Bylaws - Ashford Hospitality Trust Inc.
ASHFORD HOSPITALITY TRUST, INC.
AMENDED AND RESTATED BYLAWS
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders shall be
held upon reasonable notice and not less than 30 days after delivery of the
annual report, at the principal office of Ashford Hospitality Trust, Inc. (the
"Corporation") at ten o'clock a.m. unless a different hour, or place is fixed by
the Board of Directors.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETING. At an annual
meeting of stockholders, other than the election of directors as provided in
Article II hereof, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before the
annual meeting (a) pursuant to the notice of meeting delivered to stockholders
in accordance with Section 4 of this Article I, (b) by, or at the direction of,
a majority of the Board of Directors or (c) by any stockholder of the
Corporation who is a stockholder of record at the time of giving notice provided
for in Section 2 and at the time of the meeting is entitled to vote at the
meeting and complies with the notice procedures set forth in this Section 2. For
a proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
less than 90 days nor more than 120 days prior to the first anniversary of the
date of the mailing of the notice for the preceding year's annual meeting (for
purposes of the Corporation's 2004 annual meeting, notice of the preceding
year's annual meeting shall be deemed to have been mailed on March 31, 2003);
provided, however, that in the event that the date of the mailing of the notice
for the current year's annual meeting is advanced or delayed by more than 30
days from the first anniversary of the date of mailing the notice for the
preceding year's annual meeting, notice by the stockholder to be timely must be
so delivered not less than 90 days nor more than 120 days prior to the date of
mailing of the notice for such annual meeting (or the tenth day following the
day on which disclosure of the date mailing of the notice for such meeting is
made, if later). In no event shall the public announcement of a postponement or
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
A stockholder's notice must contain, as of the date such notice is
delivered to the Secretary of the Corporation,:
(a) the name and address of the stockholder delivering the
notice;
(b) a statement with respect to the amount of the
Corporation's stock beneficially and/or legally owned by such
stockholder;
(c) the nature of any such beneficial ownership of such stock,
the beneficial ownership of any such stock legally held by such
stockholder but beneficially owned by one or more others, and the
length of time for which all such stock has been beneficially and/or
legally owned by such stockholder; and
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(d) a description of the proposed business to be brought
before the meeting, the reason for conducting such business at the
meeting, and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made.
The presiding officer of the meeting shall have the discretion to
declare at the meeting that any business proposed by a stockholder to be
considered at the meeting is out of order and that such business shall not be
transacted at the meeting if:
(a) the presiding officer concludes that the matter has been
proposed in a manner inconsistent with this Section 2; or
(b) the presiding officer concludes that the subject matter of
the proposed business is inappropriate for consideration by the
stockholders at the meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
SECTION 3. MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS AND SPECIAL
MEETINGS. The purpose of each annual meeting of the stockholders is to elect
directors of the Corporation and to transact such other business as may be
properly brought forth at such annual meeting in accordance with Section 2
above. Only those matters set forth in the notice of a special meeting, as set
forth in Section 4 below, may be considered or acted upon at such special
meeting, unless otherwise provided by law.
SECTION 4. NOTICE OF MEETINGS; ADJOURNMENTS. A written notice of all
annual meetings of stockholders stating the hour, date and place of such annual
meetings and, to the extent required by the Maryland General Corporation Law,
the purpose for which the meeting has been called shall be given by the
Secretary or an Assistant Secretary (or other person authorized by these Bylaws
or by law) not less than 10 days nor more than 90 days before the meeting,
unless any provisions of the Maryland General Corporation Law prescribe a
different period of notice, to each stockholder entitled to vote at such meeting
or to each stockholder who, under the Charter, as amended from time to time or
under these Bylaws, is entitled to such notice, by delivering such notice to him
or by mailing it, postage prepaid, addressed to such stockholder at the address
of such stockholder as it appears on the Corporation's stock transfer books or
by any other means permitted by Maryland law. Such notice shall be deemed to be
delivered when hand delivered to such address or if mailed, when deposited in
the mail so addressed, with postage prepaid.
Subject to the provisions of Section 12 of this Article I, notice of
all special meetings of stockholders shall be given in the same manner as
provided for annual meetings of the stockholders, except that the written notice
of all special meetings shall state the purpose or purposes for which the
meeting has been called.
Notice of an annual or special meeting of stockholders need not be
given to a stockholder if a written waiver of notice is executed before or after
such meeting by such stockholder, or if
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such stockholder attends such meeting in person or by proxy. Neither the
business to be transacted at, nor the purpose of, any annual or special meeting
of stockholders need be specified in any written waiver of notice.
Any previously scheduled meeting of the stockholders may be postponed,
and any special meeting of the stockholders may be canceled, by resolution of
the Board of Directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders. When any annual or special meeting
of stockholders is adjourned to another hour, date or place, notice need not be
given of the adjourned meeting other than an announcement at the meeting at
which the adjournment is taken of the hour, date and place to which the meeting
is adjourned; provided, however, that if the adjournment is to a date more than
120 days after the original record date, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given, as in the case of the original meeting, to each stockholder of
record entitled to vote at such meeting on notice thereof.
SECTION 5. QUORUM. Except as otherwise provided by law, stockholders
entitled to cast a majority of all the votes entitled to be cast at the meeting,
represented in person or by proxy, shall constitute a quorum at any annual or
special meeting of stockholders; but if less than a quorum is present at a
meeting, stockholders present or the presiding officer may adjourn the meeting
from time to time, and the meeting may be held as adjourned without further
notice, except as provided in Section 4 of this Article I. At such adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally noticed. The stockholders
present at a duly constituted meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
SECTION 6. VOTING AND PROXIES. Stockholders shall have one vote for
each share of stock entitled to vote owned by them of record according to the
books of the Corporation, unless otherwise provided by law or by the Charter.
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after eleven months from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting before being voted. A proxy purporting to be executed by or on behalf of
a stockholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
SECTION 7. ACTION AT MEETING. When a quorum is present, any matter
before any annual or special meeting of stockholders shall be decided by vote of
the holders of a majority of the shares of stock voting on such matter, except
where a larger vote is required by law, by the Charter or by these Bylaws. Any
election of directors by stockholders shall be determined by a plurality of the
votes cast, except where a larger vote is required by law, by the Charter or by
these Bylaws. The Corporation shall not directly or indirectly vote any shares
of its own stock except as to shares which it holds in a fiduciary capacity or
except as otherwise permitted by law. An abstention shall not be deemed a vote
cast.
SECTION 8. INSPECTORS OF ELECTION. The Board of Directors by
resolutions may appoint one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
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representatives, to act at a meeting of stockholders and make a written report
thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed by the Board of Directors to act or is able to act at a meeting of
stockholders, the presiding officer of the meeting may appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law. The presiding
officer of the meeting shall fix and announce at the meeting the date and time
of the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary shall
make, or shall cause to be made, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of stock registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
SECTION 10. PRESIDING OFFICER. The presiding officer at all annual or
special meetings of stockholders shall have the power, among other things, to
adjourn such meeting at any time and from time to time, subject to Sections 4
and 5 of this Article I. The order of business and all other matters of
procedure at any meeting of the stockholders shall be determined by the
presiding officer.
SECTION 11. STOCKHOLDER ACTION. Except as otherwise required by law and
subject to the rights of the holders of any shares or series of stock having a
preference over the common stock as to dividends, or upon liquidation, special
meetings of the holders of common stock of the Corporation may be called only by
(i) the Board of Directors pursuant to a resolution approved by the affirmative
vote of a majority of the directors then in office, (ii) the Chairman of the
Board of Directors, if one is elected, or (iii) the President of the
Corporation. In addition, special meetings of the holders of common stock shall
be called by the Secretary of the Corporation upon the written request of the
holders of common stock entitled to cast not less than 25% of all 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 at such meeting). Only
those matters set forth in the notice of the special meeting may be considered
or acted upon at such special meeting, unless otherwise provided in these
Bylaws. Advance notice of any matters which any holder of common stock intends
to propose for action at an annual meeting shall be given in the manner provided
in Section 2 of this Article I.
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ARTICLE II
DIRECTORS
SECTION 1. POWERS. All of the powers of the Corporation shall be
exercised by or under the direction of the Board of Directors except as
otherwise provided by the Charter or required by law.
SECTION 2. NUMBER AND TERMS. The Board of Directors shall establish and
may increase or decrease the number of directors of the Corporation, provided,
that the number thereof shall never be less than the minimum number permitted
under the Maryland General Corporation Law nor more than 15, and further
provided, that the tenure of office of a director shall not be affected by any
decrease in the number of directors. The directors shall be elected at the
annual meeting of the stockholders and each director shall be elected to serve
for a term of one year and until his successor shall be elected and shall
qualify or until his earlier resignation or removal.
SECTION 3. DIRECTOR NOMINATIONS. Nomination of candidates for election
as directors of the Corporation at any annual or special meeting of stockholders
may be made (a) by, or at the direction of, a majority of the Board of Directors
or (b) by any stockholder entitled to vote at such annual meeting. Only persons
nominated in accordance with the procedures set forth in this Section 3 shall be
eligible for election as directors at an annual or special meeting of
stockholders.
Nominations, other than those made by, or at the direction of, the
Board of Directors shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 3. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive office of the Corporation not less than 90 days nor more
than 120 days prior to the first anniversary of the date of the mailing of the
notice for the preceding year's annual meeting (for purposes of the
Corporation's 2004 annual meeting, notice of the preceding year's annual meeting
shall be deemed to have been mailed on March 31, 2003); provided, however, that
in the event that the date of the mailing of the notice for the current year's
annual meeting is advanced or delayed by more than 30 days from the first
anniversary of the date of mailing the notice for the preceding year's annual
meeting, notice by the stockholder to be timely must be so delivered not less
than 90 days nor more than 120 days prior to the date of mailing of the notice
for such annual meeting (or the tenth day following the day on which disclosure
of the date mailing of the notice for such meeting is made, if later). In no
event shall the public announcement of a postponement or adjournment of an
annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth, as of the
date such notice is delivered to the Secretary of the Corporation:
(a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director:
(i) the name, age, business address and residence
address of such person;
(ii) the principal occupation or employment of such
person;
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(iii) the class and number of shares of the
Corporation's capital stock which are beneficially owned by
such person on the date of such stockholder notice; and
(iv) any other information relating to such person
that is required to be disclosed in solicitations of proxies
with respect to nominees for election as directors, or is
otherwise required, pursuant to Rule 14a-8 under the
Securities Act of 1934, as amended (the "Exchange Act"),
including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if
elected; and
(b) as to the stockholder giving the notice:
(i) the name and address, as they appear on the
Corporation's stock transfer books, of such stockholder and of
the beneficial owners (if any) of the stock registered in such
stockholder's name and the name and address of other
stockholders known by such stockholder to be supporting such
nominees; and
(ii) the class and number of shares of the
Corporation's capital stock which are beneficially owned by
such stockholder and beneficial owners (if any) on the date of
such stockholder notice and by any other stockholders known by
such stockholder to be supporting such nominees on the date of
such stockholder notice.
At the request of the Board of Directors, any person nominated by, or
at the direction of, the Board of Directors for election as a Director at an
annual or special meeting shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. The Board of Directors may reject any nomination
by a stockholder not timely made in accordance with the requirements of this
Section 3.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3. Election of directors at the annual or special meeting need not be by
written ballot, unless otherwise provided by the Board of Directors or presiding
officer at such annual or special meeting. If written ballots are to be used,
ballots bearing the names of all the persons who have been nominated for
election as directors at the annual or special meeting in accordance with the
procedures set forth in this Section 3 shall be provided for use at the annual
or special meeting.
SECTION 4. QUALIFICATION. No Director need be a stockholder of the
Corporation. Unless waived by a vote of the Board of Directors, no individual
may serve as a director of the Corporation if he has reached the age of 70 years
at the time of election.
SECTION 5. VACANCIES. Any vacancy occurring on the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled in the manner provided in the Charter.
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SECTION 6. RESIGNATION. Any Director may resign at any time by giving
written notice to the Board of Directors, effective upon execution and delivery
to the Corporation of such written notice or upon any future date specified in
the notice, unless the resignation otherwise provides.
SECTION 7. REGULAR MEETINGS. The regular annual meeting of the Board of
Directors shall be held, without other notice than this Bylaw, on the same date
and at the same place as the annual meeting of stockholders following the close
of such meeting of stockholders. Other regular meetings of the Board of
Directors may be held at such hour, date and place as the Board of Directors may
by resolution from time to time determine without other notice than such
resolution.
SECTION 8. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of the
Directors, the Chairman of the Board, if one is elected, or the President. The
person calling any such special meeting of the Board of Directors may fix the
hour, date and place thereof.
SECTION 9. NOTICE OF MEETINGS. Notice of the hour, date and place of
all special meetings of the Board of Directors shall be given to each Director
by the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting of
the Board of Directors shall be given to each Director in person or by
telephone, electronic mail, facsimile transmission or by telegram sent to his
business or home address at least 24 hours in advance of the meeting, or by
written notice mailed to his business or home address at least 48 hours in
advance of the meeting. Such notice shall be deemed to be delivered when hand
delivered to such address, read to such Director by telephone, deposited in the
mail so addressed, with postage thereon prepaid if mailed, upon transmission of
the message by electronic mail, upon completion of transmission of a facsimile
message and receipt of a completed answer back indicating receipt or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for more than 30 days, notice of the adjourned meeting shall be given
as in the case of an original meeting. It shall not be necessary to give any
notice of the hour, date or place of any meeting adjourned for 30 days or less
or of the business to be transacted at such meeting, other than an announcement
at the meeting at which such adjournment is taken of the hour, date and place to
which the meeting is adjourned.
A written waiver of notice executed before or after a meeting by a
director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting. Except as otherwise
required by law, by the Charter or by these Bylaws, neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
SECTION 10. QUORUM. At any meeting of the Board of Directors, a
majority of the Directors then in office shall constitute a quorum for the
transaction of business, but if less than a quorum is present at a meeting, a
majority of the directors present may adjourn the meeting from
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time to time, and the meeting may be held as adjourned without further notice,
except as provided in Section 10 of this Article II. Any business which might
have been transacted at the meeting as originally noticed may be transacted at
such adjourned meeting at which a quorum is present.
SECTION 11. ACTION AT MEETING. At any meeting of the Board of Directors
at which a quorum is present and subject to Section 8 of Article VII of the
Charter, a majority of the Directors present may take any action on behalf of
the Board of Directors, unless otherwise required by law, by the Charter or
these Bylaws.
SECTION 12. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the proceedings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 13. MANNER OF PARTICIPATION. Members of the Board of Directors
or of committees elected by the Board pursuant to Section 15 of this Article II
may participate in meetings of the Board or of such committees by means of
conference telephone or similar communications equipment by means of which all
directors 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 purposes of these Bylaws.
SECTION 14. COMMITTEES. The Board of Directors, by the affirmative vote
of a majority of the directors then in office may elect from its number
directors to serve on one or more committees, including an Audit Committee, a
Compensation Committee and an Nominating/Corporate Governance Committee, and may
delegate thereto some or all of its powers except those which by law, by the
Charter or by these Bylaws, may not be delegated. Except as the Board of
Directors may otherwise determine or as required by law, by the Charter or these
Bylaws, any such committee may make rules for conduct of its business, but
unless otherwise provided by the Board of Directors or in such rules, its
business shall be conducted so far as possible in the same manner as is provided
by the Charter and by these Bylaws for the Board of Directors. The Board of
Directors may abolish any such committee, other than the Audit Committee, at any
time. Any committee to which the Board of Directors delegates any of its powers
or duties shall keep records of its meetings and shall report its action to the
Board of Directors.
The Board of Directors shall have power to rescind any action of any
committee, other than the Audit Committee, but no such rescission shall have
retroactive effect. With the approval of the Board of Directors, the Chief
Executive Officer may appoint such other committees consisting of such directors
as the Chief Executive Officer shall select. Any recommendations of such
committees appointed by the Chief Executive Officer shall be submitted to the
Board of Directors.
SECTION 15. COMPENSATION OF DIRECTORS. Directors shall receive
compensation for their services as shall be determined by a majority of the
Board of Directors, provided that Directors who are serving the Corporation as
officers or employees and who receive
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compensation for their services as such ("Employee Directors") shall not receive
any salary or other compensation for their services as Directors of the
Corporation; provided, however, that such Employee Directors may be paid their
reasonable expenses incurred as a director.
ARTICLE III
OFFICERS
SECTION 1. ENUMERATION. The officers of the Corporation shall consist
of a President, a Chief Executive Officer, a Secretary and a Treasurer and such
other officers, including without limitation a Chairman of the Board, a Chief
Operating Officer, a Chief Legal Officer, a Chief Financial Officer, a Chief
Accounting Officer, one or more Vice Presidents (including Executive Vice
Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant
Treasurers and Assistant Secretaries, as the Board of Directors may determine.
SECTION 2. ELECTION AND APPOINTMENT. At the regular annual meeting of
the Board of Directors following the annual meeting of stockholders, the Board
of Directors shall elect the President, the Chief Executive Officer, the
Treasurer and the Secretary. Other officers may be appointed by the Board of
Directors at such regular annual meeting of the Board of Directors or at any
other regular or special meeting, or other officers may be appointed by the
Chief Executive Officer.
SECTION 3. QUALIFICATION. No officer need be a stockholder or a
director. Any person may occupy more than one office of the Corporation at any
time except the offices of President and Vice President. Any officer may be
required by the Board of Directors to give bond, at the Corporation's expense,
for the faithful performance of his duties in such amount and with such sureties
as the Board of Directors may determine.
SECTION 4. TENURE. Except as otherwise provided by the Charter or by
these Bylaws, each of the officers of the Corporation shall hold office until
the regular annual meeting of the Board of Directors following the next annual
meeting of stockholders and until his successor is elected and qualified or
until his earlier resignation or removal. Election or appointment of an officer,
employee or agent shall not of itself create contract rights. The Board of
Directors may, however, authorize the Corporation to enter into an employment
contract with any officer in accordance with law, but no such contract right
shall prohibit the right of the Board of Directors to remove any officer at any
time in accordance with Section 6 of this Article III.
SECTION 5. RESIGNATION. Any officer may resign by delivering his
written resignation to the Corporation addressed to the President or the
Secretary, and such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
SECTION 6. REMOVAL. If the Board of Directors in its judgment finds
that the best interests of the Corporation will be served, the Board of
Directors may remove any officer by the affirmative vote of a majority of the
Directors then in office. Such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
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SECTION 7. ABSENCE OR DISABILITY. In the event of the absence or
disability of any officer, the Board of Directors may designate another officer
to act temporarily in place of such absent or disabled officer.
SECTION 8. VACANCIES. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 9. CHIEF EXECUTIVE OFFICER. The President shall be the Chief
Executive Officer, unless the Board of Directors shall elect another officer to
be the Chief Executive Officer. The Chief Executive Officer shall, subject to
the direction of the Board of Directors, have general supervision and control of
the Corporation's business and shall preside, when present, at all meetings of
the stockholders.
SECTION 10. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Board of Directors. If the Chairman of the Board
is absent, the President shall preside at meetings of the Board of Directors. If
the Chairman of the Board is not the Chief Executive Officer and in the absence
of the Chief Executive Officer, the Chairman of the Board shall preside, when
present, at all meetings of the stockholders. The Chairman of the Board shall
have such other powers and shall perform such other duties as the Board of
Directors may from time to time designate. If the Chairman of the Board is not
the Chief Executive Officer, he shall also have such powers and perform such
duties as the Chief Executive Officer may from time to time designate.
SECTION 11. PRESIDENT. In the absence of the Chairman of the Board, the
President shall preside, when present, at all meetings of the Board of
Directors. If the President is not the Chief Executive Officer or Chairman of
the Board and in the absence of such persons, the President shall preside, when
present, at all meetings of the stockholders. If the President is not the Chief
Executive Officer, he shall have such powers and perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 12. CHIEF OPERATING OFFICER, CHIEF LEGAL OFFICER, CHIEF
FINANCIAL OFFICER AND CHIEF ACCOUNTING OFFICER. Any Chief Operating Officer,
Chief Legal Officer, Chief Financial Officer or Chief Accounting Officer shall
have such powers and shall perform such duties as the Board of Directors or the
Chief Executive Officer may from time to time designate.
SECTION 13. VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS. Any Vice
President (including any Executive Vice President or Senior Vice President) and
Assistant Vice President shall have such powers and shall perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 14. TREASURER AND ASSISTANT TREASURERS. The Chief Financial
Officer shall be the Treasurer, unless the Board of Directors shall elect
another officer to be the Treasurer. The Treasurer shall, subject to the
direction of the Board of Directors and except as the Board of Directors or the
Chief Executive Officer may otherwise provide, have general charge of the
financial affairs of the Corporation and shall cause to be kept accurate books
of account. He shall have custody of all funds, securities, and valuable
documents of the Corporation. He shall have such other duties and powers as may
be designated from time to time by the Board of
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Directors or the Chief Executive Officer. In the absence of a Chief Financial
Officer, the office of the Treasurer shall be deemed to be the office of the
Chief Financial Officer of the Corporation whenever the signature of the Chief
Financial Officer is required on any document or instrument, by the laws of the
United States or any state, or elsewhere in the Bylaws, and the Treasurer shall
have authority to affix his signature in such capacity.
The office of the Vice President of Finance and Accounting shall be
deemed an Assistant Treasurer of the Corporation whenever the signature of an
Assistant Treasurer is required on any document or instrument, by the laws of
the United States or any state, or elsewhere in these Bylaws, and the Vice
President of Finance and Accounting shall have authority to affix his signature
in such capacity. Any Treasurer or Assistant Treasurer shall have such powers
and perform such duties as the Board of Directors or the Chief Executive Officer
may from time to time designate.
SECTION 15. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
the absence of the Secretary from any such meeting, a temporary secretary chosen
at the meeting shall record the proceedings thereof. The Secretary shall have
charge of the stock ledger (which may, however, be kept by any transfer or other
agent of the Corporation). The secretary shall have custody of the seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to affix it to any instrument requiring it, and, when so affixed, the seal may
be attested by the signature of the Secretary or an Assistant Secretary. The
Secretary shall have such other duties and powers as may be designated from time
to time by the Board of Directors or the Chief Executive Officer. In the absence
of the Secretary, any Assistant Secretary may perform the duties and
responsibilities of the Secretary.
Any Assistant Secretary shall have such powers and perform such duties
as the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 16. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board (or an appropriately designated committee of the
Board) and no officer shall be prevented from receiving such salary by reason of
the fact that he is also a director of the Corporation.
SECTION 17. OTHER POWERS AND DUTIES. Subject to these Bylaws and to
such limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
ARTICLE IV
STOCK
SECTION 1. CERTIFICATES OF STOCK. Unless otherwise provided by the
Board of Directors or by law, each stockholder shall be entitled to a
certificate of the stock of the Corporation in such form as may from time to
time be prescribed by the Board of Directors. Such certificate shall
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bear the seal of the Corporation, if one has been adopted, and shall be signed
by the Chairman of the Board of Directors, President or a Vice President and
countersigned by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. The seal of the Corporation, if one has been adopted, and
any and all signatures on the certificate may be a facsimile, including those of
any transfer agent or registrar. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the time
of its issue. Every certificate for shares of stock which are subject to any
restriction on transfer and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
SECTION 2. TRANSFERS. Subject to any restrictions on transfer and
unless otherwise provided by the Board of Directors, shares of stock may be
transferred only on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate therefor properly endorsed
or accompanied by a written assignment or power of attorney properly executed,
with transfer stamps (if necessary) affixed, and with such proof of the
authenticity of signature as the Corporation or its transfer agent may
reasonably require.
SECTION 3. RECORD HOLDERS. Except as may otherwise be required by law,
by the Charter or by these Bylaws, the Corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote with
respect thereto, regardless of any transfer, pledge or other disposition of such
stock, until the shares have been transferred on the books of the Corporation in
accordance with the requirements of these Bylaws.
It shall be the duty of each stockholder to notify the Corporation or
its transfer agent of his post office address and any changes thereto.
SECTION 4. RECORD DATE. In order that the Corporation may determine the
stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 90 days nor less than 10
days before the date of such meeting, nor more than 90 days prior to any other
action. In such case, only stockholders of record on such record date shall be
so entitled, notwithstanding any transfer of stock on the stock transfer books
of the Corporation after the record date.
If no record date is fixed:
(a) the record date for determining stockholders entitled to
receive notice of or to vote at a meeting of stockholders shall be the
later of (i) the close of business on the day on which notice is mailed
or (ii) the 30th day before the meeting; and
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(b) the record date for determining stockholders entitled to
receive payment of a dividend or an allotment of any rights shall be at
the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
SECTION 5. REPLACEMENT OF CERTIFICATES. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof upon such terms as the Corporation or its transfer
agent may prescribe.
SECTION 6. TRANSFER AGENTS AND REGISTRARS. The Corporation may serve as
the transfer agent and registrar of the shares of stock, or the Board of
Directors may, in its discretion, appoint one or more responsible banks, trust
companies or other entity as the Board of Directors may deem advisable, from
time to time, to act as transfer agents and registrars of shares of stock. No
certificate for shares of stock shall be valid until countersigned by the
transfer agent and registered by the registrar.
SECTION 7. STOCKHOLDERS' ADDRESSES. Every stockholder or transferee
shall furnish the Secretary or a transfer agent with the address to which notice
of meetings and all other notices may be served upon or mailed to such
stockholder or transferee, and in default thereof, such stockholder or
transferee shall not be entitled to service or mailing of any such notice.
SECTION 8. REPURCHASE OF SHARES OF STOCK. The Corporation may purchase
its shares of stock and invest its assets in its own shares of stock, provided
that in each case the consent of the Board of Directors shall have been
obtained.
ARTICLE V
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall, to the
maximum extent permitted by the Maryland General Corporation Law in effect from
time to time, indemnify, and, without a preliminary determination of the
ultimate entitlement to indemnification, pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (a) any individual who is a
present or former director or officer of the Corporation or (b) any individual
who, while a director or officer of the Corporation and at the request of the
Corporation, serves or has served another corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or any other
enterprise as a director, officer, partner or trustee from and against any claim
or liability to which such person may become subject or which such person may
incur by reason of his status as a present or former director or officer of the
Corporation or director, officer, partner or trustee of such other entity (each,
an "Indemnitee"). The Corporation shall, to the maximum extent permitted by the
Maryland General Corporation Law in effect from time to time, provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Corporation in any of the capacities described above (any such person
shall also be deemed to be an "Indemnitee").
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
With the approval of the Board of Directors, the Corporation shall, to the
maximum extent permitted by the Maryland General Corporation Law in effect from
time to time, and to such further extent as it shall deem appropriate under the
circumstances, provide such indemnification and
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advancement of expenses as described in Section 1 above, to any employee or
agent of the Corporation or a predecessor of the Corporation (each such person
shall also be deemed to be an "Indemnitee").
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under this
Article V is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If the Indemnitee is
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In any suit brought by an Indemnitee who is
a present or former director to enforce a right to indemnification hereunder
(but not in a suit brought by the Indemnitee to enforce a right to an
advancement of expenses), it shall be a defense that such Indemnitee has not met
the applicable standard of conduct set forth in the Maryland General Corporation
Law. In addition, in any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that the Indemnitee
who is a present or former director has not met the applicable standard of
conduct set forth in the Maryland General Corporation Law. Neither the failure
of the Corporation (including its Board of Directors, independent legal counsel,
or stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the Maryland General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct. In any suit brought by the Indemnitee to enforce
a right to indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article V or
otherwise shall be on the Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
to advancement of expenses conferred in this Article V shall not be exclusive of
any other right which any person may have or hereafter acquire under these
Bylaws, the Charter or any statute, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or any director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Maryland
General Corporation Law.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall end on
December 31 of each year or on such other date as may be fixed by the Board of
Directors.
SECTION 2. SEAL. The seal of the Corporation shall be in the form of a
circle and shall have inscribed thereon the name of the Corporation and the year
of its organization. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced.
SECTION 3. INVESTMENT POLICIES. The directors may from time to time
adopt, amend, revise or terminate any policy or policies with respect to
investments by the Corporation as they shall deem appropriate in their sole
discretion.
SECTION 4. EXECUTION OF INSTRUMENTS. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the Chief Executive Officer the President or the Treasurer or any other
officer, employee or agent of the Corporation as the Board of Directors may
authorize.
SECTION 5. VOTING OF SECURITIES. Unless the Board of Directors
otherwise provides, the Chairman of the Board, if one is elected, the Chief
Executive Officer, the President or the Treasurer may waive notice of and act on
behalf of this Corporation, or appoint another person or persons to act as proxy
or attorney in fact for this Corporation with or without discretionary power
and/or power of substitutions at any meeting of stockholders or stockholders of
any other corporation or organization, any of whose securities are held by this
Corporation.
SECTION 6. RESIDENT AGENT. The Board of Directors may appoint a
resident agent upon whom legal process may be served in any action or proceeding
against the Corporation.
SECTION 7. CORPORATE RECORDS. The original or attested copies of the
Charter, Bylaws and records of all meetings of the incorporators, stockholders
and the Board of Directors and the stock transfer books, which shall contain the
names of all stockholders, their record addresses and the amount of stock held
by each, may be kept outside the State of Maryland and shall be kept at the
principal office of the Corporation, at the office of its counsel or at an
office of its transfer agent.
SECTION 8. AMENDMENTS. These Bylaws may be altered, amended or
repealed, and new bylaws adopted, by the vote of a majority of the entire Board
of Directors or by a vote of a majority of the voting power of the common stock
of the Corporation.
SECTION 9. OFFICES. The principal office of the Corporation within the
State of Maryland shall be located at such place as the Board of Directors may
designate. The Corporation may have additional offices, including a principal
executive office, at such place or places both within and without the State of
Maryland as the Board of Directors may from time to time determine or the
business of the Corporation may require.
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