Exhibit b
AMENDED AND RESTATED
BY-LAWS
OF
USA REIT FUND LLC
ARTICLE 1
LLC AGREEMENT; DEFINITIONS
1.1 Limited Liability Company Agreement. These By-Laws shall be subject
to the limited liability company agreement, as from time to time amended or
amended and restated (the "LLC Agreement") of USA REIT Fund LLC (the "Company"),
a Delaware limited liability company. Shareholders as used herein shall mean
"Share Beneficial Owners" as defined in the LLC Agreement
1.2 Definitions. Unless otherwise defined herein, the terms used herein
have the respective meanings given them in the LLC Agreement.
ARTICLE 2
SHAREHOLDERS
2.1 Meetings.
(a) Meetings of the Shareholders may be called at any time by
the Chief Executive Officer or the Directors. Subject to subsection (c) of this
Section 2.1, a meeting of Shareholders shall also be called by the Corporate
Secretary of the Company upon the written request of the Shareholders entitled
to cast not less than a majority of all the votes entitled to be cast at such
meeting.
(b) Any Shareholder seeking to have Shareholders request a
meeting shall, by sending written notice to the Corporate Secretary (the "Record
Date Request Notice") by registered mail, return receipt requested, request the
Directors to fix a record date to determine the Shareholders entitled to request
a meeting (the "Requested 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 Shareholders as of the date of signature (or
their duly authorized agents), shall bear the date of signature of each such
Shareholder (or their agent) and shall set forth all information relating to
each such Shareholder 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
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Rule 14a-11 thereunder. Upon receiving the Record Date Request Notice, the
Directors may fix a Requested Record Date. The Requested Record Date shall not
precede and shall not be more than ten (10) days after the close of business on
the date on which the resolution fixing the Requested Record Date is adopted by
the Directors. If the Directors, within thirty (30) days after the date on which
a valid Record Date Request Notice is received, fail to adopt a resolution
fixing the Requested Record Date and make a public announcement of such
Requested Record
Date, the Requested Record Date shall be the close of business on the 30th day
after the first date on which the Record Date Request Notice is received by the
Corporate Secretary.
(c) In order for any Shareholder to request a meeting, one or
more written requests for a meeting signed by Shareholders (or their duly
authorized agents) as of the Requested Record Date entitled to cast not less
than a majority (the "Meeting Percentage") of all of the votes entitled to be
cast at such meeting (the "Meeting Request") shall be delivered to the Corporate
Secretary. In addition, the Meeting Request shall set forth the purpose of the
meeting and the matters proposed to be acted on at it (which shall be limited to
the matters set forth in the Record Date Request Notice received by the
Corporate Secretary), shall bear the date of signature of each such Shareholder
(or their agent) signing the Meeting Request, shall set forth the name and
address, as they appear in the Company's books, of each Shareholder signing such
request (or on whose behalf the Meeting Request is signed) and the Class and
number of Shares of the Company which are owned of record and beneficially by
each such Shareholder, shall be sent to the Corporate Secretary by registered
mail, return receipt requested, and shall be received by the Corporate Secretary
within sixty (60) days after the Request Record Date. Any requesting Shareholder
may revoke his, her or its request for a meeting at any time by written
revocation delivered to the Corporate Secretary.
(d) The Corporate Secretary shall inform the requesting
Shareholders of the reasonably estimated cost of preparing and mailing the
notice of meeting (including the Company's proxy materials). The Corporate
Secretary shall not be required to call a meeting upon Shareholder request and
such meeting shall not be held unless, in addition to the documents required by
paragraphs (b) and (c) of this Section 2.1, the Corporate Secretary receives
payment of such reasonably estimated cost prior to the mailing of any notice of
the meeting.
(e) Except as provided in the next sentence, any meeting shall
be held at such place, date and time as may be designated by the Chief Executive
Officer or Directors, whoever has called the meeting. In the case of any meeting
called by the Corporate Secretary upon the request of Shareholders (a
"Shareholder Requested Meeting"), such meeting shall be held at such place, date
and time as may be designated by the Directors; provided, however, that the date
of any Shareholder Requested Meeting shall be not more than ninety (90) days
after the record date for such meeting (the "Meeting Record Date"); and provided
further that if the Directors fail to designate, within thirty (30) days after
the date that a valid Meeting Request is actually received by the Corporate
Secretary (the "Delivery Date"), a date and time for a Shareholder Requested
Meeting, then such meeting shall be held at 2:00 p.m. Eastern Time on the 90th
day after the date the request for such meeting is actually received by the
Company 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
Directors fail to designate a place for a Shareholder Requested Meeting within
thirty (30) days after the Delivery Date, then such meeting shall be held at the
principal office of the Company. In fixing a date for any meeting, the Chief
Executive Officer or Directors may consider such factors as he, she, or they
deem(s) 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 a meeting and any plan of the
Directors to call a meeting. In the case of any Shareholder Requested Meeting,
if the Directors fail to fix a Meeting Record Date that is a date within thirty
(30) days after the
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Delivery Date, then the close of business on the 30th day after the Delivery
Date shall be the Meeting Record Date.
(f) If at any time as a result of written revocations of
requests for the meeting, Shareholders (or their duly authorized agents) as of
the Request Record Date entitled to cast less than the Meeting Percentage shall
have delivered and not revoked requests for a meeting, the Corporate Secretary
may refrain from mailing the notice of the meeting or, if the notice of the
meeting has been mailed, the Corporate Secretary may revoke the notice of the
meeting at any time before ten (10) days prior to the meeting if the Corporate
Secretary has first sent to all other requesting Shareholders written notice of
such revocation and of intention to revoke the notice of the meeting. Any
request for a meeting received after a revocation by the Corporate Secretary of
a notice of a meeting shall be considered a request for a new meeting.
(g) The Chief Executive Officer or the Directors may appoint
recognized independent inspectors of elections to act as the agent of the
Company for the purpose of promptly performing a ministerial review of the
validity of any purported Meeting Request received by the Corporate 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 Corporate
Secretary until the earlier of (i) five (5) Business Days after receipt by the
Corporate Secretary of such purported request and (ii) such date as the
independent inspectors certify to the Company that the valid requests received
by the Corporate Secretary represent at least a majority of the issued and
outstanding shares of stock that would be entitled to vote at such meeting.
Nothing contained in this paragraph (g) shall in any way be construed to suggest
or imply that the Company or any Shareholder shall not be entitled to contest
the validity of any request, whether during or after such five (5) 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).
2.2 Business Day. For purposes of these By-Laws, "Business Day" means
any day except Saturday, Sunday or a statutory holiday in Toronto, Ontario or
New York, New York.
2.3 Notice of Meetings. Notice of all meetings of the Shareholders,
stating the time, place and purposes of the meeting, shall be given by the
Directors by mail or telegraphic or electronic means to each Shareholder at the
Shareholder's address as recorded on the register of the Company mailed at least
ten (10) days and not more than ninety (90) days before the meeting; provided,
however, that notice of a meeting need not be given to a Shareholder to whom
such notice need not be given under the proxy rules of the Commission under the
1940 Act and the Exchange Act (and the failure to provide such notice to such
Shareholder is not a violation of any applicable laws of any non-U.S.
jurisdiction where Shares are issued and sold by the Company); and provided,
further, that notice of any Shareholder Requested Meeting shall be provided in a
manner and time consistent with Section 2.1(e). Only the business stated in the
notice of the meeting shall be considered at such meeting. Any adjourned meeting
may be held and adjourned without further notice. No notice need be given to any
Shareholder who shall have failed to inform the Company of his current address
or if a written waiver of notice, executed before or after the meeting by the
Shareholder who shall have failed to inform the Company of his current address
or executed before or after the meeting by the Shareholder or his attorney
thereunto authorized, is filed with the records of the meeting.
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2.4 Record Date for Meetings and Other Purposes. Except as provided in
Section 2.1, for the purpose of determining the Shareholders who are entitled to
notice of and to vote at any meeting, or to participate in any distribution, or
for the purpose of any other action, the Directors may from time to time close
the transfer books for such period, not exceeding thirty (30) days, as the
Directors may determine; or without closing the transfer books the Directors may
fix a date not more than ninety (90) days prior to the date of any meeting of
Shareholders or distribution or other action as a record date for the
determination of the Persons to be treated as Shareholders of record for such
purposes, except for dividend payments which shall be governed by the LLC
Agreement.
2.5 Proxies. At any meeting of Shareholders, any Shareholder entitled
to vote thereat may vote by proxy; provided that no proxy shall be voted at any
meeting unless it shall have been placed on file with the Secretary, or with
such other officer or agent of the Company as the Corporate Secretary may
direct, for verification prior to the time at which such vote shall be taken. A
proxy shall be deemed signed if the Shareholder's name is placed on the proxy,
(whether by manual signature, typewriting, telegraphic transmission, facsimile,
other electronic means or otherwise) by the Shareholder or the Shareholder's
attorney-in-fact. Proxies may be recorded by any electronic, telephonic,
internet or other telecommunication device except as otherwise provided in the
LLC Agreement. The placing of a Shareholder's name on a proxy pursuant to
telephonic or electronically transmitted instructions pursuant to procedures
reasonably designed to verify that such instructions have been authorized by the
Shareholder shall constitute execution of the proxy by or on behalf of the
Shareholder. Proxies may be solicited in the name of one or more Directors or
one or more of the officers of the Company. Only Shareholders shall be
entitled to vote. Except as otherwise determined by the Directors without the
vote or consent of Shareholders, on any matter submitted to a vote of
Shareholders each whole Share shall be entitled to one vote as to any matter on
which it is entitled to vote and no fractional Share shall be entitled to any
vote. Without limiting their power to designate otherwise in accordance with the
preceding sentence, the Directors have established in the LLC Agreement that
each whole Share shall be entitled to one vote as to any matter on which it is
entitled by the LLC Agreement to vote and fractional shares not shall be
entitled to any vote. When any Share is held jointly by several persons, any one
of them may vote at any meeting in person or by proxy in respect of such Share,
but if more than one of them shall be present at such meeting in person or by
proxy, and such joint owners or their proxies so present disagree as to any vote
to be cast, such vote shall not be received in respect of such Share. A proxy,
including a photographic or similar reproduction thereof and a telegram,
cablegram, wireless or similar transmission thereof, purporting to be executed
by or on behalf of a Shareholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. If the holder of any such Share is a minor or a person of unsound
mind, and subject to guardianship or the legal control of any other Person as
regards the charge or management of such Share, he may vote by his guardian or
such other Person appointed or having such control, and such vote may be given
in person or by proxy. Except as otherwise provided herein or in the LLC
Agreement or the Delaware Limited Liability Company Act, 6 Del. C. xx.xx. 18-101
et seq., all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Company were a
Delaware corporation and the Shareholders were shareholders of a Delaware
corporation.
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2.6 Inspection of Books. The books and records of the Company and a
list of the names and residence, business or mailing addresses and Shares held
by all Shareholders shall be maintained. The books and records of the Company
shall be available for examination by any Shareholder or by such Shareholder's
duly authorized representatives at any and all reasonable times upon reasonable
notice for any purpose reasonably related to the Shareholder's interest as a
Shareholder of the Company; provided, that it is understood that the Company is
bound by certain confidentiality obligations and, accordingly, except to the
extent otherwise required by law, a Shareholder shall not be entitled to examine
the following information in connection with its examination of the books and
records of the Company: (i) any information that the Company is required by law
or agreement to keep confidential, provided that such information will be
disclosed to the extent permissible subject to the execution of an appropriate
confidentiality agreement by the Shareholder seeking such information; (ii) any
information reasonably deemed by the Directors to constitute proprietary trade
secrets of the Company; and (iii) any other information the disclosure of which
the Directors in good faith believe is not in the best interest of the Company
or could damage the Company or its business. Any Shareholder, or such
Shareholder's duly authorized representatives, upon notification to the
Directors and upon paying the costs of collection, duplication and mailing,
shall be entitled for any purpose reasonably related to the Shareholder's
interest as a Shareholder of the Company, to a copy of information to which such
Shareholder is entitled under the Delaware Act. The Company may maintain such
other books and records and may provide such financial or other statements as
the Directors in their discretion deem advisable.
2.7 Application of This Article. Meetings of Shareholders shall consist
of Shareholders of any Class or of all Shareholders, as determined pursuant to
the LLC Agreement, and this Article 2 shall be construed accordingly.
2.8 Nominations and Proposals by Shareholders.
(a) Meetings of Shareholders. Only such business shall be
conducted at a meeting of Shareholders as shall have been brought before the
meeting pursuant to the Company's notice of meeting. Nominations of persons for
election as a Director may be made at a meeting of Shareholders at which
Directors are to be elected (i) pursuant to the Company's notice of meeting,
(ii) by or at the direction of the Directors or (iii) provided that the
Directors have determined that Directors shall be elected at such meeting, by
any Shareholder of the Company who is a Shareholder both at the time
of giving of notice provided for in this Section 2.8(a) and at the time of the
meeting, who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 2.8(a). In the event the Company calls a
meeting of Shareholders for the purpose of electing one or more Directors, any
such Shareholder may nominate a person or persons (as the case may be) for
election to such position as specified in the Company's notice of meeting, if
the Shareholder's notice containing the information required by the last
sentence of this Section 2.8(a) shall have been delivered to the Corporate
Secretary at the principal offices of the Company not earlier than the close of
business on the 120th day prior to such meeting and not later than the close of
business on the later of the 90th day prior to such meeting or the 10th day
following the day on which public announcement is first made of the date of the
meeting and 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 meeting to a later date or time commence a new time period for
the giving of a
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Shareholder's notice as described above. A Shareholder's notice to be proper
must set forth (i) as to each person whom the Shareholder proposes to nominate
for election or reelection as a Director (A) the name, age, business address and
residence address of such person, (B) the class and number of Shares of the
Company that are beneficially owned or owned of record by such person and (C)
all other 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 (or any successor
provision) under 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); and (ii) as to the Shareholder giving the notice and each beneficial
owner, if any, on whose behalf the nomination or proposal is made, (x) the name
and address of such Shareholder, as they appear on the Company's Share ledger
and current name and address, if different, and of such beneficial owner, and
(y) the class and number of Shares of the Company which are owned beneficially
and of record by such Shareholder and such beneficial owner.
(b) General. Only such persons who are nominated in accordance
with the procedures set forth in this Section 2.8 shall be eligible to serve as
Director, and only such business shall be conducted at a meeting of Shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 2.8. The chairman of the meeting shall have the power
and duty 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 the procedures set forth in this Section 2.8 and, if any
proposed nomination or other business is not in compliance with this Section
2.8, to declare that such nomination or proposal shall be disregarded.
For purposes of this Section 2.8, (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 either transmitted to the principal securities
exchange on which Shares of the Company are traded or reported by a recognized
news service or (ii) in a document publicly filed by the Company with the
Commission or any applicable non-U.S. securities commission or agency.
(c) Compliance With Law. Notwithstanding the foregoing
provisions of this Section 2.8, a Shareholder shall also comply with all
requirements of applicable law and regulation with respect to the
matters set forth in this Section 2.8. Nothing in this Section 2.8 shall be
deemed to affect any right of a Shareholder to request inclusion of a proposal
in, nor the right of the Company to omit a proposal from, the Company's proxy
statement pursuant to Rule 14a-8 (or any successor provision) under the Exchange
Act.
2.9 Abstentions and Broker Non-Votes. Outstanding Shares represented in
person or by proxy (including Shares which abstain or do not vote with respect
to one or more of any proposals presented for Shareholder approval) will be
counted for purposes of determining whether a quorum is present at a meeting.
Abstentions will be treated as Shares that are present and entitled to vote for
purposes of determining the number of Shares that are present and
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entitled to vote with respect to any particular proposal, but will not be
counted as a vote in favor of such proposal. If a broker or nominee holding
Shares in "street name" indicates on the proxy that it does not have
discretionary authority to vote as to a particular proposal, those Shares will
not be considered as present and entitled to vote with respect to such proposal.
2.10 Action without Meeting. Any action which may be taken by
Shareholders may be taken without a meeting if a majority of Outstanding Shares
entitled to vote on the matter (or such larger or smaller proportion thereof as
shall be required by applicable U.S federal or non-U.S. law, the LLC Agreement
or these By-Laws) consent to the action in writing and the written consents are
filed with the records of the meetings of Shareholders. Such consents shall be
treated for all purposes as a vote taken at a meeting of Shareholders.
ARTICLE 3
DIRECTORS
3.1 Meetings of the Directors. The Directors may in their discretion
provide for regular or stated meetings of the Directors. Notice of regular or
stated meetings need not be given. Meetings of the Directors other than regular
or stated meetings shall be held whenever called by the Chief Executive Officer
or by any two of the Directors or by the Corporate Secretary, at the time then
in office. Notice of the time and place of each meeting other than regular or
stated meetings shall be given by the Corporate Secretary or an Assistant
Corporate Secretary or by the Chief Executive Officer or Directors calling the
meeting and shall be mailed, postage prepaid, to each Director at least three
(3) days before the meeting, or shall be given by telephone, cable, wireless,
facsimile or other electronic mechanism by which receipt thereof can be
confirmed to each Director at his business address or personally delivered to
him at least one (1) day before the meeting. Such notice may, however, be waived
by any Director. Notice of a meeting need not be given to any Director if a
written waiver of notice, executed by him before or after the meeting, is filed
with the records of the meeting or to any Director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. A notice or waiver of notice need not specify the purpose of any meeting.
The Directors may meet by means of a telephone conference circuit or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time and participation by such means
shall be deemed to have been held at a place designated by the Directors at the
meeting. Participation in a telephone conference meeting shall constitute
presence in person at such meeting. Any action required or permitted to be taken
at any meeting of the Directors may be taken by the Directors without a meeting
if a majority of the Directors then in office (or such higher number of
Directors as would be required to act on the matter under the LLC Agreement,
these By-Laws or applicable law if a meeting were held) consent to the action in
writing and the written consents are filed with the records of the Directors'
meetings. Such consents shall be treated as a vote for all purposes.
Notwithstanding the foregoing, all actions of the Directors shall be taken in
compliance with the provisions of the 1940 Act.
3.2 Quorum and Manner of Acting. A majority of the Directors then in
office shall be present in person at any regular or special meeting of the
Directors in order to constitute a quorum for the transaction of business at
such meeting and (except as otherwise required by law,
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the LLC Agreement or these By-Laws) the act of a majority of the Directors
present at any such meeting, at which a quorum is present, shall be the act of
the Directors. In the absence of a quorum, a majority of the Directors present
may adjourn the meeting from time to time until a quorum shall be present.
Notice of an adjourned meeting need not be given.
ARTICLE 4
COMMITTEES
4.1 Executive Committee. The Directors by vote of a majority of all the
Directors may elect from their own number an Executive Committee to consist of
not less than two members to hold office at the pleasure of the Directors, which
shall have the power to conduct the current and ordinary business of the Company
while the Directors are not in session, including, without limitation, the
purchase and sale of securities and the designation of securities to be
delivered upon redemption of Shares of the Company and such other powers of the
Directors as the Directors may delegate to them, from time to time, except those
powers which by law, the LLC Agreement or these By-Laws they are prohibited from
delegating.
4.2 Other Committees. The Directors by vote of a majority of all the
Directors may elect from their own number other Committees from time to time to
consist of one or more Directors, and, if so desired and appointed by the
Directors, one or more other Persons who are not Directors, to hold office at
the pleasure of the Directors, which Committees shall have such power and duties
as the Board of Directors may, by resolution, prescribe, subject to the same
limitations as with respect to the Executive Committee. The terms of membership
on such Committees and the termination or circumstances giving rise to the
termination of such Committees shall be determined by the Directors. The
Directors may designate a chairman of any such Committee. In the absence of such
designation the Committee may elect its own chairman.
4.3 Meetings Quorum and Manner of Acting. The Directors may (1) provide
for stated meetings of any Committee, (2) specify the manner of calling and
notice required for special meetings of any Committee, (3) specify the number of
members of a Committee required to constitute a quorum and the number of members
of a Committee required to exercise specified powers delegated to such
Committee, (4) authorize the making of decisions to exercise specified powers by
written assent of the requisite number of members of a Committee without a
meeting, and (5) authorize the members of a Committee to meet by means of a
telephone conference circuit. Each Committee shall keep regular minutes of its
meetings and records of decisions taken without a meeting and cause them to be
recorded in a book designated for that purpose and kept at the principal
executive office of the Company.
ARTICLE 5
OFFICERS
5.1 General Provisions. The officers of the Company shall be a Chief
Executive Officer, a President, one or more Vice-Presidents, a Chief Financial
Officer, and a Corporate Secretary. The Company may also have, at the discretion
of the Directors, such other officers as
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may be appointed in accordance with the provisions of Section 3 of this Article
5. Any number of offices may be held by the same person. Each of the officers of
the Company may but need not be a Director. Subject to any provisions of the LLC
Agreement applicable to initial appointment and term of officers, the officers
of the Company, except such officers as may be appointed in accordance with the
provisions of Section 5.2 or Section 5.3 of this Article 5, shall be chosen by
the Directors, and all officers shall serve at the pleasure of the Directors.
5.2 Subordinate Officers. The Directors may appoint and may empower the
Chief Executive Officer to appoint such other officers as the business of the
Company may require, each of whom shall hold office for such period, have such
authority and perform such duties as are provided in these By-Laws or as the
Directors (or, to the extent the power to prescribe authorities and duties of
subordinate officers is delegated to him, the Chief Executive Officer) may from
time to time determine.
5.3 Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or other cause shall be filled in the
manner prescribed in these By-Laws for regular appointment to that office. The
Chief Executive Officer may make temporary appointments to a vacant office
pending action by the Directors.
5.4 Removal and Resignation of Officers. Any officer may be removed,
with or without cause, by the Directors at any regular or special meeting of the
Directors or by such officer, if any, upon whom such power of removal may be
conferred by the Directors. Any officer may resign at any time by giving written
notice to the Company. Any resignation shall take effect at the date of the
receipt of that notice or at any later time specified in that notice; and unless
otherwise specified in notice of a resignation, the acceptance of the
resignation shall not be necessary to make it effective. Any resignation is
without prejudice to the rights, if any, of the Company under any contract to
which the officer is a party.
5.5 Powers and Duties of the Chief Executive Officer. The Chief
Executive Officer shall, subject to the control of the Directors, have general
supervision, direction and control of the business and the officers of the
Company, and shall preside at all meetings of the Board of Directors and of the
Shareholders at which he or she shall be present in the absence of the Chairman
of the Board. The Chief Executive Officer shall have the general powers and
duties of supervision and management normally vested in the office of Chief
Executive Officer of a corporation and shall have such other powers and duties
as may be prescribed by the Directors, the LLC Agreement or these By-Laws.
5.6 Powers and Duties of the President. In the absence of the Chief
Executive Officer or the Chairman of the Board, the President shall preside at
all meetings of the Board of Directors and of the Shareholders at which he or
she shall be present. The President shall have the general powers and duties of
management usually vested in the office of President of a corporation and shall
have such other powers and duties as may be prescribed by the Directors, the
Chief Executive Officer, the LLC Agreement or these By-Laws.
5.7 Powers and Duties of Vice Presidents. In the absence or disability
of the President, the Vice Presidents, and in the order designated by the
Directors, shall perform all the duties and may exercise any of the powers of
the President, subject to the control of the Directors. Each Vice President
shall perform such other duties as may be assigned to him or her
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from time to time by the Directors, the Chief Executive Officer, the LLC
Agreement or these By-Laws.
5.8 Powers and Duties of the Chief Financial Officer. The Chief
Financial Officer, if any, shall keep and maintain or cause to be kept and
maintained adequate and correct books and records of accounts of the properties
and business transactions of the Company. The books of account shall at all
reasonable times be open to inspection by any Director. The Chief Financial
Officer shall have other powers and perform such other duties as may be
prescribed by the Directors, the Chief Executive Officer, the LLC Agreement or
these By-Laws.
5.9 Powers and Duties of the Corporate Secretary. The Corporate
Secretary shall attend all meetings of the Directors and Shareholders; the
Corporate Secretary shall keep the minutes of all meetings of the Directors and
of the Shareholders in proper books provided for that purpose; the Corporate
Secretary shall have custody of the seal of the Company; the Corporate Secretary
shall have charge of the Share transfer books, lists and records unless the same
are in the charge of a transfer agent. The Corporate Secretary shall attend to
the giving and serving of all notices by the Company in accordance with the
provisions of these By-Laws and as required by law; and subject to these
By-Laws, the Corporate Secretary shall in general perform all duties incident to
the office of Corporate Secretary and such other duties as from time to time may
be assigned to the Corporate Secretary by the Directors, the Chief Executive
Officer, the LLC Agreement or these By-Laws.
5.10 Powers and Duties of Assistant Corporate Secretaries. In the
absence or disability of the Corporate Secretary, any Assistant Corporate
Secretary designated by the Directors shall perform all the duties, and may
exercise any of the powers, of the Corporate Secretary. Each Assistant Corporate
Secretary shall perform such other duties as from time to time may be assigned
to such officer by the Directors, the Chief Executive Officer, the LLC Agreement
or these By-Laws.
ARTICLE 6
SEAL
The Directors may, but shall not be required to, adopt a seal which
shall be in such form and shall have such inscription thereon as the Directors
may from time to time prescribe.
ARTICLE 7
SUFFICIENCY AND WAIVERS OF NOTICE
Whenever any notice whatever is required to be given by law, the LLC
Agreement or these By-Laws, a waiver thereof in writing, signed by the Person or
Persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. A notice shall be deemed to have
been sent by mail, telegraph or cable when it has been delivered to a
representative of any company holding itself out as capable of sending notice by
such means with instructions that it be so sent, or at the time of confirmation
if sent by wireless, facsimile or other electronic means.
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ARTICLE 8
CERTIFICATES
If so determined by resolution of the Board of Directors, each
Shareholder of the Company shall be entitled upon request to have a certificate
or certificates, in such form as shall be approved by the Board of Directors,
representing the number of Shares of the Company owned by the Shareholder,
provided, however, that certificates for fractional Shares will not be delivered
in any case. Certificates representing Shares shall be signed by or in the name
of the Company by the President or a Vice President and by the Corporate
Secretary or an Assistant Corporate Secretary or the Chief Financial Officer.
Any or all of the signatures may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate shall be issued, it may be issued by the
Company with the same effect as if such officer, transfer agent or registrar
were still in the office at the date of issue.
ARTICLE 9
AMENDMENT
These By-Laws, or any of them, may be altered, amended or repealed, or
new By-Laws may be adopted by the Directors, provided, however, that no By-law
may be amended, adopted or repealed by the Directors if such amendment, adoption
or repeal requires, pursuant to U.S. federal law, the LLC Agreement or these
By-Laws, a vote of the Shareholders.
Adopted: November 26, 2003
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