person or by proxy but
no proxy shall be voted on or after three years from its date, unless such
proxy provides for a longer period. The Board of Directors, in its
discretion, or the officer of the Corporation presiding at a meeting of
stockholders, in such officer's discretion, may require that any votes cast
at such meeting shall be cast by written ballot.
Section 8. Nature of Business at Meetings of Stockholders. No
business may be transacted at an annual meeting of stockholders, 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 Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Company (i) who
is a stockholder of record on the date of the giving of the notice provided
for in this Section 8 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 8.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Secretary of the Company.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Company not less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or
after such anniversary date, notice by the stockholder in order to be
timely must be 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 annual
meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder 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 stockholder, (iii) the class or series and number of shares
of capital stock of the Company which are owned beneficially or of record
by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder 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
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 8; provided,
however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 8 shall
be deemed to preclude discussion by any stockholder of any such business.
If the Chairman of an annual meeting determines that business was not
properly brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business shall not be
transacted.
Section 9. Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Company, except as may be otherwise provided
in the Certificate of Incorporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number
of directors in certain circumstances. Nominations of persons for election
to the Board of Directors may be made at any annual meeting of
stockholders, or at any special meeting of stockholders called for the
purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Company (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 9 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 9.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Company.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Company (a) in the case of an annual meeting, not less than sixty (60)
days nor more than ninety (90) days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by
the stockholder in order 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 annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first
occurs; and (b) in the case of a special meeting of stockholders called for
the purpose of electing directors, not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Company which are owned beneficially or of record
by the person and (iv) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the Company which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder 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 stockholder, (iv) a
representation that such stockholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder 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 directors
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 director if elected.
No person shall be eligible for election as a director of the
Company unless nominated in accordance with the procedures set forth in
this Section 9. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
Section 10. Action by Unanimous Written Consent. Any action
required or permitted to be taken by the stockholders of the Corporation at
a duly called annual or special meeting of stockholders of the Corporation
may be taken by unanimous written consent.
Section 11. List of Stockholders Entitled to Vote. The officer
of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for
a period of at least ten days prior to the meeting either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 12. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by Section 12 of this Article
II or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 13. Conduct of Meetings. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the
conduct of the meeting of the stockholders as it shall deem appropriate.
Except to the extent inconsistent with such rules and regulations as
adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) the determination of when the polls shall
open and close for any given matter to be voted on at the meeting; (iii)
rules and procedures for maintaining order at the meeting and the safety of
those present; (iv) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the
meeting shall determine; (v) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (vi) limitations on the time
allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
Section 1. Number, Term and Election of Directors. During all
periods in which the Corporation seeks to be qualified to be taxed as a
real estate investment trust ("REIT") under the Internal Revenue Code of
1986 (as amended), the Board of Directors shall include Independent
Directors (as defined below). The number of Independent Directors shall not
be: (i) less than four if the number of Directors is eight or greater; (ii)
less than three if number of Directors is six or seven; and (iii) less than
two if the number of Directors is less than six.
At such time as the Corporation seeks to qualify as a real
estate investment trust (a "REIT"), a majority of the Board of Directors
shall be Independent Directors. For purposes of these By-Laws, "Independent
Director" shall mean a director of the Corporation who is not affiliated,
directly or indirectly, with the person or entity responsible for directing
or performing the day-to-day business affairs of the corporation (the
"Advisor"), including a person or entity to which the Advisor subcontracts
substantially all of the functions of the Advisor, whether by ownership of,
ownership interest in, employment by, any material business or professional
relationship with, or by serving as an officer or director of, the Advisor
or an affiliated business entity of the Advisor. Independent Directors
shall also mean those who perform no other services for the Corporation,
except as director(s). An indirect relationship shall include circumstances
in which a member of the immediate family of a director (such person's
spouse, parents, children, siblings, mothers and fathers-in-law, sons and
daughters-in-law, brothers and sisters-in-law) has one of the foregoing
relationships with the Advisor or the Corporation. For purposes of these
By-Laws, "Sponsor" shall mean any person directly or indirectly instrumental
in organizing, wholly or in part, the Corporation, the Advisor or any person
who will manage or participate in the management of the Corporation, and any
affiliate of any such person, but does not include a person whose only
relationship with the Corporation is as that of an independent property
manager, whose only compensation is as such. "Sponsor" also does not include
wholly independent third parties such as attorneys, accountants and
underwriters whose only compensation is for professional services.
Notwithstanding the foregoing, if a majority of the existing Independent
Directors of the Company deem a director to be independent, such person
shall be an Independent Director.
The board of directors shall be divided into three classes,
each class to consist of not less than one nor more than five directors.
All classes shall be as nearly equal in number as possible.
Until the first annual meeting of stockholders or until
successors are duly elected and qualify, the board shall consist of the
persons named as such in the corporation's charter whose initial terms
shall be for the periods specified therein. After the initial term of each
initial director, each director shall serve for a term of three years. If
the number of directors is increased by the board of directors and the
board of directors elects additional directors to fill the vacancies
resulting from the increase, the board shall specify the class into which
such directors are being elected. Directors need not be stockholders in the
corporation.
Section 2. Vacancies. Unless otherwise required by law or the
Certificate of Incorporation, vacancies arising for any cause other than by
reason of an increase in the number of directors may be filled only by a
majority of the directors then in office, though less than a quorum;
provided, however, that if, in the circumstances described in Section 1 a
majority of the board of directors shall be Independent Directors, then
Independent Directors shall nominate replacements for vacancies among the
Independent Directors. Any vacancy occurring by reason of an increase in
the number of directors may be filled by action of a majority of the entire
board of directors then in office. If the stockholders of any class or
series are entitled separately to elect one or more directors, a majority
of the remaining directors elected by that class or series may fill any
vacancy among the number of directors elected by that class or series. The
directors so chosen shall hold office until the next annual election and
until their successors are duly elected and qualified, or until their
earlier death, resignation or removal.
Section 3. Duties and Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
The board of directors shall be responsible for establishing
the investment policies of the corporation and shall have a fiduciary duty
towards the stockholders of the corporation with respect thereto, and such
investment policies shall be reviewed, ratified or amended, from time to
time but at least annually, by action by the majority of the directors,
including a majority of the Independent Directors. In addition, action by
the majority of the directors, including a majority of the Independent
Directors, is required to establish or approve modifications to the
policies of the corporation with respect to: the content, frequency and
stockholder review of annual reports; changes to the contract with the
corporation's Advisor; and compensation of the Advisor.
Section 4. Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
The first meeting of each newly elected board of directors shall be held as
soon as practicable after the annual meeting of the stockholders at which
the directors were elected. The meeting may be held at such time and place
as shall be specified in a notice given as hereinafter provided for special
meetings of the board of directors, or as shall be specified in a written
waiver signed by all of the directors as provided in Article III, except
that no notice shall be necessary if such meeting is held immediately after
the adjournment, and at the site, of the annual meeting of stockholders.
Regular meetings of the Board of Directors may be held without notice at
such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be
called by the Chairman, if there be one, the President, a majority of the
members of the executive committee or by any two directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the
date of the meeting, by telephone or telegram on twenty-four (24) hours'
notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances.
Section 5. Quorum. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting of the time
and place of the adjourned meeting, until a quorum shall be present.
Section 6. Actions by Written Consent. Unless otherwise
provided in the Certificate of Incorporation, or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors
or of any committee thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes
of proceedings of the Board of Directors or committee.
Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation, members of the
Board of Directors of the Corporation, or any committee thereof, may
participate in a meeting of the Board of Directors or such committee by
means of a 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 7 shall
constitute presence in person at such meeting.
Section 8. Committees. The board of directors may appoint from
among its members an executive committee, an audit committee and other
committees composed of two or more directors, provided that a majority of
the members shall be Independent Directors. The board of directors may
delegate to any committees any of the powers of the board of directors to
the extent permitted by applicable law.
Notice of committee meetings shall be given in the same manner
as notice for special meetings of the board of directors.
One-third of the members of any committee shall be present in
person at any meeting of such committee in order to constitute a quorum for
the transaction of business at such meeting, and the act of a majority
present shall be the act of such committee. The board of directors may
designate a chairman of any committee and such chairman or any two members
of any committee may fix the time and place of its meetings unless the
board shall otherwise provide. In the absence or disqualification of any
member of any committee, the members thereof present at any meeting and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another director to act at the meeting in the place of
such absent or disqualified members; provided, however, that in the event
of the absence or disqualification of and Independent Director, such
appointee shall be an Independent Director.
The committees shall keep minutes of their proceedings and
shall report the same to the board of directors at the meeting next
succeeding, and any action by the committees shall be subject to revision
and alteration by the board of directors, provided that no rights of third
persons shall be affected by any such revision or alteration.
The board of directors shall have the power at any time to
change the membership of any committee, to fill all vacancies, to designate
alternate members to replace any absent or disqualified member, or to
dissolve any such committee.
Section 9. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director, payable in cash or securities. No
such payment shall preclude any director from serving the Corporation in
any other capacity and receiving compensation therefor. Members of special
or standing committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or
officers are directors or officers or have a financial interest, shall be
void or voidable solely for this reason, or solely because the director or
officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or
transaction, or solely because the director or officer's vote is counted
for such purpose if (i) the material facts as to the director or officer's
relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
or (ii) the material facts as to the director or officer's relationship or
interest and as to the contract or transaction are disclosed or are known
to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum
at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary and
a Treasurer. The Board of Directors, in its discretion, also may choose a
Chairman of the Board of Directors (who must be a director) and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other
officers or agents as it shall deem necessary. Any number of offices may be
held by the same person, unless otherwise prohibited by law or the
Certificate of Incorporation. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of
the Board of Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors, at its first
meeting held after each Annual Meeting of Stockholders (or action by
written consent of stockholders in lieu of the Annual Meeting of
Stockholders), shall elect the officers of the Corporation who shall serve
for one year and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their successors are
chosen and qualified, or until their earlier death, resignation or removal.
Any officer elected by the Board of Directors may be removed at any time by
the affirmative vote of the Board of Directors. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of Directors.
The salaries of all officers of the Corporation shall be fixed by the Board
of Directors.
Section 3. Voting Securities Owned by the Corporation. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the President or any
Vice President or any other officer authorized to do so by the Board of
Directors and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer like powers
upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of
the Board of Directors, if there be one, shall preside at all meetings of
the stockholders and of the Board of Directors. The Chairman of the Board
of Directors shall be the Chief Executive Officer of the Corporation,
unless the Board of Directors designates the President as the Chief
Executive Officer, and, except where by law the signature of the President
is required, the Chairman of the Board of Directors shall possess the same
power as the President to sign all contracts, certificates and other
instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman
of the Board of Directors shall exercise all the powers and discharge all
the duties of the President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such other powers as may
from time to time be assigned by these By-Laws or by the Board of
Directors. Section 5. President. The President shall, subject to the
control of the Board of Directors and, if there be one, the Chairman of the
Board of Directors, have general supervision of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The President shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or the President. In
the absence or disability of the Chairman of the Board of Directors, or if
there be none, the President shall preside at all meetings of the
stockholders and the Board of Directors. If there be no Chairman of the
Board of Directors, or if the Board of Directors shall otherwise designate,
the President shall be the Chief Executive Officer of the Corporation. The
President shall also perform such other duties and may exercise such other
powers as may from time to time be assigned to such officer by these
By-Laws or by the Board of Directors.
The president may be designated by the board of directors as
the chief operating officer of the corporation. In the absence of the
chairman of the board, or in the event of the inability of the chairman of
the board to act, the president shall have authority to exercise the power
and perform the duties of the chairman of the board. He or she shall have
such further powers and duties as may be conferred on him or her by the
board of directors.
Section 6. Vice Presidents. At the request of the President or
in the President's absence or in the event of the President's inability or
refusal to act (and if there be no Chairman of the Board of Directors), the
Vice President, or the Vice Presidents if there is more than one (in the
order designated by the Board of Directors), shall perform the duties of
the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Each Vice President
shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no Chairman of the
Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the
President or in the event of the inability or refusal of the President to
act, shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President.
Section 7. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all
the proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for committees of the Board of
Directors when required. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be
prescribed by the Board of Directors, the Chairman of the Board of
Directors or the President, under whose supervision the Secretary shall be.
If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of
the Corporation and the Secretary or any Assistant Secretary, if there be
one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary
or by the signature of any such Assistant Secretary. The Board of Directors
may give general authority to any other officer to affix the seal of the
Corporation and to attest to the affixing by such officer's signature. The
Secretary shall see that all books, reports, statements, certificates and
other documents and records required by law to be kept or filed are
properly kept or filed, as the case may be.
Section 8. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the
funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board
of Directors, the Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of the
Treasurer and for the restoration to the Corporation, in case of the
Treasurer's death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in the
Treasurer's possession or under the Treasurer's control belonging to the
Corporation.
Section 9. Assistant Secretaries. Assistant Secretaries, if
there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President,
any Vice President, if there be one, or the Secretary, and in the absence
of the Secretary or in the event of the Secretary's disability or refusal
to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon
the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President,
any Vice President, if there be one, or the Treasurer, and in the absence
of the Treasurer or in the event of the Treasurer's disability or refusal
to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Board of Directors, an Assistant
Treasurer shall give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of Assistant Treasurer
and for the restoration to the Corporation, in case of the Assistant
Treasurer's death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in the
Assistant Treasurer's possession or under the Assistant Treasurer's control
belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board
of Directors may delegate to any other officer of the Corporation the power
to choose such other officers and to prescribe their respective duties and
powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation (i) by the Chairman of the Board of Directors, the President
or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by such stockholder in the Corporation. If the
corporation has authority to issue stock of more than one class, the stock
certificate shall contain on its face or back a full statement or summary
of the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms
and conditions of redemption of the stock of each class which the
corporation is authorized to issue and if the corporation is authorized to
issue any preferred or special class in series, the differences in the
relative rights and preferences between the share of each series to the
extent they have been set, and the authority of the board of directors to
set the relative rights and preferences of subsequent series. In lieu of
such full statement or summary, there may be set forth upon the face or
back of the certificate a statement that the corporation will furnish to
any stockholder upon request and without charge, a full statement of such
information. A summary of such information included in a registration
statement permitted to become effective under the federal Securities Act of
1933, as now or hereafter amended, shall be an acceptable summary for the
purposes of this section. Every stock certificate representing shares of
stock which are restricted as to transferability by the corporation shall
contain a full statement of the restriction or state that the corporation
will furnish information about the restriction to the stockholder on request
and without charge. A stock certificate may not be issued until the stock
represented by it is fully paid, except in the case of stock purchased under
an option plan as permitted by law.
Section 2. Signatures. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer,
transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct
a new certificate to be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate, or the owner's legal
representative, to advertise the same in such manner as the Board of
Directors shall require and/or to give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed or the issuance of such new certificate.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by the Certificate of Incorporation,
applicable law and these By-Laws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or by
such person's attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a
new certificate shall be issued. No transfer of stock shall be valid as
against the Corporation for any purpose until it shall have been entered in
the stock records of the Corporation by an entry showing from and to whom
transferred.
Section 5. Record Date.
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the board of directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the
day on which the meeting is held. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; providing, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be
more than ten days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no record date has
been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by
delivery to its registered office in this State, its principal place of
business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors
adopts the resolutions taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such action. If no
record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 6. Record Owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise required by law.
Section 7. Transfer Agents and Registrars. The board of
directors may in its discretion, appoint one or more banks or trust
companies in such city or cities as the board of directors may deem
advisable, from time to time, to act as transfer agents and/or registrars
the shares of stock of the corporation; and, upon such appointments being
made, no certificate representing shares shall be valid until countersigned
by one of such transfer agents and registered by one of such registrars.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at
such person's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Written
notice may also be given personally or by telegram, telex or cable.
Section 2. Waivers of Notice. Whenever any notice is required
by law, the Certificate of Incorporation or these By-Laws, to be given to
any director, member of a committee or stockholder, a waiver thereof in
writing, signed, by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent
thereto. Attendance of a person at a meeting, present in person or
represented by proxy, shall constitute a waiver of notice of such meeting,
except where the person attends the meeting for the express purpose of
objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the requirements of the DGCL and the provisions of
the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting of the Board of Directors (or
any action by written consent in lieu thereof in accordance with Section 6
of Article III hereof), and may be paid in cash, in property, or in shares
of the Corporation's capital stock. Before payment of any dividend, there
may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from time to time, in
its absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for any proper purpose, and the Board
of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 5. Restricted and Prohibited Activities. The
Corporation shall not: invest in unimproved real property (that is, acquire
an equity interest in property for purposes other than producing income,
which has no development or construction in progress thereon nor is any
development or construction planned to commence thereon within the year);
invest in mortgage loans (but not including mortgage related securities,
such as collateralized mortgage obligations, pass-through securities,
stripped mortgage-backed securities and other securities that, directly or
indirectly, represent a participation in, or are secured by and payable
from, mortgage loans on real property) without an appraisal of the
underlying property; invest in real estate contracts of sale unless the
same are in recordable form; invest in or make a mortgage loan on property
in excess of 100% of its appraised value (unless other mortgage loan
underwriting criteria would justify such investment); invest in or make a
mortgage loan subordinate to a mortgage or equity interest in the property
held by the Advisor, the Sponsor, a director or an affiliate of any of the
foregoing; issue equity securities redeemable at the option of the holder
thereof; issue options or warrants to insiders if such options or warrants
cover in excess of 9.8% of the outstanding shares of the Corporation; or
issue options or warrants to any persons with an exercise price less than
the fair market value of the shares covered at the date of issuance.
Section 6. Advisory Contract and Compensation. The Board of
Directors may delegate the duty of management of the assets and the
administration of its day-to-day operations to an Advisor pursuant to a
written contract or contracts which have obtained the approval, including
the approval of renewals thereof, of the Board of Directors, including a
majority of the Independent Directors.
The majority of the directors, including a majority of the
Independent Directors, shall review and ratify, amend or repeal the
advisory contract in effect between the corporation and its Advisor, at
least every three years. No advisory contract shall have a term in excess
of three years, and such contract shall be terminable by a majority of the
Independent Directors of the Advisor, without cause, upon sixty days
written notice. The directors shall review the performance of the Advisor
at least annually. The Independent Directors shall review the compensation
of the Advisor in connection with the renewal of the advisory contract to
determine that such compensation is reasonable in relation to the nature
and quality of the services provided.
Section 7. Checks. All checks, drafts and orders for the
payment of money, notes and other evidences of indebtedness, issued in the
name of the corporation shall be signed by the president or the treasurer
or by such officer or officers as the board of directors may from time to
time designate.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other than Those by or in the Right of the Corporation. Subject to Section
3 of this Article VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director
or officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that such person's conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings
by or in the Right of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation; except
that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in
the circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or Section 2 of this Article VIII, as the
case may be. Such determination shall be made, with respect to a person who
is a director or officer at the time of such determination, (i) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by a majority vote of such directors, even though less
than a quorum, or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion or
(iv) by the stockholders. Such determination shall be made, with respect to
former directors and officers, by any person or persons having the
authority to act on the matter on behalf of the Corporation. To the extent,
however, that a present or former director or officer of the Corporation
has been successful on the merits or otherwise in defense of any action,
suit or proceeding described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article VIII, a person shall be
deemed to have acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation,
or, with respect to any criminal action or proceeding, to have had no
reasonable cause to believe such person's conduct was unlawful, if such
person's action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to such
person by the officers of the Corporation or another enterprise in the
course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise. The term
"another enterprise" as used in this Section 4 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan
or other enterprise of which such person is or was serving at the request
of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because such person has
met the applicable standards of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification shall
also be entitled to be paid the expense of prosecuting such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Corporation as authorized in this
Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under the Certificate of Incorporation, any
By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office, it being the policy
of the Corporation that indemnification of the persons specified in
Sections 1 and 2 of this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not specified in
Section 1 or 2 of this Article VIII but whom the Corporation has the power
or obligation to indemnify under the provisions of the General Corporation
Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of
the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against such person and incurred by such person in any such capacity, or
arising out of such person's status as such, whether or not the Corporation
would have the power or the obligation to indemnify such person against
such liability under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to indemnify its directors or officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request
of such constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article VIII, references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to
"serving at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director or officer with respect
to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed
by Section 5 hereof), the Corporation shall not be obligated to indemnify
any director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those
conferred in this Article VIII to directors and officers of the
Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted by the
stockholders or by the Board of Directors, provided, however, that notice
of such alteration, amendment, repeal or adoption of new ByLaws be
contained in the notice of such meeting of stockholders or Board of
Directors as the case may be. All such amendments must be approved by
either the holders of a majority of the outstanding capital stock entitled
to vote thereon or by a majority of the entire Board of Directors then in
office.
Section 2. Entire Board of Directors. As used in this Article
IX and in these By-Laws generally, the term "entire Board of Directors"
means the total number of directors which the Corporation would have if
there were no vacancies.
* * *
Adopted as of: _____________________
Last Amended as of: ________________
