UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of the
Securities Exchange Act of
1934
Date
of Report (Date of earliest event reported): February 19, 2008
GSC
INVESTMENT CORP.
(Exact
name of registrant as specified in its charter)
Maryland
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001-33376
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20-8700615
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(State
or other jurisdiction
of
Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification
No.)
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888
Seventh Ave, New York, NY 10019
(Address
of principal executive offices and Zip Code)
(212)
884-6200
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.03. Amendments to Articles of
Incorporation or Bylaws; Change in Fiscal Year
Effective February 19, 2008, the Board
of Directors of GSC Investment Corp. (the "Corporation") amended and restated
its Bylaws. The following is a summary of the changes effected by the
adoption of the amended and restated Bylaws, which is qualified in its entirety
by reference to the amended and restated Bylaws filed as Exhibit 3.1
hereto.
In addition to the changes described
below, the amended and restated Bylaws include certain changes to clarify
language, comply or be consistent with Maryland law or to make various technical
or non-substantive changes.
ARTICLE II
– MEETINGS OF STOCKHOLDERS
Annual Meeting of
Stockholders. The amended and restated Bylaws change the
period during which the Corporation is required to hold its annual meeting from
May to July.
Notice of Stockholders
Meetings. The amended and restated Bylaws clarify that
imperfect notice to one or more stockholders will not affect the validity of an
annual or special meeting and that the Corporation can postpone or cancel a
meeting of the stockholders by making a public announcement prior to the
meeting.
Advance Notice
Provisions. The amended and restated Bylaws (i) allow the
Corporation to discard materially inaccurate information submitted by
stockholders for the election of a director or other business and (ii) require
written updates on information provided for such business.
ARTICLE
III –DIRECTORS
Ratification. The
amended and restated Bylaws reinforce and clarify the power of the Board of
Directors or the stockholders to ratify any action or inaction that they could
have originally authorized, including any action or inaction in derivative
proceedings or other matters.
Emergency
Provisions. The amended and restated Bylaws add provisions to
allow the Board of Directors to react to a catastrophe or similar
emergency.
ARTICLE VI
– CONTRACTS, LOANS, CHECKS AND DEPOSITS
Contracts. The
amended and restated Bylaws clarify that an officer of the Corporation may
execute any document that is approved by the Corporation’s manager, within the
scope of the manager’s existing authority, without the need for separate action
by the Board of Directors.
ARTICLE
VII – STOCK
Certificates. The
amended and restated Bylaws allow the Board of Directors to specify that holders
of uncertificated shares are not entitled to receive certificates upon
request.
Record
Date. The amended and restated Bylaws remove references to the
closing of the Corporation's transfer books.
ITEM 9.01. FINANCIAL STATEMENTS AND
EXHIBITS.
(d) Exhibits.
The following exhibit is filed
herewith:
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3.2
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Bylaws
of GSC Investment Corp., as amended and restated as of February 19,
2008.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned thereunto duly
authorized.
Date: March
5, 2008
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GSC
INVESTMENT CORP.
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By: |
/s/ David
L. Goret |
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David
L. Goret
Vice
President and Secretary
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EXHIBIT
INDEX
3.2
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Bylaws
of GSC Investment Corp., as amended and restated as of February 19,
2008.
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5
EXHIBIT
3.2
GSC INVESTMENT
CORP.
BYLAWS
ARTICLE
I
OFFICES
Section
1. PRINCIPAL OFFICE. The
principal office of the Corporation in the State of Maryland shall be located at
such place as the Board of Directors may designate.
Section
2. ADDITIONAL OFFICES.
The Corporation may have additional offices, including a principal executive
office, at such places as the Board of Directors 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 of Directors 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
on a date and at the time set by the Board of Directors during the month of July
in each year, beginning in the year 2008.
Section
3. SPECIAL
MEETINGS.
(a) General. The chairman
of the board, chief executive officer, president or Board of Directors may call
a special meeting of the stockholders. Subject to subsection (b) of this Section
3, a special meeting of stockholders shall also be called by the secretary of
the Corporation upon the written request of stockholders entitled to cast not
less than a majority of all the votes entitled to be cast at such meeting.
Notwithstanding the foregoing sentence, if no directors remain in office, a
special meeting of stockholders for the purpose of electing directors shall be
called by the secretary of the Corporation upon the written request of
stockholders entitled to cast at least ten percent of all the votes entitled to
be cast at such meeting.
(b) Stockholder Requested
Special Meetings.
(1) Any
stockholder of record seeking to have stockholders request a special meeting
shall, by sending written notice to the secretary (the “Record Date Request
Notice”) by registered mail, return receipt requested, request the Board of
Directors to
fix a
record date to determine the stockholders entitled to request a special meeting
(the “Request Record Date”). The Record Date Request Notice shall set
forth the purpose of the meeting and the matters proposed to be acted on at it,
shall be signed by one or more stockholders of record as of the date of
signature (or their agents duly authorized in a writing accompanying the Record
Date Request Notice), shall bear the date of signature of each such stockholder
(or such agent) and shall set forth all information relating to each such
stockholder that must 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”). Upon receiving the Record Date Request Notice, the Board of
Directors may fix a Request Record Date. The Request Record Date shall not
precede and shall not be more than ten days after the close of business on the
date on which the resolution fixing the Request Record Date is adopted by the
Board of Directors. If the Board of Directors, within ten days after the date on
which a valid Record Date Request Notice is received, fails to adopt a
resolution fixing the Request Record Date, the Request Record Date shall be the
close of business on the tenth day after the first date on which the Record Date
Request Notice is received by the secretary.
(2) In
order for any stockholder to request a special meeting, one or more written
requests for a special meeting signed by stockholders of record (or their agents
duly authorized in a writing accompanying the request) as of the Request Record
Date entitled to cast not less than a majority (the “Special Meeting
Percentage”) of all of the votes entitled to be cast at such meeting (the
“Special Meeting Request”) shall be delivered to the secretary. In addition, the
Special Meeting Request (a) shall set forth the purpose of the meeting and the
matters proposed to be acted on at it (which shall be limited to those lawful
matters set forth in the Record Date Request Notice received by the secretary),
(b) shall bear the date of signature of each such stockholder (or such agent)
signing the Special Meeting Request, (c) shall set forth the name and address,
as they appear in the Corporation’s books, of each stockholder signing such
request (or on whose behalf the Special Meeting Request is signed), the class,
series and number of all shares of stock of the Corporation which are owned by
each such stockholder, and the nominee holder for, and number of, shares owned
by such stockholder beneficially but not of record, (d) shall be sent to the
secretary by registered mail, return receipt requested, and (e) shall be
received by the secretary within 60 days after the Request Record Date. Any
requesting stockholder (or agent duly authorized in a writing accompanying the
revocation or the Special Meeting Request) may revoke his, her or its request
for a special meeting at any time by written revocation delivered to the
secretary.
(3) The
secretary shall inform the requesting stockholders of the reasonably estimated
cost of preparing and mailing the notice of meeting (including the Corporation’s
proxy materials). The secretary shall not be required to call a special meeting
upon stockholder request and such meeting shall not be held unless, in addition
to the documents required by paragraph (2) of this Section 3(b), the secretary
receives payment of such reasonably estimated cost prior to the preparation and
mailing of any notice of the meeting.
(4) Except
as provided in the next sentence, any special meeting shall be held at such
place, date and time as may be designated by the chairman of the board, chief
executive officer, president or Board of Directors, whoever has called the
meeting. In the case of any special meeting called by the secretary upon the
request of stockholders (a
“Stockholder
Requested Meeting”), such meeting shall be held at such place, date and time as
may be designated by the Board of Directors; provided, however,
that the date of any Stockholder Requested Meeting shall be not more than 90
days after the record date for such meeting (the “Meeting Record Date”); and
provided further
that if the Board of Directors fails to designate, within ten days after
the date that a valid Special Meeting Request is actually received by the
secretary (the “Delivery Date”), a date and time for a Stockholder Requested
Meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th day
after the Meeting Record Date or, if such 90th day is
not a Business Day (as defined below), on the first preceding Business Day; and
provided further
that in the event that the Board of Directors fails to designate a place
for a Stockholder Requested Meeting within ten days after the Delivery Date,
then such meeting shall be held at the principal executive office of the
Corporation. In fixing a date for any special meeting, the chairman of the
board, chief executive officer, president or Board of Directors may consider
such factors as he, she or it deems relevant within the good faith exercise of
business judgment, including, without limitation, the nature of the matters to
be considered, the facts and circumstances surrounding any request for the
meeting and any plan of the Board of Directors to call an annual meeting or a
special meeting. In the case of any Stockholder Requested Meeting, if the Board
of Directors fails to fix a Meeting Record Date that is a date within 30 days
after the Delivery Date, then the close of business on the 30th day
after the Delivery Date shall be the Meeting Record Date. The Board of Directors
may revoke the notice for any Stockholder Requested Meeting in the event that
the requesting stockholders fail to comply with the provisions of paragraph (3)
of this Section 3(b).
(5) If
written revocations of the Special Meeting Request have been delivered to the
secretary and the result is that stockholders of record (or their agents duly
authorized in writing), as of the Request Record Date, entitled to cast less
than the Special Meeting Percentage have delivered, and not revoked, requests
for a special meeting to the secretary, the secretary shall: (i) if the notice
of meeting has not already been mailed, refrain from mailing the notice of the
meeting and send to all requesting stockholders who have not revoked such
requests written notice of any revocation of a request for the special meeting,
or (ii) if the notice of meeting has been mailed and if the secretary first
sends to all requesting stockholders who have not revoked requests for a special
meeting written notice of any revocation of a request for the special meeting
and written notice of the secretary’s intention to revoke the notice of the
meeting, revoke the notice of the meeting at any time before ten days before the
commencement of the meeting. Any request for a special meeting received after a
revocation by the secretary of a notice of a meeting shall be considered a
request for a new special meeting.
(6) The
chairman of the board, chief executive officer, president or Board of Directors
may appoint regionally or nationally recognized independent inspectors of
elections to act as the agent of the Corporation for the purpose of promptly
performing a ministerial review of the validity of any purported Special Meeting
Request received by the secretary. For the purpose of permitting the inspectors
to perform such review, no such purported request shall be deemed to have been
delivered to the secretary until the earlier of (i) five Business Days after
receipt by the secretary of such purported request and (ii) such date as
the independent inspectors certify to the Corporation that the valid requests
received by the secretary represent, as of the Request Record Date, stockholders
of record entitled to cast not less than a majority of the votes that would be
entitled to be cast at such
meeting.
Nothing contained in this paragraph (6) shall in any way be construed to suggest
or imply that the Corporation or any stockholder shall not be entitled to
contest the validity of any request, whether during or after such five Business
Day period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
(7) For
purposes of these Bylaws, “Business Day” shall mean any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
Section
4. NOTICE. 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. Failure to give notice of any meeting to one or more
stockholders, or any irregularity in such notice, shall not affect the validity
of any meeting fixed in accordance with this Article II, or the validity of any
proceedings at any such meeting.
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. The
Corporation may postpone or cancel a meeting of stockholders by making a “public
announcement” (as defined in Section 11(c)(3)) of such postponement or
cancellation prior to the meeting.
Section
5. ORGANIZATION AND
CONDUCT. Every meeting of stockholders shall be conducted by an
individual appointed by the Board of Directors 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, an individual appointed by the Board of Directors or, in the
absence of such appointment, an individual 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 of Directors 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; (h) concluding a meeting or
recessing or adjourning the meeting (whether or not a quorum is present) to a
later date and time and at a place announced at the meeting; and (i) complying
with any state and local laws and regulations concerning safety and security.
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. The presence
in person or by proxy of the holders of shares of stock of the Corporation
entitled to cast a majority of the votes entitled to be cast (without regard to
class) shall constitute a quorum at any meeting of the stockholders, except with
respect to any such matter that, under applicable statutes or regulatory
requirements, requires approval by a separate vote of one or more classes of
stock, in which case the presence in person or by proxy of the holders of shares
entitled to cast a majority of the votes entitled to be cast by each such class
on such matter shall constitute a quorum. This section shall not affect any
requirement under any statute or the charter of the Corporation (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.
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. Directors
shall be elected by the affirmative vote of the holders of a majority of the
shares of stock outstanding and entitled to vote thereon. 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,
including, without limitation, the Investment Company Act of 1940, as amended,
and the rules promulgated thereunder (the “Investment Company Act”), 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 holder of 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 in his or her capacity 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
of Directors 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 of Directors
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
of Directors or the chair of the meeting may appoint, before or at the meeting,
one or more inspectors for the meeting and any successor thereto. The
inspectors, if any, shall (i) determine the number of shares of stock
represented at the meeting, in person or by proxy and the validity and effect of
proxies, (ii) receive and tabulate all votes, ballots or consents, (iii) report
such tabulation to the chair of the meeting, (iv) hear and determine all
challenges and questions arising in connection with the right to vote, and (v)
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
prima facie 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 of Directors 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 of Directors 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 Time, on the 120th day
prior to the first anniversary of the date of the proxy statement 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
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, (D) whether such
stockholder believes any such individual is, or is not, an “interested person”
of the Corporation as defined in the Investment Company Act or is, or is not,
“independent” as set forth in the requirements established by the NASDAQ
National Market or any other exchange or automated quotation service on which
the Corporation’s securities are listed, and information regarding such
individual that is sufficient, in the discretion of the Board of Directors or
any authorized officer of the Corporation, to make either such determination and
(E) 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 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 Associated Person therefrom and all other
information relating to such proposal that is required pursuant to Regulation
14A (or any successor provision) under the Exchange Act and the rules
thereunder; (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 of Directors 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 the proxy statement for 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
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 of Directors 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 of Directors, (iii) provided that the
Board of Directors 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 or (iv) provided that such special meeting has been
called for the purpose of electing directors when no directors remain in office,
by any stockholder of the Corporation who is entitled to vote at the meeting. In
the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more individuals to the Board of Directors, any such
stockholder may nominate an individual or individuals (as the case may be) for
election as a director 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 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 of Directors 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) If
information submitted pursuant to this Section 11 by any stockholder proposing a
nominee for election as a director or any proposal for other business at a
meeting of stockholders shall be inaccurate to a material extent, such
information may be deemed not to have been provided in accordance with this
Section 11. Upon written request by the Secretary or the Board of
Directors, 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 other period as may be
specified in such request), (A) written verification, satisfactory, in the
discretion of the Board of Directors or any authorized officer of the
Corporation, to demonstrate the accuracy of any information submitted by the
stockholder pursuant to this Section 11, and (B) a written update of any
information submitted by the stockholder pursuant to this Section 11 as of an
earlier date. If a stockholder fails to provide such written
verification or written update within such period, the information as to which
written verification or a written update 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) “Public
announcement” shall mean disclosure (i) in a press release reported by the Dow
Jones News Service, Associated Press, Business Wire, PR Newswire or other widely
circulated news or wire 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 of Directors.
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 of Directors may establish,
increase or decrease the number of directors, provided that the number thereof
shall never be less than three, nor more than eleven, 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 of Directors shall be held
immediately after and at the same place as the annual meeting of stockholders,
no notice other 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 of Directors. The Board of Directors may provide, by resolution, the time
and place for the holding of regular meetings of the Board of Directors without
other notice than such resolution.
Section
4. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by or at the request of
the chairman of the board, 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 of Directors may fix any place as the place
for holding any special meeting of the Board of Directors called by them. The
Board of Directors may provide, by resolution, the time and place for the
holding of special meetings of the Board of Directors without other notice than
such resolution.
Section
5. NOTICE. Notice of any
special meeting of the Board of Directors 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 of Directors
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 of Directors, 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 or other percentage 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 of Directors, unless the concurrence of a
greater proportion is required for such action by applicable law, the Charter or
these Bylaws. 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 of Directors, unless the concurrence of a greater
proportion is required for such action by applicable law, the Charter or these
Bylaws.
Section
8. CHAIRMAN OF THE
BOARD. The Board of Directors may designate a chairman of the board
and/or a vice chairman of the board. The chairman of the board or vice chairman
of the board, as applicable, shall preside over the meetings of the Board of
Directors and of the stockholders at which he or she shall be present. The
chairman of the board or vice chairman of the board shall perform such other
duties as may be assigned to him or her by the Board of Directors. Neither the
Chairman of the Board nor any Vice Chairman of the Board shall be deemed to be
officers of the Company.
Section
9. ORGANIZATION. At each
meeting of the Board of Directors, the chairman of the board or, in the absence
of the chairman, 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
10. 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; provided however, this Section 10 does not
apply to any action of the directors pursuant to any provision of the Investment
Company Act applicable to the Corporation that requires the vote of the
directors to be cast in person at a meeting. Participation in a meeting by these
means shall constitute presence in person at the meeting.
Section
11. CONSENT BY DIRECTORS WITHOUT
A MEETING. Any action required or permitted to be taken at any meeting of
the Board of Directors 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 of Directors; provided
however, this Section 11 does not apply to any action of the directors pursuant
to any provision of the Investment Company Act applicable to the Corporation
that requires the vote of the directors to be cast in person at a
meeting.
Section
12. 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). Until such time
as the Corporation becomes subject to Section 3-804(c) of the MGCL, any vacancy
on the Board of Directors for any cause other than an increase in the number of
directors shall be filled by a majority of the remaining directors, even if such
majority is less than a quorum; any vacancy in the number of directors created
by an increase in the number of directors may be filled by a majority vote of
the entire Board of Directors; and any individual so elected as director shall
serve until the next annual meeting of stockholders and until his or her
successor is elected and qualifies. At such time as the Corporation becomes
subject to Section 3-804(c) of the MGCL, subject to applicable requirements of
the Investment Company Act and except as may be provided by the Board of
Directors in setting the terms of any class or series of stock, any vacancy on
the Board of Directors may be filled only by a majority of the remaining
directors, even if the remaining directors do not constitute a quorum, and any
director elected to fill a vacancy shall serve for the remainder of the full
term of the class in which the vacancy occurred and until a successor is elected
and qualifies.
Section
13. COMPENSATION.
Directors shall not receive any stated salary for their services as directors
but, by resolution of the Board of Directors, may receive compensation per year
and/or per meeting of the Board of Directors or of any committee of the Board of
Directors 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 of Directors 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
14. 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
15. 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
16. RELIANCE. Each
director and officer of the Corporation shall, in the performance of his or her
duties with respect to the Corporation, be entitled to rely on any information,
opinion, report or statement, including any financial statement or other
financial data, prepared or presented by an officer or employee of the
Corporation whom the director or officer reasonably believes to be reliable and
competent in the matters presented, by a lawyer, certified public accountant or
other person, as to a matter which the director or officer reasonably believes
to be within the person’s professional or expert competence, or, with respect to
a director, by a committee of the Board of Directors on which the director does
not serve, as to a matter within its designated authority, if the director
reasonably believes the committee to merit confidence.
Section 17. RATIFICATION. The Board of
Directors or the stockholders may ratify and make binding on the Corporation any
action or inaction by the Corporation or its officers to the extent that the
Board of Directors or the stockholders could have originally authorized the
matter. Moreover, any action or inaction questioned in any
stockholders’ derivative proceeding or any other proceeding on the ground of
lack of authority, defective or irregular execution, adverse interest of a
director, officer or stockholder, non-disclosure, miscomputation, the
application of improper principles or practices of accounting, or otherwise, may
be ratified, before or after judgment, by the Board of Directors or by the
stockholders, and if so ratified, shall have the same force and effect as if the
questioned action or inaction had been originally duly authorized, and such
ratification shall be binding upon the Corporation and its stockholders and
shall constitute a bar to any claim or execution of any judgment in respect of
such questioned action or inaction.
Section
18 . EMERGENCY
PROVISIONS. Notwithstanding any other provision in the Charter
or these Bylaws, this Section 18 shall apply during the existence of any
catastrophe, or other similar emergency condition, as a result of which a quorum
of the Board of Directors under Article III of these Bylaws cannot readily be
obtained (an “Emergency”). During any Emergency, unless otherwise
provided by the Board of Directors: (i) a meeting of the Board of Directors
or a committee thereof may be called by any director or officer by any means
feasible under the circumstances; (ii) notice of any meeting of the Board of
Directors during such an Emergency may be given less than 24 hours prior to the
meeting to as many directors and by such means as it may be feasible at the
time, including publication, television or radio; and (iii) the number of
directors necessary to constitute a quorum shall be one-third of the entire
Board of Directors.
ARTICLE
IV
COMMITTEES
Section
1. NUMBER, TENURE AND
QUALIFICATIONS. The Board of Directors may appoint from among its members
an Audit Committee, a Nominating Committee and other committees, composed of one
or more directors, to serve at the pleasure of the Board of
Directors.
Section
2. POWERS. The Board of
Directors may delegate to committees appointed under Section 1 of this Article
any of the powers of the Board of Directors, 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 of Directors. 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 of Directors 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 of 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; provided,
however, this Section 4 does not apply to any action of the committee pursuant
to any provision of the Investment Company Act applicable to the Corporation
that requires the vote of the committee to be cast in person at the meeting.
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 of Directors 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 of Directors shall have the power at any time
to change the membership of any committee, to fill all vacancies, to designate
alternate members to replace any absent or disqualified member or to dissolve
any such committee. Subject to the power of the Board of Directors, the members
of the committee shall have the power to fill any vacancies on the
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 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 of Directors may from time to time elect such other officers with such
powers and duties as they shall deem necessary or desirable. The Board of
Directors may designate a chairman of the board and a vice chairman of the
board, who shall not be officers of the Corporation but shall have such powers
and duties as determined by the Board of Directors from time to time. The
officers of the Corporation shall be elected annually by the Board of Directors,
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 of Directors 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 of Directors, the chairman of the board, 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 of Directors for the balance of the
term.
Section
4. CHIEF EXECUTIVE
OFFICER. The Board of Directors may designate a chief executive officer.
The chief executive officer shall have general responsibility for implementation
of the policies of the Corporation, as determined by the Board of Directors, 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 of
Directors 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 of Directors from time to
time.
Section
5. CHIEF OPERATING
OFFICER. The Board of Directors may designate a chief operating officer.
The chief operating officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer.
Section
6. CHIEF FINANCIAL
OFFICER. The Board of Directors may designate a chief financial officer.
The chief financial officer shall have the responsibilities and duties as set
forth by the Board of Directors or the chief executive officer.
Section
7. 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 of Directors, 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 of Directors 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 of Directors from time to time.
Section
8. 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 of Directors. The Board of Directors may designate one
or more vice presidents as executive vice president, senior vice president, or
as vice president for particular areas of responsibility.
Section
9. SECRETARY. The
secretary shall (a) keep the minutes of the proceedings of the stockholders, the
Board of Directors and committees of the Board of Directors 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 by the chief executive officer, the
president or by the Board of Directors.
Section
10. 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 of Directors. In the absence of a designation of
a chief financial officer by the Board of Directors, 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 of Directors, taking proper vouchers for such disbursements, and shall
render to the president and Board of Directors, at the regular meetings of the
Board of Directors 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 of Directors, the treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of 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
11. ASSISTANT SECRETARIES AND
ASSISTANT TREASURERS. 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 of
Directors. The assistant treasurers shall, if required by the Board of
Directors, 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 of
Directors.
ARTICLE
VI
CONTRACTS,
LOANS, CHECKS AND DEPOSITS
Section
1. CONTRACTS. The Board
of Directors or any manager of the Company approved by the Board of
Directors and acting within the scope of its authority pursuant
to a management agreement with the Company 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 executed by an authorized person and duly authorized or
ratified by action of the Board of Directors or a manager acting
within the scope of its authority pursuant
to a management agreement.
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 of Directors.
Section
3. DEPOSITS. All funds
of the Corporation not otherwise employed shall be deposited or invested from
time to time to the credit of the Corporation as the Board of Directors, the
chief executive officer, the chief financial officer, or any other officer
designated by the Board of Directors may determine.
ARTICLE
VII
STOCK
Section
1. CERTIFICATES; REQUIRED
INFORMATION. The Corporation may issue some or all of the shares of any
or all of the Corporation’s classes or series of stock without certificates if
authorized by the Board of Directors. 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. In the event that the Corporation issues shares of stock
without
certificates, to the extent then required by the MGCL, the Corporation shall
provide to the record holders of such shares a written statement of the
information required by the MGCL to be included on stock
certificates. There shall be no differences in the rights and
obligations of stockholders based on whether or not their shares are evidenced
by certificates. If a class or series of stock is authorized by the
Board of Directors to be issued without certificates, no stockholder shall be
entitled to a certificate or certificates representing any shares of such class
or series of stock held by such stockholder unless otherwise determined by the
Board of Directors and then only upon written request by such stockholder to the
secretary of the Corporation.
Section
2. TRANSFERS WHEN CERTIFICATES
ISSUED. All transfers of shares of stock shall be made on the books of
the Corporation, by the holder of the shares, in person or by his or her
attorney, in such manner as the Board of Directors or any officer of the
Corporation may prescribe and, if such shares are certificated, upon surrender
of certificates duly endorsed. The issuance of a new certificate upon
the transfer of certificated shares is subject to the determination of the Board
of Directors that such shares shall no longer be evidenced by
certificates. Upon the transfer of uncertificated shares, to the
extent then required by the MGCL, the Corporation shall provide to record
holders of such shares a written statement of the information required by the
MGCL to be included on stock certificates.
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 or series 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 of the Corporation may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, destroyed,
stolen or mutilated, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, destroyed, stolen or mutilated; provided,
however, if such shares have ceased to be certificated, no new certificate shall
be issued unless requested in writing by such stockholder and the Board of
Directors has determined such certificates may be issued. Unless
otherwise determined by an officer of the Corporation, the owner of such lost,
destroyed, stolen or mutilated certificate or certificates, or his or her legal
representative, shall be required, as a condition precedent to the issuance of a
new certificate or certificates, to give the Corporation a bond in such sums as
it may direct as indemnity against any claim that may be made against the
Corporation.
Section
4. FIXING OF RECORD
DATE. The Board of Directors 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.
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 or postponement thereof, except when the meeting is adjourned or
postponed to a date more than 120 days after the record date fixed for the
original meeting, in 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 of Directors 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 of Directors 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 of Directors 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
of Directors shall have the power, from time to time, to fix the fiscal year of
the Corporation by a duly adopted resolution.
ARTICLE
IX
DISTRIBUTIONS
Section
1. AUTHORIZATION.
Dividends and other distributions upon the stock of the Corporation may be
authorized by the Board of Directors, 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 of Directors 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 of Directors
shall determine to be in the best interest of the Corporation, and the Board of
Directors may modify or abolish any such reserve.
ARTICLE
X
SEAL
Section
1. SEAL. The Board of
Directors 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 of Directors 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
XI
INDEMNIFICATION
AND ADVANCE OF EXPENSES
To the
maximum extent permitted by Maryland law and the Investment Company Act, in
effect from time to time, the Corporation shall indemnify and, without requiring
a preliminary determination of the ultimate entitlement to indemnification,
shall 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 and who is made or threatened to be made a party to the
proceeding by reason of his or her service in that capacity or (b) any
individual who, while a director or officer of the Corporation and at the
request of the Corporation, serves or has served as a director, officer, partner
or trustee of such corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made or
threatened to be made a party to the proceeding by reason of his or her service
in that capacity. The Corporation may, with the approval of its Board of
Directors or any duly authorized committee thereof, provide such indemnification
and advance for expenses to a person who served a predecessor of the Corporation
in any of the capacities described in (a) or (b) above and to any employee or
agent of the Corporation or a predecessor of the Corporation. The
indemnification and payment of expenses provided in these Bylaws shall not be
deemed exclusive of or limit in any way other rights to which any person seeking
indemnification or payment of expenses may be or may become entitled under any
bylaw, regulation, insurance, agreement or otherwise.
Neither
the amendment nor repeal of this Article, nor the adoption or amendment of any
other provision of these Bylaws or the Charter inconsistent with this Article,
shall apply to or affect in any respect the applicability of the preceding
paragraph with respect to any act or failure to act which occurred prior to such
amendment, repeal or adoption.
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.
ARTICLE
XIII
INSPECTION
OF RECORDS
A
stockholder that is otherwise eligible under applicable law to inspect the
Corporation’s books of account, stock ledger, or other specified documents of
the Corporation shall have no right to make such inspection if the Board of
Directors determines that such stockholder has an improper purpose for
requesting such inspection.
ARTICLE
XIV
INVESTMENT
COMPANY ACT
If and to
the extent that any provision of the MGCL, including, without limitation,
Subtitle 6 and, if then applicable, Subtitle 7 of Title 3 of the MGCL, or any
provision of the Charter or these Bylaws conflicts with any provision of the
Investment Company Act applicable to the Corporation, the applicable provision
of the Investment Company Act shall control.
ARTICLE
XV
AMENDMENT
OF BYLAWS
The Board
of Directors shall have the exclusive power to adopt, alter or repeal any
provision of these Bylaws and to make new Bylaws.
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