<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A-2
FOR REGISTRATION OF CERTAIN CLASSES OF
SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Gables Residential Trust
------------------------
(Exact name of registrant as specified in its charter)
Maryland 58-2077868
- ---------------------------------------- ------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
2859 Paces Ferry Road, Atlanta, Georgia 30339
- --------------------------------------- -------------------
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of Class to be so registered which each class is to be registered
- ---------------------------------- ------------------------------------
Common shares of beneficial New York Stock Exchange
interest, $.01 par value
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
A description of the common shares of beneficial interest of the
Registrant is set forth in the Prospectus that constitutes part of the Form
S-11 Registration Statement, filed under the Securities Act of 1933 with the
Securities and Exchange Commission on October 19, 1993, Registration No.
33-70570 (the "Registration Statement"), as amended, which is incorporated
herein by reference for all purposes.
On October 21, 1996, the Board of Trustees of the Registrant
unanimously approved an amendment to the Registrant's Amended and Restated
Bylaws to allow special meetings of shareholders to be called by shareholders
holding at least a majority of the outstanding shares of beneficial interest of
the Registrant entitled to vote at the meeting, as now permitted by the
Maryland General Corporation Law.
Item 2. Exhibits
The securities described herein are to be registered on the New York
Stock Exchange, on which no other securities of the Registrant are registered.
Accordingly, the following exhibits, required in accordance with Part II to the
Instructions as to Exhibits on Form 8-A, have been duly filed with the New York
Stock Exchange:
(1) The Registration Statement (previously filed).
(2) Amended and Restated Declaration of Trust of
Registrant (previously filed).
(3) Second Amended and Restated Bylaws of Registrant
(filed herewith).
(4) Specimen of Registrant's Common Share certificate
(previously filed).
The following exhibit is being filed herewith pursuant to Rule 12b-30
under the Securities Exchange Act of 1934:
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Exhibit No. Exhibit
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3.1 Second Amended and Restated Bylaws of Registrant.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this amendment to this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Gables Residential Trust
By: /s/ Marvin R. Banks, Jr.
---------------------------------------
Marvin R. Banks, Jr.
Vice President, Secretary and Chief
Financial Officer
November 8, 1996
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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
BYLAWS
OF
GABLES RESIDENTIAL TRUST
October 21, 1996
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SECOND AMENDED AND RESTATED BYLAWS
OF
GABLES RESIDENTIAL TRUST
TABLE OF CONTENTS
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ARTICLE I - MEETINGS OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01. PLACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03. MATTERS TO BE CONSIDERED AT ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.04. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.05. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.06. SCOPE OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.07. QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.08. VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.09. PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.10. CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.11. TABULATION OF VOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.12. VOTING BY BALLOT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13. REPORTS TO SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.14. NOMINATIONS AND SHAREHOLDER BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.01. GENERAL POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.02. OUTSIDE ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.03. MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.04. SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.05. NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.06. QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.07. VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.08. CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.09. RESIGNATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.10. REMOVAL OF TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.11. VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.12. INFORMAL ACTION BY TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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2.13. COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.14. NUMBER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE III - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.01. NUMBER, TENURE AND QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.02. DELEGATION OF POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.03. MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.04. QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.05. CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.06. INFORMAL ACTION BY COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.01. POWERS AND DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.02. REMOVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.03. OUTSIDE ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.04. VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.05. CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.06. PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.07. VICE PRESIDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.08. SECRETARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.09. TREASURER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.11. SUBORDINATE OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.12. SALARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V - SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.01. CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.02. SHARE LEDGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.03. RECORDING TRANSFERS OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.04. LOST CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.05. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.06. FRACTIONAL SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI - DIVIDENDS AND DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.01. DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.02. CONTINGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE VII -INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.01 INDEMNIFICATION OF TRUSTEES AND OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.02. EXPENSES; INDEMNIFICATION PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.03. NONEXCLUSIVITY OF INDEMNIFICATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.04. PARTIAL INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.05. MUTUAL ACKNOWLEDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.06 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.07. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.08. EXCEPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.09. CONSTRUCTION OF CERTAIN PHRASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.10. SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.11. ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.12. INDEMNIFICATION OF SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VIII - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.01. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.02. SECRETARY TO GIVE NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.03. WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.01. BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.02. INSPECTION OF BYLAWS AND CORPORATE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.03. CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.04. CHECKS, DRAFTS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.05. LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.06. FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.07. BYLAWS SEVERABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE X - AMENDMENT OF BYLAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.01. BY TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
10.02. BY SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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ARTICLE I - MEETINGS OF SHAREHOLDERS
1.01. PLACE. All meetings of the holders of the issued and
outstanding shares of beneficial interest of the Trust (the "Shareholders")
shall be held at the principal executive office of the Trust or such other
place within the United States as shall be stated in the notice of the meeting.
1.02. ANNUAL MEETING. An annual meeting of the Shareholders for the
election of Trustees and the transaction of such other business as properly may
be brought before the meeting shall be held on the second Tuesday in May of
each year beginning in 1995 or at such other date and time as may be fixed by
the Board of Trustees. If the date fixed for the annual meeting shall be a
legal holiday, such meeting shall be held on the next succeeding business day.
If no annual meeting is held on the date designated, a special meeting in lieu
thereof may be held, and such special meeting shall have, for purposes of these
Bylaws or otherwise, all the force and effect of an annual meeting. Any and
all references hereafter in these Bylaws to an annual meeting or to annual
meetings shall be deemed to refer also to any special meeting(s) in lieu
thereof.
1.03. MATTERS TO BE CONSIDERED AT ANNUAL MEETING. Except as
provided by Title 8 of the Maryland General Corporation Law, as amended from
time to time, any business may be conducted and any proposals may be acted upon
at an annual meeting of Shareholders.
1.04. SPECIAL MEETINGS. The Chairman of the Board, the President or
a majority of the Board of Trustees may call special meetings of the
Shareholders. Special meetings of Shareholders shall also be called by the
Secretary upon the written request of the holders of shares representing at
least a majority of the votes entitled to be cast at such meeting. Such
request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat.
1.05. NOTICE. Not less than ten (10) nor more than ninety (90) days
before the date of every meeting of Shareholders, written or printed notice of
such meeting shall be given, in accordance with Article VIII, to each
Shareholder entitled to vote or entitled to notice by statute, stating the time
and place of the meeting and, in the case of a special meeting or as otherwise
may be required by statute, the purpose or purposes for which the meeting is
called.
1.06. SCOPE OF NOTICE. No business shall be transacted at a special
meeting of Shareholders except that specifically designated in the special
meeting notice. Any business of the Trust may be transacted at the annual
meeting without being specifically designated in the notice, except such
business as is required by statute to be stated in such notice.
1.07. QUORUM. At any meeting of Shareholders, the presence in
person or by proxy of Shareholders entitled to cast a majority of the votes
shall constitute a quorum; but this Section shall not affect any requirement
under any statute or the Declaration of Trust of the Trust, as amended (the
"Declaration of Trust"), for the vote necessary for the adoption of any
measure. If, however, a quorum is not present at any meeting of the
Shareholders, the
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Shareholders present in person or by proxy shall have the power to adjourn the
meeting from time to time to a date not more than 120 days after the record date
without notice other than announcement at the meeting until a quorum is present
and the meeting so adjourned may be reconvened without further notice. At any
adjourned meeting at which a quorum is present, any business may be transacted
that might have been transacted at the meeting as originally notified. The
Shareholders present at a meeting which has been duly called and convened and at
which a quorum is present at the time counted may continue to transact business
until adjournment, notwithstanding the withdrawal of enough Shareholders to
leave less than a quorum.
1.08. VOTING. A plurality of the votes cast at a meeting of
Shareholders duly called and at which a quorum is present shall be sufficient
to elect a Trustee. A majority of the votes cast at a meeting of Shareholders
duly called and at which a quorum is present shall be sufficient to take or
authorize action upon any matter which may properly come before the meeting,
unless more than a majority of the votes cast is specifically required by
statute, the Declaration of Trust or these Bylaws. Unless otherwise provided
by statute, the Declaration of Trust or these Bylaws, each outstanding share (a
"Share") of beneficial interest of the Trust, regardless of class, shall be
entitled to one vote upon each matter submitted to a vote at a meeting of
Shareholders. Shares directly or indirectly owned by the Trust shall not be
voted in any meeting and shall not be counted in determining the total number
of outstanding Shares entitled to vote at any given time, but Shares held by
the Trust in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding Shares at any given time.
1.09. PROXIES. A Shareholder may vote the Shares owned of record by
such Shareholder, either in person or by proxy executed in writing by the
Shareholder or by such Shareholder's duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Trust before or at the time of
the meeting. No proxy shall be valid after eleven (11) months from the date of
its execution, unless otherwise provided in the proxy.
1.10. CONDUCT OF MEETINGS. The Chairman of the Board or, in the
absence of the Chairman, the President, or, in the absence of the Chairman and
the President, a Vice President, or, in the absence of the Chairman, President
and Vice Presidents, a presiding Officer elected at the meeting, shall preside
over meetings of the Shareholders. The Secretary of the Trust, or, in the
absence of the Secretary and Assistant Secretaries, the person appointed by the
presiding Officer of the meeting shall act as secretary of such meeting.
1.11. TABULATION OF VOTES. At any annual or special meeting of
Shareholders, the presiding Officer shall be authorized to appoint a teller for
such meeting ("the Teller"). The Teller may, but need not, be an Officer or
employee of the Trust. The Teller shall be responsible for tabulating or
causing to be tabulated shares voted at the meeting and reviewing or causing to
be reviewed all proxies. In tabulating votes, the Teller shall be entitled to
rely in whole or in part on tabulations and analyses made by personnel of the
Trust, its counsel, its transfer agent, its registrar or such other
organizations that are customarily
2
<PAGE> 7
employed to provide such services. The Teller shall be authorized to determine
the legality and sufficiency of all votes cast and proxies delivered under the
Trust's Declaration of Trust, Bylaws and applicable law. The presiding Officer
may review all determinations made by the Teller hereunder, and in doing so the
presiding Officer shall be entitled to exercise his or her sole judgment and
discretion and he or she shall not be bound by any determinations made by the
Teller.
1.12. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding Officer shall order or any Shareholder
shall demand that voting be by ballot.
1.13. REPORTS TO SHAREHOLDERS. Not later than 90 days after the
close of each fiscal year of the Trust, the Trustees shall deliver or cause to
be delivered a report of the business and operations of the Trust during such
fiscal year to the Shareholders, containing a balance sheet and a statement of
income and surplus of the Trust, accompanied by the certification of an
independent public accountant, and such further information as the Trustees may
determine is required pursuant to any law or regulation to which the Trust is
subject. A signed copy of the annual report and the accountant's certificate
shall be filed by the Trustees with the State Department of Assessments and
Taxation of Maryland, and with such other governmental agencies as may be
required by law and as the Trustees may deem appropriate.
1.14. NOMINATIONS AND SHAREHOLDER BUSINESS.
(a) Annual Meetings of Shareholders.
(1) With respect to an annual meeting of Shareholders,
nominations for elections to the Board of Trustees and the proposal of
business to be considered by the Shareholders may be made only (i) by
or at the direction of the Board of Trustees or (ii) by any
Shareholder who was a Shareholder of record at the time of giving of
notice, who is entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 1.14.
(2) For a proposal to be properly brought before an
annual meeting by a Shareholder, other than a shareholder proposal
included in the Company's proxy statement pursuant to Rule 14a-8 of
the Securities Exchange Act of 1934, as amended, the Shareholder must
have given timely notice thereof in writing to the Secretary of the
Company, and such Shareholder or his representative must be present in
person at the annual meeting. For the first annual meeting following
the initial public offering of common shares of beneficial interest of
the Company, a Shareholder's notice shall be timely if delivered to,
or mailed and received at, the principal executive office of the
Company not later than the close of business on the 20th calendar day
(or if that day is not a business day for the Company, on the next
business day) following the date on which notice of the date of the
first annual meeting is mailed or otherwise transmitted to
Shareholders. For all subsequent annual meetings, a Shareholder's
notice shall be
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timely if delivered to, or mailed and received at, the principal
executive offices of the Company (A) not less than 75 days nor more
than 180 days prior to the anniversary date of the immediately
preceding annual meeting of Shareholders or special meeting in lieu
thereof (the "Anniversary Date") or (B) in the event that the annual
meeting of Shareholders is called for a date more than 7 calendar days
prior to the Anniversary Date, not later than the close of business on
(1) the 20th calendar day (or if that day is not a business day for
the Company, on the next succeeding business day) following the
earlier of (x) the date on which notice of the date of such meeting
was mailed to Shareholders, or (y) the date on which the date of such
meeting was publicly disclosed, or (2) if such date of notice or
public disclosure occurs more than 75 calendar days prior to the
scheduled date of such meeting, then the later of (x) the 20th
calendar day (or if that day is not a business day for the Company, on
the next succeeding business day) following the date of the first to
occur of such notice or public disclosure or (y) the 75th calendar day
prior to such scheduled date of such meeting (or if that day is not a
business day for the Company, on the next succeeding business day).
(3) A Shareholder's notice to the Secretary shall set
forth as to each matter the Shareholder proposes to bring before the
annual meeting (i) a brief description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they
appear on the Company's share transfer books, of the Shareholder
proposing such business and of the beneficial owners (if any) of the
shares registered in such Shareholder's name and the name and address
of other Shareholders known by such Shareholder to be supporting such
proposal on the date of such Shareholder's notice, (iii) the class and
number of shares of the Company's capital stock which are beneficially
owned by the Shareholder and such beneficial owners (if any) on the
date of such Shareholder's notice and by any other Shareholders known
by such Shareholder to be supporting such proposal on the date of such
Shareholder's notice, and (iv) any financial interest of the
Shareholder or of any such beneficial owner in such proposal.
(4) If the Board of Trustees, or a designated committee
thereof, determines that any Shareholder proposal was not timely made
in accordance with the terms of this Section 1.14, such proposal shall
not be presented for action at the annual meeting in question. If the
Board of Trustees, or a designated committee thereof, determines that
the information provided in a Shareholder's notice does not satisfy
the informational requirements of this section in any material
respect, the Secretary of the Company shall promptly notify such
Shareholder of the deficiency in the notice. Such Shareholder shall
have an opportunity to cure the deficiency by providing additional
information to the Secretary within the period of time, not to exceed
five (5) days from the date such deficiency notice is given to the
Shareholder, determined by the Board of Trustees or such committee.
If the deficiency is not cured within such period, or if the Board of
Trustees or such committee determines that the additional information
provided by the Shareholder, together with the information previously
provided, does not satisfy the
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requirements of this Section 1.14 in any material respect, then such
proposal shall not be presented for action at the annual meeting in
question.
(5) Notwithstanding the procedure set forth in the
preceding paragraph, if neither the Board of Trustees nor such
committee makes a determination as to the validity of any Shareholder
proposal as set forth above, the presiding Officer of the annual
meeting shall determine and declare at the annual meeting whether the
Shareholder proposal was made in accordance with the terms of this
Section 1.14. If the presiding Officer determines that a Shareholder
proposal was made in accordance with the terms of this Section 1.14,
the presiding Officer shall so declare at the annual meeting. If the
presiding Officer determines that a Shareholder proposal was not made
in accordance with the provisions of this Section 1.14, the presiding
Officer shall so declare at the annual meeting and such proposal shall
not be acted upon at the annual meeting.
(6) This provision shall not prevent the consideration
and approval or disapproval at the annual meeting of reports of
Officers, Trustees and committees of the Board of Trustees, but in
connection with such reports, no new business shall be acted upon at
such annual meeting except in accordance with the provisions of this
Section 1.14.
(b) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of Shareholders as shall have been brought
before the meeting pursuant to the Trust's notice of such meeting. Nominations
of persons for election to the Board of Trustees may be made at a special
meeting of Shareholders at which Trustees are to be elected pursuant to the
Trust's notice of meeting (i) by or at the direction of the Board of Trustees
or (ii) provided that the Board of Trustees has determined that Trustees shall
be elected at such special meeting, by any Shareholder who is a Shareholder of
record at the time of giving of notice provided for in this Section 1.14(b),
who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 1.14(b). In the event the Trust calls a
special meeting of Shareholders for the purpose of electing one or more
Trustees to the Board of Trustees, any such Shareholder may nominate a person
or persons (as the case may be) for election to such position as specified in
the Trust's notice of meeting if the Shareholder's notice complies with the
requirements of Section 1.14(a) and is delivered to the Secretary at the
principal executive offices of the Trust not earlier than the 90th day prior to
such special meeting and later than the close of business on the 60th day prior
to such special meeting or the tenth day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Trust to be elected at such meeting.
(c) General.
(1) The presiding officer of the meeting shall have the
power and duty to determine whether a nomination or any business
proposed to be brought before the
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meeting was made in accordance with the procedures set forth in this
Section 1.14 and, if any proposed nomination or business was not made
in compliance with this Section 1.14, to declare that such defective
nomination or proposal be disregarded.
(2) Notwithstanding the foregoing provisions of this
Section 1.14, a Shareholder also shall comply with all applicable
requirements of state law and of the Exchange Act and rules and
regulations thereunder with respect to the matters set forth in this
Section 1.14. Nothing in this Section 1.14 shall be deemed to affect
any rights of Shareholders to request inclusion of proposals in the
Trust's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II - TRUSTEES
2.01. GENERAL POWERS. The business and affairs of the Trust shall
be managed by its Board of Trustees.
2.02. OUTSIDE ACTIVITIES. The Board of Trustees, each Trustee, and
the agents, Officers and employees of the Trust or of the Board of Trustees or
of any Trustee may engage with or for others in business activities of the
types conducted by the Trust; none of them has an obligation to notify or
present to the Trust or each other any investment opportunity that may come to
such person's attention even though such investment might be within the scope
of the Trust's purposes or various investment objectives. Any interest
(including any interest as defined in Section 2-419(a) of the Maryland General
Corporation Law) that a Trustee has in any investment opportunity presented to
the Trust must be disclosed by such Trustee to the Board of Trustees (and, if
voting thereon, to the Shareholders or to any committee of the Board of
Trustees) within ten (10) days after the later of the date upon which such
Trustee becomes aware of such interest or that the Trust is considering such
investment opportunity. If such interest comes to the interested Trustee's
attention after a vote to take such investment opportunity, the voting body
shall reconsider such investment opportunity if not already consummated or
implemented.
2.03. MEETINGS. The Board of Trustees may provide, by resolution,
the time, date and place, either within or without the State of Maryland, for
the holding of regular meetings of the Board of Trustees without other notice
than such resolutions.
2.04. SPECIAL MEETINGS. Special meetings of the Board of Trustees
may be called by or at the request of the Chairman of the Board, the President
or a majority of the Trustees then in office. The person or persons authorized
to call special meetings of the Board of Trustees may fix any place, either
within or without the State of Maryland, as the place for holding any special
meeting of the Board of Trustees called by them.
2.05. NOTICE. Notice of any special meeting to be provided herein
shall be given, in accordance with Article VIII, by written notice delivered
personally, telegraphed or
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telecopied to each Trustee at his or her business or residence at least
twenty-four (24) hours or by mail at least five (5) days prior to the meeting.
Neither the business to be transacted at, nor the purpose of, any annual,
regular or special meeting of the Board of Trustees need be specified in the
notice, unless specifically required by statute, the Declaration of Trust or
these Bylaws.
2.06. QUORUM. A majority of the Board of Trustees then in office
shall constitute a quorum for transaction of business at any meeting of the
Board of Trustees, provided that, if less than a majority of such number of
Trustees are present at said meeting, a majority of the Trustees present may
adjourn the meeting from time to time without further notice. The Trustees
present at a meeting which has been duly called and convened and at which a
quorum is present at the time counted may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Trustees to leave less
than a quorum.
2.07. VOTING. The action of the majority of the Trustees present at
a meeting at which a quorum is present shall be the act of the Board of
Trustees, unless the concurrence of a greater proportion is required for such
action by applicable statute, the Declaration of Trust or these Bylaws.
2.08. CONDUCT OF MEETINGS. All meetings of the Board of Trustees
shall be called to order and presided over by the Chairman of the Board, or in
the absence of the Chairman of the Board, by the President (if a member of the
Board of Trustees) or, in the absence of the Chairman of the Board and the
President, by a member of the Board of Trustees selected by the members
present. The Secretary of the Trust shall act as secretary at all meetings of
the Board of Trustees, and in the absence of the Secretary and Assistant
Secretaries, the presiding Officer of the meeting shall designate any person to
act as secretary of the meeting. Members of the Board of Trustees may
participate in meetings of the Board of Trustees by conference telephone or
similar communications equipment by means of which all Trustees participating
in the meeting can hear each other at the same time, and participation in a
meeting in accordance herewith shall constitute presence in person at such
meeting for all purposes of these Bylaws.
2.09. RESIGNATIONS. Any Trustee may resign from the Board of
Trustees or any committee thereof at any time. Such resignation shall be made
in writing and shall take effect at the time specified therein, or if no time
be specified, at the time of the receipt of notice of such resignation by the
President or the Secretary.
2.10. REMOVAL OF TRUSTEES. Consistent with the Declaration of
Trust, the Shareholders may, at any time, remove any Trustee, with or without
cause, by the affirmative vote of two-thirds of all the votes entitled to be
cast on the matter, and may elect a successor to fill any resulting vacancy for
the balance of the term of the removed Trustee.
2.11. VACANCIES. The Shareholders may elect a successor to fill a
vacancy on the Board of Trustees which results from the removal of a Trustee.
Furthermore, any vacancy
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occurring in the Board of Trustees for any cause other than by reason of an
increase in the number of Trustees may be filled by a majority vote of the
remaining Trustees, although such majority is less than a quorum. Any vacancy
occurring in the Board of Trustees by reason of an increase in the number of
Trustees may be filled by a majority vote of the entire Board of Trustees. A
Trustee elected by the Board of Trustees to fill a vacancy shall hold office
until the next annual meeting of Shareholders. A Trustee elected by the
Shareholders to fill a vacancy shall hold office for the unexpired term of the
Trustee he or she is replacing.
2.12. INFORMAL ACTION BY TRUSTEES. Any action required or permitted
to be taken at any meeting of the Board of Trustees may be taken without a
meeting, if a consent in writing to such action is signed by all of the
Trustees and such written consent is filed with the minutes of the Board of
Trustees. Consents may be signed by different Trustees on separate
counterparts.
2.13. COMPENSATION. An annual fee for services and payment for
expenses of attendance at each meeting of the Board of Trustees, or of any
committee thereof, may be allowed to any Trustee by resolution of the Board of
Trustees.
2.14. NUMBER. The number of Trustees initially shall be three,
which number (i) shall automatically be increased to seven effective as of the
date immediately following the date of the closing of the Corporation's initial
public offering and (ii) may thereafter be increased or decreased from time to
time by the unanimous vote of the Trustees then in office or by a majority vote
of the holders of Shares entitled to vote; provided, however, that the total
number of Trustees shall not be fewer than three and not more than 15. No
reduction in the number of Trustees shall cause the removal of any Trustee from
office prior to the expiration of his or her term.
ARTICLE III - COMMITTEES
3.01. NUMBER, TENURE AND QUALIFICATION. The Board of Trustees may
appoint from among its members an Executive Committee and other committees,
composed of two or more Trustees, to serve at the pleasure of the Board of
Trustees.
3.02. DELEGATION OF POWER. The Board of Trustees may delegate to
these committees in the intervals between meetings of the Board of Trustees any
of the powers of the Board of Trustees to manage the business and affairs of
the Trust, except those powers which the Board of Trustees is specifically
prohibited from delegating pursuant to Section 2- 411 of the Maryland General
Corporation Law.
3.03. MEETINGS. In the absence of any member of any such committee,
the members thereof present at such meeting, whether or not they constitute a
quorum, may appoint a member of the Board of Trustees to act in the place of
such absent members.
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3.04. QUORUM. One-third, but not fewer than two (2), 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.
3.05. CONDUCT OF MEETINGS. Each committee shall designate a
presiding Officer of such committee, and if not present at a particular
meeting, the committee shall select a presiding Officer for such meeting.
Members of any committee may participate in meetings of such committee by
conference telephone or similar communications equipment by means of which all
Trustees participating in the meeting can hear each other at the same time, and
participation in a meeting in accordance herewith shall constitute presence in
person at such meeting for all purposes of these Bylaws. Each committee shall
keep minutes of its meetings, and report the results of any proceedings at the
next succeeding annual or regular meeting of the Board of Trustees.
3.06. INFORMAL ACTION BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Board of Trustees
may be taken without a meeting, if a written consent to such action is signed
by all members of the committee and such written consent is filed with the
minutes of proceedings of such committee. Consents may be signed by different
members on separate counterparts.
ARTICLE IV - OFFICERS
4.01. POWERS AND DUTIES. The Officers of the Trust shall be elected
annually by the Board of Trustees at the first meeting of the Board of Trustees
held after each annual meeting of Shareholders. If the election of Officers
shall not be held at such meeting, such election shall be held as soon
thereafter as may be convenient. Each Officer shall hold office until such
Officer's successor is duly elected and qualified or until such Officer's
death, resignation or removal in the manner hereinafter provided. Any two or
more offices except President and Vice President may be held by the same
person. Election or appointment of an Officer or agent shall not of itself
create contract rights between the Trust and such Officer or agent.
4.02. REMOVAL. Any Officer or agent elected or appointed by the
Board of Trustees may be removed by the Board of Trustees whenever in its
judgment the best interests of the Trust would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
person so removed. The fact that a person is elected to an office, whether or
not for a specified term, shall not by itself constitute any undertaking or
evidence of any employment obligation of the Trust to that person.
4.03. OUTSIDE ACTIVITIES. The Officers and agents of the Trust are
required to spend only such time managing the business and affairs of the Trust
as is necessary to carry out their duties in accordance with the law and these
Bylaws. The Officers and agents of the
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Trust may engage with or for others in business activities of the types
conducted by the Trust; none of them has an obligation to notify or present to
the Trust or each other any investment opportunity that may come to such
person's attention even though such investment might be within the scope of the
Trust's purposes or various investment objectives. Any interest (including any
interest as defined in Section 2-419(a) of the Maryland General Corporation Law
as if the Officer or agent were a Trustee of the Trust) that an Officer or an
agent has in any investment opportunity presented to the Trust must be
disclosed by such Officer or agent to the Board of Trustees (and, if voting
thereon, to the Shareholders or to any committee of the Board of Trustees)
within ten (10) days after the later of the date upon which such Officer or
agent becomes aware of such interest or the date upon which such Officer or
agent becomes aware that the Trust is considering such investment opportunity.
If such interest comes to the attention of the interested Officer or agent
after a vote to take such investment opportunity, the voting body shall
reconsider such investment opportunity if not already consummated or
implemented.
4.04. VACANCIES. A vacancy in any office may be filled by the Board
of Trustees for the unexpired portion of the term.
4.05. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Shareholders and of the Board of Trustees. The
Chairman of the Board may sign and execute all authorized bonds, contracts or
other obligations in the name of the Trust.
4.06. PRESIDENT. Unless the Board of Trustees shall otherwise
determine, the President shall be the Chief Executive Officer and general
manager of the Trust and shall in general supervise and control all of the
business and affairs of the Trust. In the absence of the Chairman of the
Board, the President shall preside at all meetings of the Shareholders and of
the Board of Trustees (if a member of the Board of Trustees). The President
may sign any deed, mortgage, bond, contract or other instruments on behalf of
the Trust except in cases where the execution thereof shall be expressly
delegated by the Board of Trustees or by these Bylaws to some other Officer or
agent of the Trust or shall be required by law to be otherwise signed or
executed. In general, the President shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Trustees from time to time.
4.07. VICE PRESIDENTS. The Board of Trustees may appoint one or
more Vice Presidents. In the absence of the President or in the event of a
vacancy in such office, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated at the time of
their election, or in the absence of any designation, then in the order of
their election) shall 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. Every Vice President shall perform such other duties as from time
to time may be assigned to him or her by the President or the Board of
Trustees.
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4.08. SECRETARY. The Secretary shall (i) keep the minutes of the
proceedings of the Shareholders and Board of Trustees in one or more books
provided for that purpose; (ii) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (iii) be
custodian of the corporate records of the Trust; (iv) unless a transfer agent
is appointed, keep a register of the post office address of each Shareholder
that shall be furnished to the Secretary by such Shareholder and have general
charge of the Share Ledger of the Trust; (v) when authorized by the Board of
Trustees or the President, attest to or witness all documents requiring the
same; (vi) perform all duties as from time to time may be assigned to him or
her by the President or by the Board of Trustees; and (vii) perform all the
duties generally incident to the office of secretary of a corporation.
4.09. 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 Trust and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Trust in such depositaries as may be designated by the Board of Trustees. The
Treasurer shall disburse the funds of the Trust as may be ordered by the Board
of Trustees, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Trustees, at the regular meetings of the Board
of Trustees or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the Trust. The
Board of Trustees may engage a Custodian to perform some or all of the duties
of the Treasurer, and if a Custodian is so engaged then the Treasurer shall be
relieved of the responsibilities set forth herein to the extent delegated to
such Custodian and, unless the Board of Trustees otherwise determines, shall
have general supervision over the activities of such Custodian.
4.10. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Board of
Trustees may appoint one or more Assistant Secretaries or Assistant Treasurers.
The Assistant Secretaries and Assistant Treasurers (i) shall have the power to
perform and shall perform all the duties of the Secretary and the Treasurer,
respectively, in such respective Officer's absence and (ii) shall perform such
duties as shall be assigned to him or her by the Secretary or Treasurer,
respectively, or by the President or the Board of Trustees.
4.11. SUBORDINATE OFFICERS. The Company shall have such subordinate
Officers as the Board of Trustees may from time to time elect. Each such
Officer shall hold office for such period and perform such duties as the Board
of Trustees, the President or any designated committee or Officer may
prescribe.
4.12. SALARIES. The salaries, if any, of the Officers shall be
fixed from time to time by the Board of Trustees. No Officer shall be
prevented from receiving such salary, if any, by reason of the fact that such
Officer is also a Trustee of the Trust.
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ARTICLE V - SHARES
5.01. CERTIFICATES. Each Shareholder shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of beneficial interest held by such Shareholder in the
Trust. Each certificate shall be signed by the President or by a Vice
President and countersigned by the Secretary or by an Assistant Secretary and
may be sealed with the seal, if any, of the Trust. Any signature or
countersignature may be either manual or facsimile signature. In case any
Officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such Officer before such certificate is
issued, it may be issued by the Trust with the same effect as if he were such
officer at the date of issue. All certificates for each class of Shares shall
be consecutively numbered. Each certificate representing shares which are
restricted as to their transferability or voting powers, which are preferred or
limited as to their dividends or as to their allocable portion of the assets
upon liquidation or which are redeemable at the option of the Trust, shall have
a statement of such restriction, limitation, preference or redemption
provision, or a summary thereof, plainly stated on the certificate. In lieu of
such statement or summary, the Trust may set forth on the face or back of the
certificate a statement that the Trust will furnish to any Shareholder, upon
request and without charge, a full statement of such information.
5.02. SHARE LEDGER. The Company shall maintain at its principal
executive office, at the office of its counsel, accountants or transfer agent
or at such other place designated by the Board of Trustees an original or
duplicate Share Ledger containing the names and addresses of all the
Shareholders and the number of shares of each class held by each Shareholder.
The Company shall be entitled to treat the holder of record of any Shares as
the holder in fact thereof and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such share on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Maryland. Until a
transfer is duly effected on the Share Ledger, the Trust shall not be affected
by any notice of such transfer, either actual or constructive. Nothing herein
shall impose upon the Trust, the Board of Trustees or Officers or their agents
and representatives a duty or limit their rights to inquire as to the actual
ownership of Shares.
5.03. RECORDING TRANSFERS OF SHARES. If transferred in accordance
with any restrictions on transfer contained in the Declaration of Trust, these
Bylaws or otherwise, Shares shall be recorded as transferred in the Share
Ledger upon provision to the Trust or the transfer agent of the Trust of an
executed stock power (duly guaranteed if requested by the Trust) and any other
documents reasonably requested by the Trust, and the surrender of the
certificate or certificates representing such Shares. Upon receipt of such
documents, the Trust shall issue as needed a new certificate or certificates to
the persons entitled thereto, cancel any old certificates and record the
transaction upon its books.
5.04. LOST CERTIFICATE. The Board of Trustees may direct a new
certificate to be issued in the place of any certificate theretofore issued by
the Trust alleged to have been
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stolen, lost or destroyed upon the making of an affidavit of that fact by the
person claiming the share certificate to be stolen, lost or destroyed. When
authorizing such issue of a new certificate, the Board of Trustees may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such stolen, lost or destroyed certificate or his legal representative
to advertise the same in such manner as it shall require and/or to give bond,
with sufficient surety, to the Trust to indemnify it against any loss or claim
which may arise by reason of the issuance of a new certificate.
5.05. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
5.5.1. The Board of Trustees may fix, in advance, a date as
the record date for the purpose of determining Shareholders entitled to notice
of, or to vote at, any meeting of Shareholders, or Shareholders entitled to
receive payment of any dividend or the allotment of any rights, or in order to
make a determination of Shareholders for any other proper purpose. Such date,
in any case, shall be not more than ninety (90) days and, in case of a meeting
of Shareholders not less than ten (10) days, prior to the date on which the
meeting or particular action requiring such determination of Shareholders is to
be held or taken.
5.5.2. In lieu of fixing a record date, the Trustees may
provide that the share transfer books shall be closed for a stated period but
not longer than 20 days. If the share transfer books are closed for the
purpose of determining Shareholders entitled to notice of or to vote at a
meeting of Shareholders, such books shall be closed for at least ten (10) days
immediately preceding such meeting.
5.5.3. Unless otherwise required under applicable laws or
regulations, if no record date is fixed and the share transfer books are not
closed for the determination of Shareholders, (a) the record date for the
determination of Shareholders entitled to notice of, or to vote at, a meeting
of Shareholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever is
the closer date to the meeting; and (b) the record date for the determination
of Shareholders entitled to receive payment of a dividend or an allotment of
and rights shall be at the close of business on the day on which the resolution
of the Board of Trustees, declaring the dividend or allotment of rights, is
adopted.
5.5.4. When a determination of Shareholders entitled to vote
at any meeting of Shareholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the share transfer books and
the stated period of closing has expired.
5.06. FRACTIONAL SHARES. The Trust may issue fractional shares or
provide for the issuance of scrip, all on such terms and under such conditions
as they may determine.
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ARTICLE VI - DIVIDENDS AND DISTRIBUTIONS
6.01. DECLARATION. Dividends and other distributions upon the
Shares may be declared by the Board of Trustees as set forth in the applicable
provisions of the Declaration of Trust and any applicable law. Dividends and
other distributions upon the Shares may be paid in cash, property or Shares of
the Trust, subject to the provisions of law and of the Declaration of Trust.
6.02. CONTINGENCIES. Before payment of any dividends or other
distributions upon the Shares, there may be set aside (but there is no duty to
set aside) out of any funds of the Trust available for dividends or other
distributions such sum or sums as the Board of Trustees may from time to time,
in its absolute discretion, think proper as a reserve fund to meet
contingencies, for repairing or maintaining any property of the Trust or for
such other purpose as the Board of Trustees shall determine to be in the best
interests of the Trust, and the Board of Trustees may modify or abolish any
such reserve in the manner in which it was created.
ARTICLE VII -INDEMNIFICATION
7.01 INDEMNIFICATION OF TRUSTEES AND OFFICERS. Unless the Board of
Trustees otherwise determines prospectively in the case of any one or more
specified individuals, the Company shall indemnify any person who is or was a
Trustee or Officer of the Company, or is or was serving at the request of the
Company as a director or officer of another Corporation, partnership, joint
venture, trust, or other enterprise (each an "Indemnitee") on the terms and
conditions set forth below; provided, however, that no indemnification shall
be provided for expenses relating to any willful or grossly negligent failure
to make disclosures required by the next to last sentence of Sections 2.02 or
4.03 hereof as applied to Trustees and Officers, respectively.
(a) Third Party Proceedings. The Company shall indemnify
the Indemnitee to the full extent permitted now or hereafter by the
Maryland General Corporation Law, as from time to time amended,
subject to the exceptions provided in this Article VII. Without
limiting the foregoing but subject to the provisions of these Bylaws,
the Company shall indemnify Indemnitee if Indemnitee is or was a party
or is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of Indemnitee's past, present or
future service as a Trustee or Officer of the Company, or, at the
Company's request, of another enterprise or entity in which the
Company had, directly or indirectly, an interest at the time of such
service, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably
withheld) actually and reasonably incurred by Indemnitee in connection
with investigating, preparing for, defending or settling such
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action or proceeding. The Company hereby agrees to indemnify
Indemnitee's spouse (whether by statute or at common law and without
regard to the location of the governing jurisdiction) and children as
express third- party beneficiaries hereunder to the same extent and
subject to the same limitations applicable to Indemnitee hereunder for
claims arising out of the status of such person as a spouse or child
of Indemnitee, including claims seeking damages from marital property
(including community property) or property held by the Indemnitee and
such spouse or property transferred to such spouse or child.
(b) Proceedings By or in the Right of the Company.
Subject to the provisions of these Bylaws, the Company shall indemnify
Indemnitee if Indemnitee was or is a party or is threatened to be made
a party to any threatened, pending or completed action or proceeding
by or in the right of the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of Indemnitee's past,
present or future service as a Trustee or Officer of the Company, or,
at the Company's request, as the director or officer of another
enterprise or entity in which the Company had, directly or indirectly,
an interest at the time of such service, against expenses (including
attorneys' fees) and, to the fullest extent permitted by law, amounts
paid in settlement, in each case to the extent actually and reasonably
incurred by Indemnitee in connection with the defense or settlement of
such action or proceeding.
7.02. EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Company shall advance
all expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal
action or proceeding referenced in Section 7.01(a) or (b) hereof (but
not amounts actually paid in settlement of any such action or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby. The advances to be made hereunder shall
be paid by the Company to Indemnitee within twenty (20) days following
delivery of a written request therefor by Indemnitee to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall,
as a condition precedent to his or her right to be indemnified under
these Bylaws, give the Company notice in writing as soon as
practicable of any claim made against Indemnitee for which
indemnification will or could be sought under these Bylaws. Such
notice shall contain the written affirmation of the Indemnitee that
the standard of conduct necessary for indemnification hereunder has
been satisfied. Notice to the Company shall be directed to the Chief
Executive Officer of the Company in the manner set forth below.
Indemnitee shall give the Company such information and cooperation as
it may reasonably require and as shall be within Indemnitee's power.
A delay in giving notice under this Section 7.02(b) shall not
invalidate the Indemnitee's right to indemnity under these Bylaws
unless such delay prejudices the defense of the claim or the
availability to
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the Company of insurance coverage for such claim. All notices,
requests, demands and other communications under these Bylaws shall be
in writing and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressed, on the date of such receipt or
(ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked.
(c) Procedure. Any indemnification provided for in
Section 7.01 shall be made no later than forty- five (45) days after
receipt of the written request of Indemnitee. If a claim under any
statute, or under any provision of the Company's Declaration of Trust
or these Bylaws providing for indemnification, is not paid in full by
the Company within forty-five (45) days after a written request for
payment thereof that complies with the requirements of these Bylaws
has first been received by the Company, Indemnitee may, but need not,
at any time thereafter bring an action against the Company to recover
the unpaid amount of the claim and, subject to Section 7.11 of these
Bylaws, Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action or
proceeding in advance of its final disposition) that Indemnitee has
not met the standards of conduct that made it permissible under
applicable law for the Company to indemnify Indemnitee for the amount
claimed, but Indemnitee shall be entitled to receive interim payments
of expenses pursuant to Subsection 7.02(a) unless and until such
defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties' intention
that if the Company contests Indemnitee's right to indemnification,
the question of Indemnitee's right to indemnification shall be for the
court to decide, and neither the failure of the Company (including its
Board of Trustees, any committee or subgroup of the Board of Trustees,
independent legal counsel, or its shareholders) to have made a
determination that indemnification of Indemnitee is proper in the
circumstances because Indemnitee has met the applicable standard of
conduct required by applicable law, nor an actual determination by the
Company (including its Board of Trustees, any committee or subgroup of
the Board of Trustees, independent legal counsel, or its shareholders)
that Indemnitee has not met such applicable standard of conduct, shall
create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
(d) Notice to Insurers. If, at the time of the receipt
of a notice of a claim pursuant to Section 7.02(a) hereof, the Company
has trustee and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall
be obligated under Section 7.01 hereof to pay the expenses of any
proceeding against Indemnitee, the
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Company, unless the Indemnitee determines that a conflict of interest
exists between the Indemnitee and the Company with respect to a
particular claim, shall be entitled to assume the defense of such
proceeding, with counsel approved by Indemnitee, which approval shall
not be unreasonably withheld, upon the delivery to Indemnitee of
written notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of
such counsel by the Company, the Company will not be liable to
Indemnitee under these Bylaws for any fees of counsel subsequently
incurred by Indemnitee with respect to the same proceeding, provided
that (i) Indemnitee shall have the right to employ his own separate
counsel in any such proceeding in addition to or in place of any
counsel retained by the Company on behalf of Indemnitee at
Indemnitee's expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Company, (B)
Indemnitee shall have concluded that there may be a conflict of
interest between the Company and Indemnitee in the conduct of any such
defense or (C) the Company shall not, in fact, have employed counsel
to assume the defense of such proceeding, then the reasonable fees and
expenses of Indemnitee's counsel shall be at the expense of the
Company.
7.03. NONEXCLUSIVITY OF INDEMNIFICATION RIGHTS. The indemnification
provided by these Bylaws shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Company's Declaration of Trust, any
agreement, any vote of Shareholders or disinterested trustees, the Maryland
General Corporation Law, or otherwise, both as to action in Indemnitee's
official capacity and as to action in another capacity while holding such
office. The provisions of this Article VII shall constitute a contract with
each Indemnitee who serves at any time while these provisions are in effect and
may be modified adversely only as provided in Article X hereof, and each
Indemnitee shall be deemed to be serving as such in reliance on these
provisions.
7.04. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of these Bylaws to indemnification by the Company for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any
civil or criminal action or proceeding, but not, however, for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is entitled.
7.05. MUTUAL ACKNOWLEDGMENT. By accepting any potential benefits
under this Article VII, each Indemnitee acknowledges that in certain instances,
Federal law or applicable public policy may prohibit the Company from
indemnifying its trustees and officers under these Bylaws or otherwise.
Indemnitee understands and acknowledges that the Company has undertaken and may
be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Company's right under public policy to
indemnify Indemnitee.
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7.06. INSURANCE. The Company shall have the power to purchase and
maintain insurance on behalf of any Indemnified Person against any liability,
whether or not the Company would have the power to indemnify him or her against
such liability.
7.07. SEVERABILITY. Nothing in this Article VII is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law. The Company's inability, pursuant to court
order, to perform its obligations under this Article VII shall not constitute a
breach thereof. The provisions of this Article VII shall be severable as
provided in this Section 7.07. If this Article VII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify Indemnitee to the full extent permitted by
any applicable portion of this Article VII that shall not have been
invalidated, and the balance of this Article VII not so invalidated shall be
enforceable in accordance with its terms.
7.08. EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Article VII to indemnify the Indemnitee in the following circumstances:
(a) Excluded Acts. The Company shall not be obligated to
indemnify Indemnitee for any acts or omissions or transactions from
which a director may not be relieved of liability under the Maryland
General Corporation Law; or
(b) Claims Initiated by Indemnitee. The Company shall
not be obligated to indemnify or advance expenses to Indemnitee with
respect to proceedings or claims initiated or brought voluntarily by
Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification
under this Article VII or any other statute or law or otherwise as
provided by Maryland General Corporation Law Section 2-418 in
accordance with Section 7.01(b) hereof, but such indemnification or
advancement of expenses may be provided by the Company in specific
cases if the Board of Trustees has approved the initiation or bringing
of such suit; or
(c) Insured Claims. The Company shall not be obligated
to indemnify Indemnitee for expenses or liabilities of any type
whatsoever (including, but not limited to, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) to the
extent that Indemnitee has otherwise actually received payment, or
payments have been made on behalf of Indemnitee, with respect to such
expense or liability (under any insurance policy, provision of the
Company's Declaration of Trust or Bylaws, or otherwise) of amounts
otherwise indemnifiable hereunder; or
(d) Claims Under Section 16(b). The Company shall not be
obligated to indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities
in violation of Section 16(b) of the Securities Exchange Act of 1934,
as amended, or any similar successor statute.
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7.09. CONSTRUCTION OF CERTAIN PHRASES
(a) For purposes of this Article VII, references to the
"Company" shall include 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 trustees, officers, employees or
agents, so that if Indemnitee is or was a director, officer, employee
or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, Indemnitee shall stand in the same position
under the provisions of this Article VII with respect to the resulting
or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For purposes of this Article VII, references to
"another enterprise" or "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and
references to "serving at the request of the Company" shall include
any service as a trustee, officer, employee or agent of the Company
which imposes duties on, or involves services by, such trustee,
officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries.
7.10. SUCCESSORS AND ASSIGNS. This Article VII shall inure to the
benefit of Indemnitee and Indemnitee's estate, heirs, legal representatives and
assigns.
7.11. ATTORNEYS' FEES. In the event that any action is instituted
by Indemnitee under this Article VII to enforce or interpret any of the terms
hereof, Indemnitee shall be entitled to be paid all court costs and expenses,
including reasonable attorneys' fees, incurred by Indemnitee with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In
the event of an action instituted by or in the name of the Company under this
Article VII or to enforce or interpret any of the terms of this Article VII,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and cross-claims made in such
action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action were made in bad faith or were
frivolous.
7.12. INDEMNIFICATION OF SHAREHOLDERS.
(a) Indemnification. Subject to the provisions of this
Section 7.12, the Company shall indemnify each Shareholder or former
Shareholder (a "Shareholder Indemnitee") (a) who has been successful,
on the merits or otherwise, in the defense of a proceeding to which
such Shareholder Indemnitee was made a party by reason of
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such status, against reasonable expenses incurred by such Shareholder
Indemnitee in connection with such proceeding and (b) against any
claim or liability to which such Shareholder Indemnitee may become
subject by reason of such status. In addition, the Company shall pay
or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by a Shareholder Indemnitee made a party
to a proceeding by reason of such status. The Company may provide to
a Shareholder Indemnitee such other and further indemnification or
payment or reimbursement of expenses as may be permitted by the
Maryland General Corporation Law.
(b) Notice. Any Shareholder Indemnitee shall, as a
condition precedent to such Shareholder Indemnitee's right to be
indemnified under these Bylaws, give the Company notice in writing as
soon as practicable of any claim made against Shareholder Indemnitee
for which indemnification will or could be sought under these Bylaws.
Notice to the Company shall be directed to the Chief Executive Officer
of the Company in the manner set forth below. Shareholder Indemnitee
shall give the Company such information and cooperation as it may
reasonably require and as shall be within Shareholder Indemnitee's
power. All notices, requests, demands and other communications under
these Bylaws shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressed, on the
date of such receipt or (ii) if mailed by domestic certified or
registered mail with postage prepaid, on the third business day after
the date postmarked.
(c) Exceptions. Any other provision herein to the
contrary notwithstanding, the Company shall not be obligated pursuant
to the terms of this Section 7.12 to indemnify a Shareholder
Indemnitee in the following circumstances:
(i) Claims Initiated by Shareholder Indemnitee.
The Company shall not be obligated to indemnify or advance
expenses to Shareholder Indemnitee with respect to proceedings
or claims initiated or brought voluntarily by Shareholder
Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to
indemnification under this Section 7.12 or any other statute
or law or otherwise as provided by Maryland General
Corporation Law Section 2-418; or
(ii) Insured Claims. The Company shall not be
obligated to indemnify Shareholder Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited
to, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) to the extent that Shareholder
Indemnitee has otherwise actually received payment, or
payments have been made on behalf of Shareholder Indemnitee,
with respect to such expense or liability (under any insurance
policy, provision of the Company's Declaration of Trust or
Bylaws, or otherwise) of amounts otherwise indemnifiable
hereunder; or
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(iii) Claims Under Section 16(b). The Company
shall not be obligated to indemnify Shareholder Indemnitee for
expenses and the payment of profits arising from the purchase
and sale by Indemnitee of securities in violation of Section
16(b) of the Securities Exchange Act of 1934, as amended, or
any similar successor statute.
ARTICLE VIII - NOTICES
8.01. NOTICES. Whenever notice is required to be given pursuant to
these Bylaws, it shall be construed to mean either written notice personally
served against written receipt, or notice in writing transmitted by overnight
courier, by mail, by depositing the same in a post office or letter box, in a
post-paid sealed wrapper, addressed, if to the Trust, at 2859 Paces Ferry Road,
Overlook III, Suite 1450, Atlanta, Georgia 30339 (or any subsequent address
selected by the Board of Trustees), attention President, or if to a
Shareholder, Trustee or Officer, at the address of such person as it appears on
the books of the Trust or in default of any other address at the general post
office situated in the city or county of his or her residence. Unless
otherwise specified, notice sent by mail shall be deemed to be given at the
time the same shall be thus mailed.
8.02. SECRETARY TO GIVE NOTICE. All notices required by law or
these Bylaws to be given by the Trust shall be given by the Secretary of the
Trust. If the Secretary and Assistant Secretary are absent or refuse or
neglect to act, the notice may be given by any person directed to do so by the
President.
8.03. WAIVER OF NOTICE. Whenever any notice is required to be given
pursuant to the Declaration of Trust or Bylaws of the Trust or pursuant to
applicable law, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Neither the business to be
transacted at nor the purpose of any meeting need be set forth in the waiver of
notice, unless specifically required by statute. The attendance of any person
at any meeting shall constitute a waiver of notice of such meeting.
ARTICLE IX - MISCELLANEOUS
9.01. BOOKS AND RECORDS. The Company shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its Shareholders and Board of Trustees and of executive or other
committee when exercising any of the powers or authority of the Board of
Trustees. The books and records of the Trust may be in written form or in any
other form that be converted within a reasonable time into written form for
visual inspection. Minutes shall be recorded in written form, but may be
maintained in the form of a reproduction.
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9.02. INSPECTION OF BYLAWS AND CORPORATE RECORDS. These Bylaws, the
minutes of proceedings of the Shareholders, annual statements of affairs and any
voting trust agreements on record shall be open to inspection upon the written
demand on the Trust by any Shareholder or holder of a voting trust certificate
at any reasonable time during usual business hours, for a purpose reasonably
related to such holder's interests as a Shareholder or as the holder of such
voting trust certificate.
9.03. CONTRACTS. The Board of Trustees may authorize any Officer or
Officers, agent or agents, to enter into any contract or to execute and deliver
any instrument in the name of and on behalf of the Trust, and such authority
may be general or confined to specific instances.
9.04. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Trust shall be signed by such Officers or agents of the Trust and
in such manner as shall from time to time be determined by resolution of the
Board of Trustees.
9.05. LOANS.
9.5.1. Such Officers or agents of the Trust as from time to
time have been designated by the Board of Trustees shall have authority (i) to
effect loans, advances, or other forms of credit at any time or times for the
Trust, from such banks, trust companies, institutions, corporations, firms, or
persons, in such amounts and subject to such terms and conditions, as the Board
of Trustees from time to time has designated; (ii) as security for the
repayment of any loans, advances, or other forms of credit so authorized, to
assign, transfer, endorse, and deliver, either originally or in addition or
substitution, any or all personal property, real property, stocks, bonds,
deposits, accounts, documents, bills, accounts receivable, and other commercial
paper and evidences of debt or other securities, or any rights or interests at
any time held by the Trust; (iii) in connection with any loans, advances, or
other forms of credit so authorized, to make, execute, and deliver one or more
notes, mortgages, deeds of trust, financing statements, security agreements,
acceptances, or written obligations of the Trust, on such terms and with such
provisions as to the security or sale or disposition of them as those Officers
or agents deem proper; and (iv) to sell to, or discount or rediscount with, the
banks, trust companies, institutions, corporations, firms or persons making
those loans, advances, or other forms of credit, any and all commercial paper,
bills, accounts receivable, acceptances, and other instruments and evidences of
debt at any time held by the Trust, and, to that end, to endorse, transfer, and
deliver the same.
9.5.2. From time to time the Trust shall certify to each
bank, trust company, institution, corporation, firm or person so designated,
the signatures of the Officers or agents so authorized. Each bank, trust
company, institution, corporation, firm or person so designated is authorized
to rely upon such certification until it has received written notice that the
Board of Trustees has revoked the authority of those Officers or agents.
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9.06. FISCAL YEAR. The Board of Trustees shall have the power, from
time to time, to fix the fiscal year of the Trust by a duly adopted resolution.
9.07. BYLAWS SEVERABLE. The provisions of these Bylaws are
severable, and if any provision shall be held invalid or unenforceable, that
invalidity or unenforceability shall attach only to that provision and shall
not in any manner affect or render invalid or unenforceable any other provision
of these Bylaws, and these Bylaws shall be carried out as if the invalid or
unenforceable provision were not contained herein.
ARTICLE X - AMENDMENT OF BYLAWS
10.01. BY TRUSTEES. The Board of Trustees shall have the power, at
any annual or regular meeting, or at any special meeting if notice thereof be
included in the notice of such special meeting, to alter or repeal any Bylaws
of the Trust and to make new Bylaws, except that the Board of Trustees shall
not alter or repeal (i) Section 7.01 without the consent of any Indemnified
Persons whose rights to indemnification, which rights are based on conduct
prior to such amendment, would be adversely affected by such proposed
alteration or repeal; (ii) this Section 10.1; or (iii) Section 10.2.
10.02. BY SHAREHOLDERS. Unless the Declaration of Trust provides
otherwise, the Shareholders, by affirmative vote of a majority of the shares of
the Trust generally entitled to vote in the election of Trustees, shall have
the power, at any annual meeting, or at any special meeting if notice thereof
is included in the notice of such special meeting, to alter or repeal any
Bylaws of the Trust and to make new Bylaws, except that the Shareholders shall
not alter or repeal Section 7.01 without the consent of any Indemnified Persons
adversely affected by such proposed alteration or repeal.
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