AMENDED AND RESTATED
BY-LAWS
OF
COMMERCIAL NET LEASE REALTY, INC.
(adopted on November 11, 2003)
ARTICLE I
OFFICES
Section 1. Registered Office . The registered Office of
Commercial Net Lease Realty, Inc. (the “Corporation”)
shall be 300 East Lombard Street, Baltimore, Maryland 21202. The
registered agent of the Corporation at such address is The
Corporation Trust Incorporated.
Section 2. Additional Offices . The Corporation may also
have offices at such other places, both within and without the
State of Maryland, as the board of directors of the Corporation
(the “Board of Directors”) may from time to time
determine or the business of the Corporation may
require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. Time and Place . Meetings of the stockholders of
the Corporation (the “Stockholders”) shall be held at
such places, either within or without the State of Maryland, as
shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Annual Meeting . The Annual Meeting of
Stockholders for the election of directors and the transaction of
other business shall be held, in each year, commencing with the
year 1995, after delivery of the annual report referred to in
Section 12 of this Article II, on such date and at such time and
location as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Failure to hold
the Annual Meeting does not invalidate the Corporation’s
existence or affect any otherwise valid acts of the
Corporation.
Section 3. Special Meetings . The Chairman of the Board, the
Chief Executive Officer or a majority of the members of the Board
of Directors may call a Special Meeting of the Stockholders. A
Special Meeting shall also be called by the Secretary of the
Corporation upon the written request of the Stockholders entitled
to cast not less than a majority of all the votes entitled to be
cast 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 by such shareholders to the
Corporation of such costs, 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 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 meeting of the Stockholders held during the
preceding twelve (12) months.
Section 4. Notice . Written notice of any meeting of
Stockholders stating the place, date and hour of the meeting shall
be given to each Stockholder entitled to vote thereat, either
personally or by mail, not less than ten (10) nor more than ninety
(90) days before the date of the meeting, unless a greater period
of notice is required by statute in a particular case. In the case
of a Special Meeting, the notice shall also state the purpose or
purposes for which the meeting is called. If mailed, such notice
shall be deemed to have been given when deposited in the United
States mail, postage prepaid, directed to the Stockholder at the
Stockholder’s address as it appears on the records of the
Corporation.
Section 5. Corporate Records and Stockholder Lists . The
officer who has charge of the stock ledger of the Corporation shall
prepare and keep, or cause to have prepared and kept, as part of
the books and records of the Corporation, a list of the names and
addresses of all Stockholders of the Corporation. Inspection of all
the books and records of the Corporation by Stockholders shall be
permitted to the extent provided by the Maryland General
Corporation Law.
Section 6. Quorum: Adjournments . Unless otherwise provided
by statute or the Articles of Incorporation, at a meeting of
Stockholders the presence in person or by proxy of Stockholders
entitled to cast a majority of all the votes entitled to be cast at
a meeting of Stockholders, shall constitute a quorum. If, however,
such quorum shall not be present or represented at any meeting of
the Stockholders, the Stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without further notice to a
date not more than one hundred twenty (120) days after the original
record date. 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 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 of
stock may be voted for as many individuals as there are Directors
to be elected and for whose election the shares of stock are
entitled to be voted. When a quorum is present at any meeting, the
vote of the holders of a majority of the votes cast shall decide
any other question brought before such meeting, unless more than a
majority of the votes cast is required herein or by statute or by
the Articles of Incorporation.
Section 8. Voting Procedure . Unless otherwise provided in
the Articles of Incorporation, each Stockholder shall, at every
meeting of the Stockholders, regardless of class, be entitled to
one (1) vote in person or by proxy for each share of stock held by
such Stockholder.
Section 9. Proxies . A Stockholder may cast the votes
entitled to be cast by the share of stock owned of record by the
Stockholder either in person or by proxy executed by the
Stockholder or by the Stockholder’s duly authorized agent in
any manner allowed 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 (11) months from the date of
its execution, unless otherwise provided in the proxy.
Section 10. Voting of Stock By Certain Holders . Shares of
stock of the Corporation registered in the name of a corporation,
partnership, limited liability company, trust or other entity, if
entitled to be voted, may be voted by the president or a vice
president, a general partner, a manager, a managing member 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 by-law or a resolution
of the governing board of such corporation or other entity or
agreement of the partners of the partnership or agreement of the
members of the limited liability company presents a certified copy
of such by-law, resolution or agreement, in which case such person
may vote such stock. Any trustee or other fiduciary may vote stock
registered in such person’s 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 of stock
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 of
stock at any given time.
The
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 Directors
consider 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 shares of stock in place of the stockholder
who makes the certification.
Section 11. Inspectors . At any meeting of Stockholders, the
Chairman of the meeting may appoint one or more persons as
inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares of stock 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 Stockholders.
Each
report of an inspector shall be in writing and signed by the
inspector 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 of stock represented at the meeting and the results of
the voting shall be prima facie evidence thereof.
Section 12. Reports to Stockholders . The Directors shall
submit to the Stockholders at or before the Annual Meeting of
Stockholders a report of the business and operations of the
Corporation during such fiscal year, containing a balance sheet and
a statement of income and surplus of the Corporation, accompanied
by the certification of an independent certified public accountant,
and such further information as the Directors may determine is
required pursuant to any law or regulation to which the Corporation
is subject. Within the earlier of twenty (20) days after the Annual
Meeting of Stockholders or one hundred twenty (120) days after the
end of the fiscal year of the Corporation, the Directors shall
place the annual report on file at the principal office of the
Corporation and with any governmental agencies as may be required
by law and as the Directors may deem appropriate.
Section 13. Nominations and Proposals by Stockholders
.
(a) Annual Meetings of
Stockholders.
(i) Nominations of persons for election to
the Board of Directors and the proposal of business to be
considered by the Stockholders may be made at an Annual Meeting of
Stockholders: (A) pursuant to the Corporation’s notice of
meeting; (B) by or at the direction of the Directors; or (C) by any
Stockholder of the Corporation who was a stockholder of record both
at the time of giving of notice provided for in this Section 13(a)
and at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth
in this Section 13(a).
(ii) For nominations or other business to
be properly brought before an Annual Meeting by a Stockholder
pursuant to clause (C) of paragraph (a) (i) of this Section 13, 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 Stockholders. To be timely, a
Stockholder’s notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not later than
the close of business on the 120 th calendar day before
the first anniversary of the date of the Corporation’s proxy
statement released to Stockholders in connection with the preceding
year’s Annual Meeting; provided, however, that in the event
that the date of the current year’s Annual Meeting has been
changed by more than thirty (30) days from the date of the
preceding year’s meeting or if the Corporation did not hold
an Annual Meeting the preceding year, notice by the Stockholder to
be timely must be so delivered within a reasonable time before the
Annual Meeting begins to print and mail its proxy materials. In no
event shall the public announcement of a postponement or
adjournment of an Annual Meeting to a later date or time commence a
new time period for the giving of a Stockholder’s notice as
described above. Such Stockholder’s notice shall set forth:
(A) as to each person whom the Stockholder 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 in an election contest, 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); (B) as to any other business
that the Stockholder 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 Stockholder and
of the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the Stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made: (i) the name and address of such Stockholder, as
it appears on the Corporation’s books, and of such beneficial
owner; and (ii) the number of each class of shares of the
Corporation which are owned beneficially and of record by such
Stockholder and such beneficial owner.
(iii) Notwithstanding anything in the
second sentence of paragraph (a) (ii) of this Section 13 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 by the Corporation naming all of the nominees for
Director or specifying the size of the increased Board of Directors
at least seventy (70) days prior to the first anniversary of the
preceding year’s annual meeting, a Stockholder’s notice
required by this Section 13(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 offices of the Corporation not later than the
close of business on the 10 th day following the day on
which such public announcement is first made by the
Corporation.
(b) Special Meetings of Shareholders. 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
persons 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 was a Stockholder of record both at the time of
giving of notice provided for in this Section 13(b) 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
13(b). In the event the Corporation calls a Special Meeting of
Stockholders for the purpose of electing one or more Directors to
the Board of Directors, any such Stockholder may nominate a person
or persons (as the case may be) for election to such position as
specified in the Corporation’s notice of meeting, if the
Stockholder’s notice containing the information required by
paragraph (a) (ii) of this Section 13 shall be delivered to the
Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 120th day
prior to such Special Meeting and not later than the close of
business on the later of the 90 th day prior to such
Special Meeting or the 10 th 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 Directors to be elected
at such meeting. In no event shall the public announcement of a
postponement or adjournment of a Special Meeting to a later date or
time commence a new time period for the giving of a
Stockholder’s notice as described above.
(c) General.
(i) Only such persons who are nominated in
accordance with the procedures set forth in this Section 13 shall
be eligible to be elected 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 the procedures set
forth in this Section 13. 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 or
proposed, as the case may be, in accordance with the procedures set
forth in this Section 13 and, if any proposed nomination or
business is not in compliance with this Section 13, to declare that
such nomination or proposal shall be disregarded.
(ii) For purposes of this Section 13,
“public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or
comparable news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing
provisions of this Section 13, 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 13. Nothing in this Section 13
shall be deemed to affect any rights of Stockholders to request
inclusion of proposals in, nor the right of the Corporation to omit
a proposal from, the Corporation’s proxy statement pursuant
to Rule 14a-8 under the Exchange Act.
Section 14. Informal Action by Stockholders .
(a) Any action by Stockholders may be taken
without a meeting, if a majority of shares of Stock entitled to
vote on the matter (or such larger proportion of shares of Stock as
shall be required to take such action) consent to the action in
writing and the written consents are filed with the records of the
meetings of Stockholders.
(b) In order that the Corporation may
determine the Stockholders entitled to consent to action in writing
without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days
after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. Any Stockholder of record
seeking to have the Stockholders authorize or take action by
written consent shall, by written notice to the Secretary of the
Corporation, request the Board of Directors to fix a record date.
The Board of Directors shall promptly, but in all events within ten
(10) days of the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed
by the Board of Directors within ten (10) days of the date on which
such a request is received and no prior action by the Board of
Directors is required by applicable law, the record date for
determining Stockholders entitled to consent to action in writing
without a meeting shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office
in the State of Maryland, its principal place of business, or an
officer or agent of the Corporation having custody of the book in
which proceedings of Stockholders meetings are recorded, in each
case to the attention of the Secretary of Corporation. Delivery
shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of
Directors within ten (10) days of the date on which such a request
is received and prior action by the Board of Directors is required
by applicable law, the record date for determining Stockholders
entitled to consent to action in writing without a meeting shall be
at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior
action.
Section 15. Voting by Ballot . Voting on any question or in
any election may be by voice unless the presiding officer shall
order or any Stockholder shall demand that voting be by
ballot.
ARTICLE III
DIRECTORS
Section 1. Number. The number of directors
(“Directors”) which shall constitute the whole Board
shall be no fewer than three (3) and no more than twelve (12). Such
numbers may be altered (but not to less than three (3)) by
amendment to this By-law.
Section 2. Selection . The Directors shall be elected at the
Annual Meeting of the Stockholders, except as provided in Section 5
of this Article, and except that the first Directors of the
Corporation were named in the Articles of Incorporation, each
Director elected shall hold office until the next Annual Meeting of
the Stockholders and until the Director’s successor is
elected and qualified, or until the Director’s earlier
resignation or removal.
Section 3. Composition . A majority of the members of the
Board of Directors shall, except during the period of a vacancy or
vacancies therein, be Independent Directors. Independent Directors
are persons who are not affiliated, directly or indirectly, with
any person, corporation, association, company, trust, partnership
(limited or general) or other organization (any
“Manager”) to whom the Board of Directors has delegated
management duties as permitted by Section 16 of this Article,
whether by ownership of, ownership interest in, employment by, any
business or professional relationship with, or service as an
officer or director of such Manager or an affiliated business
entity of such Manager. A Director also shall not be deemed an
Independent Director if the Director performs any services for the
Corporation other than as a Director. Any decision by the
Corporation with respect to the purchase or sale of any real
property, or the leasing of the Corporation’s real property,
shall be subject to the approval of (i) the Directors and (ii) the
Independent Directors.
Section 4. Chairman of the Board . The Board of Directors
may elect from among the Directors a Chairman of the Board of
Directors by affirmative vote of a majority of the full Board of
Directors taken at any regular or special meeting of Directors. The
Chairman of the Board shall act as chairman at all meetings of the
Stockholders at which the Chairman of the Board is present and
shall preside at all meetings of the Board of Directors at which
the Chairman of the Board is present. In the absence of the
Chairman of the Board, the duties of the Chairman of the Board
shall be performed and the authority of the Chairman of the Board
may be exercised by the Vice Chairman of the Board.
Section 5. Vice Chairman of the Board . The Board of
Directors may elect from among the Directors a Vice Chairman of the
Board of Directors by affirmative vote of a majority of the full
Board of Directors taken at any regular or special meeting of
Directors. The Vice Chairman of the Board shall, in the absence of
the Chairman of the Board, act as chairman at all meetings of
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