Exhibit b
TORTOISE CAPITAL RESOURCES CORPORATION
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. Commencing with the 2006 annual meeting of stockholders of the
Corporation, 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 during the month of April in each year set by the Board of Directors.
Section 3. SPECIAL MEETINGS.
(a) General. The chairman of the board, the president, the chief executive officer or the
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
(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) and 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 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, the president, the chief executive
officer or the 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,
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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, the president, the chief executive officer or the
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 requests for the special meeting 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, the chief executive officer, the president or the Board of
Directors may appoint 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 at least the Special Meeting Percentage.
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).
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(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 Kansas 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.
Subject to Section 11(a) of this Article II, any business of the Corporation may be transacted
at an annual meeting of stockholders without being specifically designated in the notice, except
such business as is required by any statute to be stated in such notice. No business shall be
transacted at a special meeting of stockholders except as specifically designated in the notice.
Section 5. ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted by an
individual appointed by the Board 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 any, the president, the vice presidents
in their order of rank and seniority, the secretary, the treasurer 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
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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) recessing or adjourning the meeting to a later date and
time and place announced at the meeting; and (i) concluding the meeting. Unless otherwise
determined by the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
Section 6. QUORUM. 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 or the charter
of the Corporation (the “Charter”), 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 a
matter shall constitute a quorum.
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. A plurality of all the votes cast at a meeting of stockholders duly
called and at which a quorum is present shall be sufficient to elect a director. Each share
may be voted for as many individuals as there are directors to be elected and for whose
election the share is entitled to be voted. A majority of the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to approve any
other matter which may properly come before the meeting, unless more than a majority of the
votes cast is required by statute or by the Charter. Unless otherwise provided in the
charter, each outstanding share, regardless of class, shall be entitled to one vote on each
matter submitted to a vote at a meeting of stockholders. Voting on any question or in any
election may be viva voce unless the chairman of the meeting shall order that voting be by
ballot.
Section 8. PROXIES. A stockholder may cast the votes entitled to be cast by the shares of
stock owned of record by the stockholder in person or by proxy executed by the stockholder
or by the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or
evidence of authorization of such proxy shall be filed with the secretary of the Corporation
before or at the meeting. No proxy shall be valid more than eleven months after its date
unless otherwise provided in the proxy.
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Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in the
name of a corporation, partnership, trust or other entity, if entitled to be voted, may be
voted by the president or a vice president, a general partner or trustee thereof, as the
case may be, or a proxy appointed by any of the foregoing individuals, unless some other
person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners of a
partnership presents a certified copy of such bylaw, resolution or agreement, in which case
such person may vote such stock. Any director or other fiduciary may vote stock registered
in his or her name as such fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at
any meeting and shall not be counted in determining the total number of outstanding shares entitled
to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case
they may be voted and shall be counted in determining the total number of outstanding shares at any
given time.
The Board 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, in advance of any meeting, may, but need
not, appoint one or more individual inspectors or one or more entities that designate
individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector
or inspectors are not appointed, the person presiding at the meeting may, but need not,
appoint one or more inspectors. In case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by appointment made by the Board of
Directors in advance of the meeting or at the meeting by the chairman of the meeting. The
inspectors, if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, and determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. Each such report shall be
in writing and signed by him or her or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one inspector, the report of a
majority shall be the report of the inspectors. The report of the inspector or
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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 prior to the first anniversary of the date of mailing of the notice for the preceding
year’s annual meeting nor later than 5:00 p.m., Central Time, on the 120th day prior to the first
anniversary of the date of mailing of the notice for the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced or delayed by more than
30 days from the first anniversary of the date of the preceding year’s annual meeting (and in the
case of the first annual meeting of stockholders), 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., Central 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 of 1940, as amended, and the rules promulgated thereunder (the “1940 Act”)
and information regarding such individual that is sufficient, in the discretion of the Board of
Directors or any committee thereof or any authorized officer of the Corporation, to make such
determination, (E) sufficient information, with appropriate verification of the accuracy thereof,
to enable the Nominating Committee of the Board of Directors, or in the absence thereof, the entire
Board of Directors, to make the determination as to the individual’s qualifications required under
Article III, Section 2(b) of these Bylaws and (F) 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
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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; (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 that the number of directors to be elected to the Board of Directors is increased and there
is no public announcement of such action at least 130 days prior to the first anniversary of the
date of mailing of the notice 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., Central 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 or (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. 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
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director as specified in the Corporation’s notice of meeting, if the stockholder’s notice
required by paragraph (2) of this Section 11(a) shall be delivered to the secretary at the
principal executive office of the Corporation not earlier than the 150th day prior to such special
meeting and not later than 5:00 p.m., Central 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) Upon written request by the secretary or the Board of Directors or any
committee thereof, any stockholder proposing a nominee for election as a director or any proposal
for other business at a meeting of stockholders shall provide, within five Business Days of
delivery of such request (or such other period as may be specified in such request), written
verification, satisfactory, in the discretion of the Board of Directors or any committee thereof or
any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted
by the stockholder pursuant to this Section 11. If a stockholder fails to provide such written
verification within such period, the information as to which written verification was requested may
be deemed not to have been provided in accordance with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11 shall be
eligible for election by stockholders as directors, and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the meeting in accordance with this
Section 11. The chairman of the meeting shall have the power to determine whether a nomination or
any other business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with this Section 11.
(3) For purposes of this Section 11, (a) the “date of mailing of the notice” shall mean the
date of the proxy statement for the solicitation of proxies for election of directors and (b)
“public announcement” shall mean disclosure (i) in a press release reported by the Dow Jones News
Service, Associated Press, Business Wire, PR Newswire or comparable news service or (ii) in a
document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to
the Exchange Act or the 1940 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
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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 to 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.
(a) Number and Tenure. 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 the minimum number required
by the MGCL, nor more than 9, and further provided that the tenure of office of a director shall
not be affected by any decrease in the number of directors.
(b) Qualifications. To qualify as a nominee for a directorship, an individual, at the time of
nomination, (i)(A) shall be at least 21 years of age and have substantial expertise, experience or
relationships relevant to the business of the Corporation, and (B) shall have a master’s degree in
economics, finance, business administration or accounting, a graduate professional degree in law
from an accredited university or college in the United States or the equivalent degree from an
equivalent institution of higher learning in another country, or a certification as a public
accountant in the United States, or be deemed an “audit committee financial expert” as such term is
defined in Item 401 of Regulation S-K (or any successor provision) promulgated by the Securities
and Exchange Commission or (ii) shall be a current director of the Corporation. The Nominating
Committee of the Board of Directors, or in the absence thereof, the entire Board of Directors, in
its sole discretion, shall determine whether an individual satisfies the foregoing qualifications.
Any individual who does not satisfy the qualifications set forth under this subsection (b) shall
not be eligible for nomination or election as a director.
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 notice other 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
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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 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.
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Section 8. 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 of the meeting, shall act as
secretary of the meeting.
Section 9. TELEPHONE MEETINGS. Directors may participate in a meeting by means of a
conference telephone or similar communications equipment if all persons participating in the
meeting can hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 10. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting, if a consent
to such action is given in writing or by electronic transmission by each director and is
filed with the minutes of proceedings of the Board of Directors.
Section 11. VACANCIES. If for any reason any or all the directors cease to be directors,
such event shall not terminate the Corporation or affect these Bylaws or the powers of the
remaining directors hereunder. Prior to the effectiveness of the Corporation’s election in
Article V of the Charter, any vacancy on the Board of Directors may be filled in the manner
otherwise permitted by the MGCL. Upon the effectiveness of the Corporation’s election in
Article V of the Charter, except as may be provided by the Board of Directors in setting the
terms of any class or series of preferred stock, (a) 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 (b) 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 12. RESIGNATIONS. Any director may resign from the Board of Directors or any
committee thereof at any time by giving written notice of his or her resignation to the
Board of Directors. Any resignation shall take effect immediately upon its receipt or at
such later time specified in the notice of resignation.
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 and/or per visit to real property or other facilities owned or leased by
the Corporation and for any service or activity they performed or engaged in as directors.
Directors may be reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Board 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
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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, officer, employee and agent of the Corporation shall,
in the performance of his or her duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good faith upon the
books of account or other records of the Corporation, upon an opinion of counsel or upon
reports made to the Corporation by any of its officers or employees or by the adviser,
accountants, appraisers or other experts or consultants selected by the Board of Directors
or officers of the Corporation, regardless of whether such counsel or expert may also be a
director.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint from among
its members an Executive Committee, 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 similar communications
equipment if all persons participating in the meeting can hear each other
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at the same time. Participation in a meeting by these means shall constitute presence in
person at the meeting.
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of a committee of the Board of Directors may be taken without a
meeting, if a consent to such action is given in writing or by electronic transmission 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 a committee
shall have the power to fill any vacancies on such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a president, a
secretary and a treasurer and may include a chief executive officer, one or more vice
presidents, a chief operating officer, a chief financial officer, a chief compliance
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, solely by
reason of such designation, 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 duly elected and qualifies or until his or her death,
or his or her resignation, or removal in the manner provided herein. 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.
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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 in the name of the Corporation, 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. CHIEF COMPLIANCE OFFICER. The Board of Directors may designate a chief
compliance officer. The chief compliance officer shall have the responsibilities and duties
as may be assigned to him or her by the Board of Directors or the chief executive officer.
Section 8. PRESIDENT. In the absence of a designation of a chief executive officer by the
Board of Directors, the president shall be the chief executive officer and 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 may execute any deed, mortgage, bond, contract or other
instrument in the name of the Corporation, 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 9. VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in
such office, the vice president (or in the event there be more than one vice president, the
vice presidents in the order designated at the time of their election or, in the absence of
any designation, then in the order of their election) shall perform the duties of the
president and when so acting shall have all the powers of and be subject to all the
restrictions upon the president; and shall perform such other duties as from time to time
may be assigned to such vice president by the chief executive officer, the president or by
the Board of Directors. The Board of Directors may designate one or more vice
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presidents as executive vice president, senior vice president, or as vice president for
particular areas of responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the
stockholders, the Board 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 11. TREASURER. The treasurer 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 Board of
Directors, the chief executive officer and the president 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 12. 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 chief executive officer, 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, the Executive Committee or another committee
of the Board of Directors within the scope of its delegated authority
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may authorize any officer or agent to enter into any contract or to execute and deliver any
instrument in the name of and on behalf of the Corporation and such authority may be general
or confined to specific instances. Any agreement, deed, mortgage, lease or other document
shall be valid and binding upon the Corporation when duly authorized or ratified by action
of the Board of Directors or the Executive Committee or such other committee and executed by
an authorized person.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or agent of the Corporation in such manner as shall from time to time
be determined by the Board of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES; REQUIRED INFORMATION. Except as may be otherwise provided by the
Board of Directors, stockholders of the Corporation are not entitled to certificates
representing the shares of stock held by them. In the event that the Corporation issues
shares of stock represented by certificates, such certificates shall be signed by the
officers of the Corporation in the manner permitted by the MGCL and contain the statements
and information required by the MGCL. In the event that the Corporation issues shares of
stock without certificates, 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.
Section 2. TRANSFERS WHEN CERTIFICATES ARE ISSUED. Upon surrender to the Corporation or the
transfer agent of the Corporation of a stock certificate duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the Corporation shall
issue a new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock will be subject in
all respects to the Charter and all of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. The president, the secretary or the treasurer or any
officer designated by the Board of Directors may direct a new certificate to be issued in
place of any certificate previously issued by the Corporation alleged to
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have been lost, stolen or destroyed upon the making of an affidavit of that fact by the
person claiming the certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, an officer designated by the Board of Directors may, in his
or her discretion and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate or the owner’s legal representative to advertise
the same in such manner as he or she shall require and/or to give bond, with sufficient
surety, to the Corporation to indemnify it against any loss or claim which may arise as a
result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR 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.
In lieu of fixing a record date, the Board of Directors may provide that the stock transfer
books shall be closed for a stated period but not longer than 20 days. If the stock transfer books
are closed for the purpose of determining stockholders entitled to notice of or to vote at a
meeting of stockholders, such books shall be closed for at least ten days before the date of such
meeting.
If no record date is fixed and the stock transfer books are not closed for the determination
of stockholders, (a) the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the day on which the
notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of stockholders entitled to receive payment
of a dividend or an allotment of any other rights shall be the close of business on the day on
which the resolution of the directors, declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of stockholders has been
made as provided in this section, such determination shall apply to any adjournment thereof, except
when (i) the determination has been made through the closing of the transfer books and the stated
period of closing has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new record date shall be
determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at the
office of its counsel, accountants or transfer agent, an original or duplicate share ledger
containing the name and address of each stockholder and the number of shares of each class
held by such stockholder.
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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.
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ARTICLE XI
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law, 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 any such 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 any such 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. Any indemnification or advance of expenses made pursuant to
this Article shall be subject to applicable requirements of the 1940 Act (if the Corporation has
elected to be regulated as a business development company). 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 the Bylaws or charter of the Corporation 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.
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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
1940 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 1940 Act then applicable to the Corporation, such
provision of the 1940 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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