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Bylaws |
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2006 |
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61KB total |
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$42 |
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#1001066 |
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Fifth Amended and Restated
BYLAWS
of
GOLF TRUST OF AMERICA, INC.
(As amended through March 8, 2006)
TABLE OF CONTENTS
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ii
Section 1. Principal Office. The principal office of Golf Trust of America, Inc. (the ?Corporation?) shall be located at 190 King Street, Charleston, South Carolina 29401 or at any other place or places as the Board of Directors may designate.
Section 2. Additional Offices. The Corporation may have additional offices at such places as the Board of Directors may from time to time determine or the business of the Corporation may require.
Section 3. Fiscal and Taxable Years. The fiscal and taxable years of the Corporation shall begin on January 1 and end on December 31.
For purposes of these Bylaws, the following words shall have the meanings set forth below:
(a) ?Affiliate? of a person shall mean (i) any person that, directly or indirectly, controls or is controlled by or is under common control with such person (ii) any other person that owns, beneficially, directly or indirectly, five percent (5%) or more of the outstanding capital shares, shares or equity interests of such person, or (iii) any officer, director, employee, partner or trustee of such person or any person controlling, controlled by or under common control with such person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such person). The term ?person? means and includes individuals, corporations, general and limited partnerships, stock companies, land trusts, business trusts, or other entities and governments and agencies and political subdivisions thereof. For the purposes of this definition, ?control? (including the correlative meanings of the terms ?controlled by? and ?under common control with?), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, through the ownership of voting securities, partnership interests or other equity interests.
(b) ?Independent Director? shall mean a Director of the Corporation who is not an officer or employee of the Corporation or an Affiliate of (i) any lessee of or management company operating any of the properties owned by the Corporation or any Affiliate of the Corporation, (ii) any subsidiary of the Corporation or (iii) any partnership which is an Affiliate of the Corporation.
ARTICLE III
Meetings of Shareholders
Section 1. Place. All meetings of shareholders shall be held at 190 King Street, Charleston, South Carolina, or at such other place within the United States as shall be stated in the notice of the meeting.
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(a) Date and Time. The Board of Directors may fix any day and time during the month of November 2006 for the 2006 annual meeting of shareholders and any day and time during the month of May for all subsequent annual meetings, in each case for the election of Directors and the transaction of any business as may be properly brought before the meeting, but if no such day and time is fixed by the Board of Directors, the annual meeting for 2006 shall be held on November 17, 2006 and the meeting for each subsequent calendar year shall be held on the fourth Thursday in May, if that day is not a legal holiday. If that day is a legal holiday, the annual meeting shall be held on the next succeeding business day that is not a legal holiday.
(b) Postponement. The Board of Directors, acting by resolution, may postpone and reschedule any previously scheduled annual meeting of shareholders; provided however that notice of the postponement of any properly-noticed annual meeting must be given, by any means specified in Section 4 below, not less than ten (10) days prior to the previously scheduled meeting date.
(c) Effect of Failure to Hold Annual Meeting. Failure to hold an annual meeting shall not invalidate the Corporation?s existence or affect any otherwise valid corporate acts.
(d) Transaction of Business. Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the shareholders may be made at an annual meeting of shareholders (i) pursuant to the Corporation?s notice of meeting, (ii) by or at the direction of the Board of Directors or (iii) by any shareholder of the Corporation who was a shareholder of record at the time of giving of notice provided for herein, who is entitled to vote at the meeting and who complied with the notice procedures set forth herein.
(e) Advance Notice Requirements. For nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to clause (iii) of the foregoing paragraph, the shareholder must have given timely notice thereof in writing delivered to the Secretary of the Corporation by personal delivery or by first-class United States mail, postage prepaid. To be timely, a shareholder?s notice shall be delivered to the Secretary at the principal executive offices of the Company not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year?s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the 120th day prior to the actual annual meeting date and not later than the close of business on the later of the 90th day prior to the actual annual meeting date or the 20th day following the date on which public announcement of the date of such meeting is first made. Such shareholder?s notice shall set forth:
(i) as to each person whom the shareholder proposes to nominate for election or reelection as a director; all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the ?Exchange Act?) (including such person?s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);
(ii) as to any other business that the shareholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such shareholder and the beneficial owner, if any, on whose behalf the proposal is made
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and a representation that the shareholder intends to appear in person or by proxy at the meeting to introduce such proposal; and
(iii) as to the shareholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (1) the name and address of such shareholder, as they appear on the Corporation?s books, and of such beneficial owner and (2) the class and number of shares of the Corporation which are owned beneficially and of record by each shareholder and such beneficial owner.
Only such persons who are nominated in accordance with the procedures set forth herein shall be eligible to serve as directors and only such business shall be conducted at an annual meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth herein. The chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth herein and, if any proposed nomination or business is not in such compliance, to declare that such defective proposal shall be disregarded.
(f) Inclusion of Shareholder Proposals in Proxy Statement. Notwithstanding the foregoing provisions, a shareholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing herein shall be deemed to affect any rights of shareholders to request inclusion of proposals in the Corporation?s proxy statement pursuant to Rule 14a-8 under the Exchange Act. Any proposal that is properly included in the Corporation?s proxy statement and not validly withdrawn shall be brought before the annual meeting.
(a) Calling of Special Meetings. The President, a majority of the Board of Directors or a majority of the Independent Directors may call special meetings of the shareholders. Special meetings of shareholders also shall be called by the Secretary upon the written request of the holders of shares entitled to cast a majority (but not less than a majority) of all the votes entitled to be cast at such meeting. Such request shall state the purpose of such meeting and the matters proposed to be acted on at such meeting. The Secretary shall inform such shareholders of the reasonably estimated cost of preparing and mailing notice of the meeting and, upon payment to the Corporation of such costs by such shareholders, the Secretary shall give notice to each shareholder entitled to notice of the meeting. Unless requested by shareholders entitled to cast a majority of all the votes entitled to be cast at such meeting, a special meeting need not be called to consider any matter which is substantially the same as a matter voted on at any special meeting of the shareholders held during the preceding twelve months. The Board of Directors has the sole power to fix the date, time and place of the special meeting, the record date for determining shareholders entitled to request a special meeting and the record date for determining shareholders entitled to notice of and to vote at the special meeting.
(b) Postponement. The Board of Directors, acting by resolution, may postpone and reschedule any previously scheduled special meeting of shareholders; provided however that notice of the postponement of any properly-noticed special meeting must be given, by any means specified in Section 4 below, not less than ten (10) days prior to the previously scheduled meeting date.
(c) Transaction of Business. Only such business shall be conducted at a special meeting of shareholders as shall have been stated in the notice of meeting. The chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth herein and, if any proposed
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nomination or business is not in such compliance, to declare that such defective proposal shall be disregarded.
Section 4. Notice. Not less than ten (10) nor more than sixty (60) days before each meeting of shareholders, the Secretary shall give to each shareholder entitled to vote at such meeting and to each shareholder 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 statute, the purpose for which the meeting is called, either by mail or by presenting it to such shareholder personally or by leaving it at his residence or usual place of business. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the shareholder at his post office address as it appears on the records of the Corporation, with postage thereon prepaid.
Section 5. Organization. At every meeting of the shareholders, the Chairman of the Board, if there be one, shall conduct the meeting or, in the case of vacancy in office or absence of the Chairman of the Board, one of the following officers present shall conduct the meeting in the order stated: the Vice Chairman of the Board, if there be one, the President, the Vice Presidents in their order of rank and seniority, or a Chairman chosen by the shareholders entitled to cast a majority of the votes which all shareholders present in person or by proxy are entitled to cast, shall act as Chairman, and the Secretary, or, in his absence, an assistant secretary, or in the absence of both the Secretary and assistant secretaries, a person appointed by the Chairman shall act as Secretary.
Section 6. Quorum. At any meeting of shareholders, the presence in person or by proxy of shareholders entitled to cast fifty percent (50%) of all the votes entitled to be cast at such meeting shall constitute a quorum; but this Section 6 shall not affect any requirement under any statute, the Charter or these Bylaws for the vote necessary for the adoption of any measure. If such quorum shall not be present at any meeting of the shareholders, the shareholders representing a majority of the shares entitled to vote at such meeting, present in person or by proxy, may vote 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 until such quorum shall be present. 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.
Section 7. Voting. A plurality of all the votes cast at a meeting of shareholders duly called and at which a quorum is present shall be sufficient to elect a director. There shall be no cumulative voting. Each common 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 shareholders 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, by the Charter or by these Bylaws. Each shareholder of record shall have the right, at every meeting of shareholders, to one vote for each share held, except shares which are the subject of a redemption notice as provided in the Charter.
Section 8. Proxies. A shareholder may vote the common shares owned of record by him, either in person or by proxy executed or authorized by the shareholder, or by his duly authorized attorney in fact, in any manner permitted by law. Such proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy.
Section 9. Voting of Shares by Certain Holders. Shares registered in the name of a trust or another corporation, if entitled to be voted, may be voted by the president, a vice president or a proxy appointed by the president or a vice president of such trust or other corporation, unless some other
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person who has been appointed to vote such shares pursuant to a bylaw or a resolution of the board of such trust or other corporation presents a certified copy of such bylaw or resolution, in which case such person may vote such shares. Any fiduciary may vote shares registered in his name as such fiduciary, either in person or by proxy.
Shares indirectly owned by the Corporation 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 all 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 shareholder may certify in writing to the Corporation that any shares registered in the name of the shareholder are held for the account of a specified person other than the shareholder. The resolution shall set forth the class of shareholders 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 share transfer books, the time after the record date or closing of the share 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 shareholder of record of the specified shares in place of the shareholder who makes the certification.
Section 10. Inspectors. At any meeting of shareholders, the Chairman of the meeting may, or upon the request of any shareholder shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting based upon their determination of the validity and effect of proxies, count all votes, report the results and perform such other acts as are proper to conduct the election and voting with impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him 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. Determination of Shareholders of Record. The Board of Directors shall fix a date, not more than sixty (60) nor less than ten (10) days preceding the date of any meeting of shareholders, and not more than sixty (60) days preceding the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of, or to vote at, any such meeting, or entitled to receive any such dividend or distribution or allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares.
When a determination of shareholders entitled to vote at any meeting of shareholders has been made as provided in this Section 11, such determination shall apply to any adjournment thereof unless the meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting, in which case the Board of Directors shall fix a new record date.
Section 12. Action Without a Meeting. Any action required or permitted to be taken at a meeting of shareholders may be taken without a meeting if a consent in writing, setting forth such action, is signed by each shareholder entitled to vote on the matter and any other shareholder entitled
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to notice of a meeting of shareholders (but not to vote thereat) has waived in writing any right to dissent from such action, and such consent and waiver are filed with the minutes of proceedings of the shareholders.
Section 13. Voting by Ballot. Voting on any question or in any election may be viva voce unless the presiding officer shall order or any shareholder shall demand that voting be by ballot.
Section 14. Control Share Acquisition Statute. Subtitle 7 of Title 3 of the Maryland General Corporation Law does not apply to any acquisition of shares of capital stock of the Corporation.
Section 1. General Powers. The Board of Directors shall have full power to conduct, manage, and direct the business and affairs of the Corporation, and all powers of the Corporation, except those specifically reserved or granted to the shareholders by statute or by the Charter or these Bylaws, shall be exercised by, or under the authority of, the Board of Directors. Unless otherwise agreed between the Corporation and the Director, each individual Director, including each Independent Director, may engage in other business activities of the type conducted by the Corporation and is not required to present to the Corporation any investment opportunities presented to them even though the investment opportunities may be within the scope of the Corporation?s investment policies.
Section 2. Number, Tenure and Qualifications. At any regular meeting or at any special meeting called for that purpose, a majority of the entire Board of Directors may establish, increase or decrease the number of directors, provided that the number thereof shall not be less than the minimum number required by the General Laws of the State of Maryland now or hereafter in force, nor more than nine (9), and further provided that the tenure of office of a director shall not be affected by any decrease in the number of directors. Pursuant to the Charter of the Corporation, at all times subsequent to the closing of the Initial Public Offering of Common Shares of the Corporation, the directors shall be divided into three (3) classes with terms of office of three years each, with the term of office of one class expiring at the annual meeting of stockholders in each year. Each director shall hold office for the term for which he or she is elected and until his or her successor is duly elected and qualified, or until his or her resignation, removal (in accordance with the Charter and these Bylaws) or death.
At all times (except (i) during a period not to exceed sixty (60) days following the death, resignation, incapacity or removal from office of a Director prior to the expiration of the Director?s term of office or (ii) prior to the closing date of the Initial Public Offering (as hereinafter defined) and the consummation of all transactions related thereto), a majority of the Directors shall be Independent Directors.