TORTOISE
CAPITAL RESOURCES CORPORATION
AMENDED
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, or such other date thereafter
in the
same calendar year, as the Board of Directors may deem
appropriate.
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, 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).
(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 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.
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 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 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 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 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 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.
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 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 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.
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 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 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 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.
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, 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.
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.