Pre-Effective Amendment to Registration Statement for Securities of a Real Estate Company — Form S-11 Filing Table of Contents
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1: S-11/A Pre-Effective Amendment to Registration Statement HTML 1.99M
for Securities of a Real Estate Company
2: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 154K
3: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 69K
4: EX-3.4 Articles of Incorporation/Organization or By-Laws HTML 8K
5: EX-5.1 Opinion re: Legality HTML 16K
6: EX-8.1 Opinion re: Tax Matters HTML 17K
7: EX-23.1 Consent of Experts or Counsel HTML 7K
EX-3.3 — Articles of Incorporation/Organization or By-Laws
Section 1. PRINCIPAL OFFICE. The principal office of NorthEnd Income Property Trust
Inc. (the “Corporation”) in the State of Maryland shall be located at such place as the
board of directors (the “Board”) of the Corporation may designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices, including
a principal executive office, at such places as the Board may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal
executive office of the Corporation or at such other place as shall be set by the Board and stated
in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for the election of
directors and the transaction of any business within the powers of the Corporation shall be held at
a time and date set by the Board each year, beginning in the year 2010, on a date which will be at
least 30 days after delivery of the Corporation’s annual report to stockholders.
Section 3. SPECIAL MEETINGS. The president, the chief executive officer, a majority
of the Board or a majority of the Independent Directors (as defined in the charter of the
Corporation (the “Charter”)) may call a special meeting of the stockholders. A special
meeting of stockholders shall also be called by the secretary of the Corporation upon the written
request of the holders of shares entitled to cast not less than ten percent of all the votes
entitled to be cast at such meeting. The written request must state the purpose of such meeting
and the matters proposed to be acted on at such meeting. Within ten days after receipt of such
written request, either in person or by mail, the secretary shall inform the stockholders who made
such request of the reasonably estimated cost of preparing and mailing notice of the meeting; and
within ten days of his or her receipt of payment of such costs, the secretary shall provide all
stockholders with written notice, either in person or by mail, of such meeting and the purpose of
such meeting. Notwithstanding anything to the contrary herein, such meeting shall be held not less
than 15 days nor more than 60 days after the secretary’s delivery of such notice. Subject to the
foregoing sentence, such meeting shall be held at the time and place specified in the stockholder
request; provided, however, that if none is so specified, such meeting shall be held at a time and
place convenient to the stockholders.
Section 4. NOTICE. Except as provided otherwise in Section 3 of this Article II, not
less than ten nor more than 90 days before each meeting of stockholders, the secretary shall give
to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote
who is entitled to
notice of the meeting written or printed notice stating the time and place of the meeting and,
in the case of a special meeting or as otherwise may be required by any statute, the purpose for
which the meeting is called, either by mail, by presenting it to such stockholder personally, by
leaving it at the stockholder’s residence or usual place of business or by any other means
permitted by Maryland law. If mailed, such notice shall be deemed to be given when deposited in
the United States mail addressed to the stockholder at the stockholder’s address as it appears on
the records of the Corporation, with postage thereon prepaid.
Subject to Section 11(a) of this Article II, any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in the notice, except
such business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of stockholders except as specifically designated in the notice.
Section 5. ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted
by an individual appointed by the Board to be chairman of the meeting or, in the absence of such
appointment, by the chairman of the board or, in the case of a vacancy in the office or absence of
the chairman of the board, by one of the following officers present at the meeting: the vice
chairman of the board, if there be one, the president, the vice presidents in their order of rank
and seniority, or, in the absence of such officers, a chairman chosen by the stockholders by the
vote of a majority of the votes cast by stockholders present in person or by proxy. The secretary,
or, in the secretary’s absence, an assistant secretary, or in the absence of both the secretary and
assistant secretaries, a person appointed by the Board or, in the absence of such appointment, a
person appointed by the chairman of the meeting shall act as secretary. In the event that the
secretary presides at a meeting of the stockholders, an assistant secretary, or in the absence of
assistant secretaries, an individual appointed by the Board or the chairman of the meeting, shall
record the minutes of the meeting. The order of business and all other matters of procedure at any
meeting of stockholders shall be determined by the chairman of the meeting. The chairman of the
meeting may prescribe such rules, regulations and procedures and take such action as, in the
discretion of such chairman, are appropriate for the proper conduct of the meeting, including,
without limitation, (a) restricting admission to the time set for the commencement of the meeting;
(b) limiting attendance at the meeting to stockholders of record of the Corporation, their duly
authorized proxies and other such individuals as the chairman of the meeting may determine; (c)
limiting participation at the meeting on any matter to stockholders of record of the Corporation
entitled to vote on such matter, their duly authorized proxies and other such individuals as the
chairman of the meeting may determine; (d) limiting the time allotted to questions or comments by
participants; (e) determining when the polls should be opened and closed; (f) maintaining order and
security at the meeting; (g) removing any stockholder or any other individual who refuses to comply
with meeting procedures, rules or guidelines as set forth by the chairman of the meeting; and (h)
concluding a meeting or recessing or adjourning the meeting to a later date and time and at a place
announced at the meeting. Unless otherwise determined by the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 6. QUORUM. At any meeting of stockholders, the presence in person or by proxy
of stockholders entitled to cast a majority of all the votes entitled to be cast at such meeting on
any matter shall constitute a quorum; but this section shall not affect any requirement under any
statute or the Charter for the vote necessary for the adoption of any measure. If, however, such
quorum shall not be present at any meeting of the stockholders, the chairman of the meeting shall
have the power to adjourn the meeting from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the meeting. At such adjourned
meeting at which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
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The stockholders present either in person or by proxy, at a meeting which has been duly called
and convened, may continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
Section 7. VOTING. The holders of a majority of the shares of stock of the
Corporation present in person or by proxy at an annual meeting at which a quorum is present may,
without the necessity for concurrence by the Board, vote to elect a director. Each share may be
voted for as many individuals as there are directors to be elected and for whose election the share
is entitled to be voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter which may properly
come before the meeting, unless more than a majority of the votes cast is required by statute or by
the Charter. Unless otherwise provided by statute or by the Charter, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting
of stockholders. Voting on any question or in any election may be viva voce unless the
chairman of the meeting shall order that voting be by ballot.
Section 8. PROXIES. A stockholder may cast the votes entitled to be cast by the
shares of stock owned of record by the stockholder in person or by proxy executed by the
stockholder or by the stockholder’s duly authorized agent in any manner permitted by law. Such
proxy or evidence of authorization of such proxy shall be filed with the secretary of the
Corporation before or at the meeting. No proxy shall be valid more than eleven months after its
date unless otherwise provided in the proxy.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in
the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be
voted by the president or a vice president, a general partner or trustee thereof, as the case may
be, or a proxy appointed by any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such
corporation or other entity or agreement of the partners of a partnership presents a certified copy
of such bylaw, resolution or agreement, in which case such person may vote such stock. Any
director or other fiduciary may vote stock registered in his or her name as such fiduciary, either
in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board may adopt by resolution a procedure by which a stockholder may certify in writing to
the Corporation that any shares of stock registered in the name of the stockholder are held for the
account of a specified person other than the stockholder. The resolution shall set forth the class
of stockholders who may make the certification, the purpose for which the certification may be
made, the form of certification and the information to be contained in it; if the certification is
with respect to a record date or closing of the stock transfer books, the time after the record
date or closing of the stock transfer books within which the certification must be received by the
Corporation; and any other provisions with respect to the procedure which the Board considers
necessary or desirable. On receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the certification, the
stockholder of record of the specified stock in place of the stockholder who makes the
certification.
Section 10. INSPECTORS. The Board, in advance of any meeting, may, but need not,
appoint one or more individual inspectors or one or more entities that designate individuals as
inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not
appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors.
In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be
filled by appointment
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made by the Board in advance of the meeting or at the meeting by the chairman of the meeting.
The inspectors, if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the validity and effect of
proxies, and shall receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. Each such report shall be in writing and signed by him or her or by
a majority of them if there is more than one inspector acting at such meeting. If there is more
than one inspector, the report of a majority shall be the report of the inspectors. The report of
the inspector or inspectors on the number of shares represented at the meeting and the results of
the voting shall be primafacie evidence thereof.
Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER
PROPOSALS.
(a) Annual Meetings of Stockholders.
(1) Nominations of individuals for election to the Board and the proposal of other business to
be considered by the stockholders may be made at an annual meeting of stockholders (i) pursuant to
the Corporation’s notice of meeting, (ii) by or at the direction of the Board or (iii) by any
stockholder of the Corporation who was a stockholder of record both at the time of giving of notice
by the stockholder as provided for in this Section 11(a) and at the time of the annual meeting, who
is entitled to vote at the meeting and who has complied with this Section 11(a).
(2) For nominations or other business to be properly brought before an annual meeting by a
stockholder pursuant to clause (iii) of paragraph (a)(1) of this Section 11, the stockholder must
have given timely notice thereof in writing to the secretary of the Corporation and such other
business must otherwise be a proper matter for action by the stockholders. To be timely, a
stockholder’s notice shall set forth all information required under this Section 11 and shall be
delivered to the secretary at the principal executive office of the Corporation not earlier than
the 150th day nor later than 5:00 p.m., Eastern Standard Time, on the 120th
day prior to the first anniversary of the date of mailing of the notice for the preceding year’s
annual meeting; provided, however, that in the event that the date of the annual meeting is
advanced or delayed by more than 30 days from the first anniversary of the date of the preceding
year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than
the 150th day prior to the date of such annual meeting and not later than 5:00 p.m.,
Eastern Standard Time, on the later of the 120th day prior to the date of such annual
meeting or the tenth day following the day on which public announcement of the date of such meeting
is first made. The public announcement of a postponement or adjournment of an annual meeting shall
not commence a new time period for the giving of a stockholder’s notice as described above. Such
stockholder’s notice shall set forth (i) as to each individual whom the stockholder proposes to
nominate for election or reelection as a director, (A) the name, age, business address and
residence address of such individual, (B) the class, series and number of any shares of stock of
the Corporation that are beneficially owned by such individual, (C) the date such shares were
acquired and the investment intent of such acquisition and (D) all other information relating to
such individual that is required to be disclosed in solicitations of proxies for election of
directors in an election contest (even if an election contest is not involved), or is otherwise
required, in each case pursuant to Regulation 14A (or any successor provision) under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder (including
such individual’s written consent to being named in the proxy statement as a nominee and to serving
as a director if elected); (ii) as to any other business that the stockholder proposes to bring
before the meeting, a description of such business, the reasons for proposing such business at the
meeting and any material interest in such business of such stockholder and any Stockholder
Associated Person (as defined below), individually or in the aggregate, including any anticipated
benefit to the stockholder and the Stockholder
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Associated Person therefrom; (iii) as to the stockholder giving the notice and any Stockholder
Associated Person, the class, series and number of all shares of stock of the Corporation which are
owned by such stockholder and by such Stockholder Associated Person, if any, and the nominee holder
for, and number of, shares owned beneficially but not of record by such stockholder and by any such
Stockholder Associated Person; (iv) as to the stockholder giving the notice and any Stockholder
Associated Person covered by clauses (ii) or (iii) of this paragraph (2) of this Section 11(a), the
name and address of such stockholder, as they appear on the Corporation’s stock ledger and current
name and address, if different, and of such Stockholder Associated Person; and (v) to the extent
known by the stockholder giving the notice, the name and address of any other stockholder
supporting the nominee for election or reelection as a director or the proposal of other business
on the date of such stockholder’s notice.
(3) Notwithstanding anything in this subsection (a) of this Section 11 to the contrary, in the
event the Board increases or decreases the maximum or minimum number of directors in accordance
with Article III, Section 2 of these Bylaws, and there is no public announcement of such action at
least 130 days prior to the first anniversary of the date of mailing of the notice of the preceding
year’s annual meeting, a stockholder’s notice required by this Section 11(a) shall also be
considered timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the principal executive office of the
Corporation not later than 5:00 p.m., Eastern Standard Time, on the tenth day following the day on
which such public announcement is first made by the Corporation.
(4) For purposes of this Section 11, “Stockholder Associated Person” of any
stockholder shall mean (i) any person controlling, directly or indirectly, or acting in concert
with, such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of
record or beneficially by such stockholder and (iii) any person controlling, controlled by or under
common control with such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporation’s notice of meeting. Nominations of individuals for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporation’s notice of meeting, (ii) by or at the direction of the Board or (iii) provided that
the Board has determined that directors shall be elected at such special meeting, by any
stockholder of the Corporation who is a stockholder of record both at the time of giving of notice
provided for in this Section 11 and at the time of the special meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this Section 11. In the event
the Corporation calls a special meeting of stockholders for the purpose of electing one or more
individuals to the Board, any such stockholder may nominate an individual or individuals (as the
case may be) for election as a director as specified in the Corporation’s notice of meeting, if the
stockholder’s notice required by paragraph (2) of this Section 11(a) shall be delivered to the
secretary at the principal executive office of the Corporation not earlier than the
150th day prior to such special meeting and not later than 5:00 p.m., Eastern Standard
Time on the later of the 120th 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 Board to be elected at such meeting. The public announcement of a
postponement or adjournment of a special meeting shall not commence a new time period for the
giving of a stockholder’s notice as described above.
(c) General.
(1) Upon written request by the secretary or the Board or any committee thereof, any
stockholder proposing a nominee for election as a director or any proposal for other business at a
meeting of stockholders shall provide, within five business days of delivery of such request (or
such
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other period as may be specified in such request), written verification, satisfactory, in the
discretion of the Board or any committee thereof or any authorized officer of the Corporation, to
demonstrate the accuracy of any information submitted by the stockholder pursuant to this Section
11. If a stockholder fails to provide such written verification within such period, the
information as to which written verification was requested may be deemed not to have been provided
in accordance with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11 shall be
eligible for election by stockholders as directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with this
Section 11. The chairman of the meeting shall have the power to determine whether a nomination or
any other business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with this Section 11.
(3) For purposes of this Section 11, (a) the “date of mailing of the notice” shall mean the
date of the proxy statement for the solicitation of proxies for election of directors and (b)
“public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable news service or (ii) in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 11, a stockholder shall also
comply with all applicable requirements of state law and of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 11. Nothing in this
Section 11 shall be deemed to affect any right of a stockholder to request inclusion of a proposal
in, nor the right of the Corporation to omit a proposal from, the Corporation’s proxy statement
pursuant to Rule 14a-8 (or any successor provision) under the Exchange Act.
Section 12. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of the
Charter or these Bylaws, Title 3, Subtitle 7 of the Maryland General Corporation Law (the
“MGCL”) (or any successor statute) shall not apply to any acquisition by any person of
shares of stock of the Corporation. This section may be repealed, in whole or in part, at any
time, whether before or after an acquisition of control shares and, upon such repeal, may, to the
extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be
managed under the direction of its Board.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any
special meeting called for that purpose, a majority of the entire Board may establish, increase or
decrease the number of directors, provided that the number thereof shall never be more than 15 nor
less than: (i) prior to the effectiveness of the registration statement on Form S-11 relating to
the Corporation’s initial public filing (the “Registration Statement”), one, or (ii) after
the effectiveness of the Registration Statement, three, and further provided that the tenure of
office of a director shall not be affected by any decrease in the number of directors.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board shall be held
immediately after and at the same place as the annual meeting of stockholders, no notice other
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than this Bylaw being necessary. In the event such meeting is not so held, 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. The Board may provide, by resolution, the time and place for the
holding of regular meetings of the Board without other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board may be called by or at the
request of the chairman of the board, if any, the chief executive officer, the president or by a
majority of the directors then in office. The person or persons authorized to call special
meetings of the Board may fix any place as the place for holding any special meeting of the Board
called by them. The Board may provide, by resolution, the time and place for the holding of
special meetings of the Board without other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of the Board shall be delivered
personally or by telephone, electronic mail, facsimile transmission, United States mail or courier
to each director at his or her business or residence address. Notice by personal delivery,
telephone, electronic mail or facsimile transmission shall be given at least 24 hours prior to the
meeting. Notice by United States mail shall be given at least three days prior to the meeting.
Notice by courier shall be given at least two days prior to the meeting. Telephone notice shall be
deemed to be given when the director or his or her agent is personally given such notice in a
telephone call to which the director or his or her agent is a party. Electronic mail notice shall
be deemed to be given upon transmission of the message to the electronic mail address given to the
Corporation by the director. Facsimile transmission notice shall be deemed to be given upon
completion of the transmission of the message to the number given to the Corporation by the
director and receipt of a completed answer-back indicating receipt. Notice by United States mail
shall be deemed to be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or
delivered to a courier properly addressed. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board need be stated in the notice,
unless specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the directors shall constitute a quorum for
transaction of business at any meeting of the Board, provided that, if less than a majority of such
directors are present at said meeting, a majority of the directors present may adjourn the meeting
from time to time without further notice, and provided further that if, pursuant to applicable law,
the Charter or these Bylaws, the vote of a majority of a particular group of directors is required
for action, a quorum must also include a majority of such group. The directors present at a
meeting which has been duly called and convened may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum.
Section 7. VOTING. The action of the majority of the directors present at a meeting
at which a quorum is present shall be the action of the Board, unless the concurrence of a greater
proportion is required for such action by applicable law, the Charter or these Bylaws; provided,
however, that any action pertaining to any transaction in which the Corporation is purchasing,
selling, leasing or mortgaging any real estate asset, making a joint venture investment or engaging
in any other transaction in which an advisor, director or officer of the Corporation, any
affiliated lessee or affiliated contract manager of any property of the Corporation or any
affiliate of the foregoing has any direct or indirect interest other than as a result of their
status as a director, officer or stockholder of the Corporation shall be approved by the
affirmative vote of a majority of the Independent Directors, even if the Independent Directors
constitute less than a quorum. If enough directors have withdrawn from a meeting to leave less
than a quorum but the meeting is not adjourned, the action of the majority of that number of
directors necessary to constitute a quorum at such meeting shall be the action of the Board, unless
the concurrence of a greater proportion is required for such action by applicable law, the Charter
or these Bylaws.
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Section 8. ORGANIZATION. At each meeting of the Board, the chairman of the board or,
in the case of a vacancy in the office or absence of the chairman of the board, the vice chairman
of the board, if any, shall act as chairman of the meeting. In the absence of both the chairman
and vice chairman of the board, the chief executive officer or in the absence of the chief
executive officer, the president or in the absence of the president, a director chosen by a
majority of the directors present shall act as chairman of the meeting. The secretary or, in his
or her absence, an assistant secretary of the Corporation, or in the absence of the secretary and
all assistant secretaries, a person appointed by the Chairman, shall act as secretary of the
meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or other communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these means shall constitute
presence in person at the meeting.
Section 10. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board may be taken without a meeting, if a consent in writing or
by electronic transmission to such action is given by each director and is filed with the minutes
of proceedings of the Board.
Section 11. VACANCIES. If for any reason any or all the directors cease to be
directors, such event shall not terminate the Corporation or affect these Bylaws or the powers of
the remaining directors hereunder (even if fewer than three directors remain). Except as may be
provided by the Board in setting the terms of any class or series of stock, any vacancy on the
Board may be filled only by a majority of the remaining directors, even if the remaining directors
do not constitute a quorum. Any director elected to fill a vacancy shall serve for the remainder
of the full term of the directorship in which the vacancy occurred and until a successor is elected
and qualifies.
Section 12. COMPENSATION. Directors shall not receive any stated salary for their
services as directors but, by resolution of the Board, may receive compensation per year and/or per
meeting and/or per visit to real property or other facilities owned or leased by the Corporation
and for any service or activity they performed or engaged in as directors. Directors may be
reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of the
Board or of any committee thereof and for their expenses, if any, in connection with each property
visit and any other service or activity they performed or engaged in as directors; but nothing
herein contained shall be construed to preclude any directors from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 13. LOSS OF DEPOSITS. No director shall be liable for any loss which may
occur by reason of the failure of the bank, trust company, savings and loan association, or other
institution with whom moneys or stock have been deposited.
Section 14. SURETY BONDS. Unless required by law, no director shall be obligated to
give any bond or surety or other security for the performance of any of his or her duties.
Section 15. RELIANCE. Each director, officer, employee and agent of the Corporation
shall, in the performance of his or her duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good faith upon the books of
account or other records of the Corporation, upon an opinion of counsel or upon reports made to the
Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board or officers of the Corporation, regardless of whether
such counsel or expert may also be a director.
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Section 16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
directors shall have no responsibility to devote their full time to the affairs of the Corporation.
Any director or officer, employee or agent of the Corporation, in his or her personal capacity or
in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to, in addition to or in competition
with those of or relating to the Corporation.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board may appoint from among its
members committees, composed of one or more directors, to serve at the pleasure of the Board. The
majority of the members of each committee shall be Independent Directors.
Section 2. POWERS. The Board may delegate to committees appointed under Section 1 of
this Article any of the powers of the Board, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner
as notice for special meetings of the Board. A majority of the members of the committee shall
constitute a quorum for the transaction of business at any meeting of the committee. The act of a
majority of the committee members present at a meeting shall be the act of such committee. The
Board may designate a chairman of any committee, and such chairman or, in the absence of a
chairman, any two members of any committee (if there are at least two members of the Committee) may
fix the time and place of its meeting unless the Board shall otherwise provide. In the absence of
any member of any such committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another director to act in the place of such absent member. Each
committee shall keep minutes of its proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board may participate in
a meeting by means of a conference telephone or other communications equipment if all persons
participating in the meeting can hear each other at the same time. Participation in a meeting by
these means shall constitute presence in person at the meeting.
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of a committee of the Board may be taken without a meeting, if a consent
in writing or by electronic transmission to such action is given by each member of the committee
and is filed with the minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board 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.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a
president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of
the board, a chief executive officer, one or more vice presidents, a chief operating officer, a
chief financial officer, one or more assistant secretaries and one or more assistant treasurers.
In addition, the Board may
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from time to time elect such other officers with such powers and duties as they shall deem
necessary or desirable. The officers of the Corporation shall be elected annually by the Board,
except that the chief executive officer or president may from time to time appoint one or more vice
presidents, assistant secretaries and assistant treasurers or other officers. Each officer shall
hold office until his or her successor is elected and qualifies or until his or her death, or his
or her 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 of an officer or agent shall
not of itself create contract rights between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be
removed, with or without cause, by the Board if in its judgment the best interests of the
Corporation would be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Any officer of the Corporation may resign at any time by
giving written notice of his or her resignation to the Board, the chairman of the board, if any,
the president or the secretary. Any resignation shall take effect immediately upon its receipt or
at such later time specified in the notice of resignation. The acceptance of a resignation shall
not be necessary to make it effective unless otherwise stated in the resignation. Such resignation
shall be without prejudice to the contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board for the
balance of the term.
Section 4. CHAIRMAN OF THE BOARD. The Board may designate a chairman of the board.
The chairman of the board shall preside over the meetings of the Board and of the stockholders at
which he or she shall be present. The chairman of the board shall perform such other duties as may
be assigned to him or her by the Board.
Section 5. CHIEF EXECUTIVE OFFICER. The Board may designate a chief executive
officer. In the absence of such designation, the president shall be the chief executive officer of
the Corporation. The chief executive officer shall have general responsibility for implementation
of the policies of the Corporation, as determined by the Board, and for the management of the
business and affairs of the Corporation. He or she may execute any deed, mortgage, bond, contract
or other instrument, except in cases where the execution thereof shall be expressly delegated by
the Board or by these Bylaws to some other officer or agent of the Corporation or shall be required
by law to be otherwise executed; and in general shall perform all duties incident to the office of
chief executive officer and such other duties as may be prescribed by the Board from time to time.
Section 6. PRESIDENT. In the absence of a chief executive officer, the president
shall in general supervise and control all of the business and affairs of the Corporation. In the
absence of a designation of a chief operating officer by the Board, the president shall be the
chief operating officer. He or she may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly delegated by the Board
or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to
be otherwise executed; and in general shall perform all duties incident to the office of president
and such other duties as may be prescribed by the Board from time to time.
Section 7. CHIEF OPERATING OFFICER. The Board may designate a chief operating
officer. The chief operating officer shall have the responsibilities and duties as set forth by
the Board or the chief executive officer.
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Section 8. CHIEF FINANCIAL OFFICER. The Board may designate a chief financial
officer. The chief financial officer shall have the responsibilities and duties as set forth by
the Board or the chief executive officer.
Section 9. 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; and shall perform such other duties as from time to time may be assigned to such vice
president by the president or by the Board. The Board may designate one or more vice presidents as
executive vice president, senior vice president, or as vice president for particular areas of
responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of
the stockholders, the Board and committees of the Board in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws
or as required by law; (c) be custodian of the corporate records and of the seal of the
Corporation; (d) keep a register of the post office address of each stockholder which shall be
furnished to the secretary by such stockholder; (e) have general charge of the stock transfer books
of the Corporation; and (f) in general perform such other duties as from time to time may be
assigned to him or her by the chief executive officer, the president or by the Board.
Section 11. TREASURER. The treasurer shall have the custody of the funds and
securities of the Corporation 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. In the absence of a designation of a chief financial officer by the Board, the
treasurer shall be the chief financial officer of the Corporation. The treasurer shall disburse
the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the president and Board, at the regular meetings of the Board or
whenever it may so require, an account of all his or her transactions as treasurer and of the
financial condition of the Corporation. If required by the Board, the treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the
Board for the faithful performance of the duties of his or her office and for the restoration to
the Corporation, in case of his or her death, resignation, retirement or removal from office, of
all books, papers, vouchers, moneys and other property of whatever kind in his or her possession or
under his or her control belonging to the Corporation.
Section 12. ASSISTANT SECRETARIES AND ASSISTANTTREASURERS. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to
them by the secretary or treasurer, respectively, or by the president or the Board. The assistant
treasurers shall, if required by the Board, give bonds for the faithful performance of their duties
in such sums and with such surety or sureties as shall be satisfactory to the Board.
Section 13. SALARIES. The salaries and other compensation of the officers shall be
fixed from time to time by the Board and no officer shall be prevented from receiving such salary
or other compensation by reason of the fact that he or she is also a director.
Section 1. CONTRACTS. The Board or any committee of the Board within the scope of its
delegated authority may authorize any officer or agent to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation and such authority may be
general or confined to specific instances. Any agreement, deed, mortgage, lease or other document
shall be valid and binding upon the Corporation when duly authorized or ratified by action of the
Board or such committee and executed by an authorized person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or agent of the Corporation in such manner as shall from time to time be
determined by the Board.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES; REQUIRED INFORMATION. Except as may be otherwise provided by
the Board or required by the Charter, stockholders of the Corporation are not entitled to
certificates representing the shares of stock held by them. In the event that the Corporation
issues shares of stock represented by certificates, such certificates shall be signed by the
officers of the Corporation in the manner permitted by the MGCL and contain the statements and
information required by the MGCL.
Section 2. TRANSFERS WHEN CERTIFICATES ISSUED. Upon surrender to the Corporation or
the transfer agent of the Corporation of a stock certificate duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate to the person entitled thereto, cancel the old certificate and record the transaction
upon its books. The Corporation shall be entitled to treat the holder of record of any share of
stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such share or 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. Notwithstanding the foregoing, transfers of shares of any class of stock will be
subject in all respects to the Charter and all of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board may direct a
new certificate to be issued in place of any certificate previously 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 to be lost, stolen or destroyed. When authorizing the issuance of
a new certificate, an officer designated by the Board may, in his or her 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 he shall
require and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any
loss or claim which may arise as a result of the issuance of a new certificate.
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Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board may set, in
advance, a record date for the purpose of determining stockholders entitled to notice of or to vote
at any meeting of stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a determination of stockholders
for any other proper purpose. Such date, in any case, shall not be prior to the close of business
on the day the record date is fixed and shall be not more than 90 days and, in the case of a
meeting of stockholders, not less than ten days, before the date on which the meeting or particular
action requiring such determination of stockholders of record is to be held or taken. In lieu of
fixing a record date, the Board may provide that the stock transfer books shall be closed for a
stated period but not longer than 20 days. If the stock transfer books are closed for the purpose
of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for the determination
of stockholders, (a) the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders 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 stockholders entitled to receive payment
of a dividend or an allotment of any other rights shall be the close of business on the day on
which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall apply to any adjournment thereof, except
when (i) the determination has been made through the closing of the transfer books and the stated
period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new record date shall be
determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at
the office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares of each class held by
such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board may issue fractional stock
or provide for the issuance of scrip, all on such terms and under such conditions as they may
determine. Notwithstanding any other provision of the Charter or these Bylaws, the Board may issue
units consisting of different securities of the Corporation. Any security issued in a unit shall
have the same characteristics as any identical securities issued by the Corporation, except that
the Board may provide that for a specified period securities of the Corporation issued in such unit
may be transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board shall have the power, from time to time, to fix the fiscal year of the Corporation
by a duly adopted resolution.
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ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the
Corporation may be authorized by the Board and declared by the Corporation, subject to the
provisions of law and the Charter. Dividends and other distributions may be paid in cash, property
or stock of the Corporation, subject to the provisions of law and the Charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other distributions,
there may be set aside out of any assets of the Corporation available for dividends or other
distributions such sum or sums as the Board may from time to time, in its absolute discretion,
think proper as a reserve fund for contingencies, for equalizing dividends or other distributions,
for repairing or maintaining any property of the Corporation or for such other purpose as the Board
shall determine to be in the best interest of the Corporation, and the Board may modify or abolish
any such reserve.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter, the Board may from time to time adopt, amend, revise
or terminate any policy or policies with respect to investments by the Corporation as it shall deem
appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board may authorize the adoption of a seal by the Corporation.
The seal shall contain the name of the Corporation and the year of its incorporation and the words
“Incorporated Maryland.” The Board may authorize one or more duplicate seals and provide for the
custody thereof.
Section 2. AFFIXING SEAL. Whenever the Corporation is permitted or required to affix
its seal to a document, it shall be sufficient to meet the requirements of any law, rule or
regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person
authorized to execute the document on behalf of the Corporation.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter or these Bylaws 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, except where such
person attends a meeting for the express purpose of objecting to the transaction of any business on
the ground that the meeting is not lawfully called or convened.
