S.B. No. 1617
AN ACT
1-1 relating to the Texas Real Estate Investment Trust Act.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. The Texas Real Estate Investment Trust Act
1-4 (Article 6138A, Vernon's Texas Civil Statutes) is amended to read
1-5 as follows:
1-6 Art. 6138A. Texas Real Estate Investment Trust Act
1-7 Sec. 1.10 <1>. Short Title. This Act shall be known and may
1-8 be cited as the "Texas Real Estate Investment Trust Act."
1-9 Sec. 2.10 <2>. Real Estate Investment Trust Defined. A real
1-10 estate investment trust is an unincorporated trust formed by one or
1-11 more trust managers under <the provisions of> Section 3.10 <3> of
1-12 this Act and managed in accordance with <the provisions of Section
1-13 4 of> this Act.
1-14 Sec. 3.10 <3>. Formation of real estate investment trust.
1-15 (A) One or more persons, may act as trust manager(s) of a real
1-16 estate investment trust by subscribing and acknowledging to a
1-17 declaration of trust before an officer duly authorized to take
1-18 acknowledgments of deeds, which shall set forth:
1-19 (1) The name of the real estate investment trust and a
1-20 statement that an assumed name certificate setting forth such name
1-21 has been filed in the manner prescribed by law.
1-22 (2) A statement that it is formed pursuant to the
1-23 provisions of this Act and has the following as its purpose:
1-24 To purchase, hold, lease, manage, sell, exchange,
2-1 develop, subdivide and improve real property and interests in real
2-2 property, and in general, to carry on any other business and do any
2-3 other acts in connection with the foregoing and to have and
2-4 exercise all powers conferred by the laws of the State of Texas
2-5 upon real estate investment trusts formed under the Texas Real
2-6 Estate Investment Trust Act, and to do any or all of the things
2-7 hereinafter set forth to the same extent as natural persons might
2-8 or could do. The term "real property" and the term "interests in
2-9 real property" for the purposes stated herein shall not include
2-10 severed mineral, oil or gas royalty interests.
2-11 (3) <As to any real property of any character, major
2-12 capital improvements must be made within fifteen (15) years of
2-13 purchase or the property must be sold. Such major capital
2-14 improvements must equal or exceed the purchase price of such real
2-15 property, if the same is unimproved property at the time of
2-16 purchase or property outside the corporate limits of a city, town
2-17 or village. Any citizen of the State of Texas may force compliance
2-18 with this provision by filing suit in any district court of this
2-19 state and shall receive from such real estate investment trust
2-20 forced to sell under this provision the sum of five per cent (5%)
2-21 of the sale price of such real property interest as compensation.>
2-22 <(4)> The post office address of its initial principal
2-23 office and place of business.
2-24 (4) The street address of its registered office and
2-25 the name of its registered agent at that address.
2-26 (5) The name and business address, and post office
2-27 address, if different from the business address, of each trust
3-1 manager<, specifying the resident trust manager>.
3-2 (6) The period of its duration, which may be for a
3-3 term of years or perpetual.
3-4 (7) The aggregate number of shares of beneficial
3-5 interest the real estate investment trust shall have authority to
3-6 issue and the par value to be received by the real estate
3-7 investment trust for the issuance of each of such shares. If the
3-8 shares are divided into classes as permitted by Section 3.30 <3.1>
3-9 of this Act <Article>, the declaration shall provide a description
3-10 of each class, including any preferences, conversion, and other
3-11 rights, voting powers, restrictions, limitations as to dividends,
3-12 qualifications, and terms and conditions of redemption.
3-13 (8) <A statement that shares of beneficial interests
3-14 will be issued only for money or property actually received.>
3-15 <(9)> A statement that the trust manager(s) shall
3-16 manage <hold> the money or property received for the issuance of
3-17 shares for the benefit of the shareholders of the real estate
3-18 investment trust <owners of such shares>.
3-19 (9) <(10)> A statement that the real estate investment
3-20 trust will not commence business until it has received for the
3-21 issuance of shares of beneficial interest consideration of at least
3-22 a $1,000 value, consisting of any tangible or intangible benefit to
3-23 the real estate investment trust, including cash, promissory notes,
3-24 services performed, contracts for services to be performed, or
3-25 other securities of the real estate investment trust <operations
3-26 until the beneficial ownership is held by one hundred or more
3-27 persons with no five (5) persons owning more than fifty per cent
4-1 (50%) of the total number of outstanding shares of beneficial
4-2 interest. The word person as used herein shall not include
4-3 corporations>.
4-4 (10) <(11)> Any provision, not inconsistent with law,
4-5 including any provision which under this Act is permitted to be set
4-6 forth in the bylaws <by-laws>, which the trust manager(s) elect to
4-7 set forth in the declaration of trust for the regulation of the
4-8 internal affairs of the real estate investment trust.
4-9 (B) The declaration of trust shall be filed for record with
4-10 the County Clerk of the county of the principal place of business
4-11 of the real estate investment trust. The existence of the real
4-12 estate investment trust begins when the declaration of trust is
4-13 filed as required by this subsection.
4-14 (C) After the real estate investment trust has been formed,
4-15 an organizational meeting of the initial trust managers named in
4-16 the declaration of trust shall be held, at the call of a majority
4-17 of the trust managers named in the declaration of trust, to adopt
4-18 bylaws, elect officers, and transact other business that may come
4-19 before the trust managers at the meeting. The trust managers who
4-20 call the meeting shall give each trust manager named in the
4-21 declaration of trust at least three days' notice of the meeting by
4-22 mail. The notice must state the time and place of the meeting.
4-23 Sec. 3.20. DEFENSE OF ULTRA VIRES. (A) Lack of capacity of
4-24 a real estate investment trust may never be the basis of a claim or
4-25 defense at law or in equity.
4-26 (B) An act of a real estate investment trust or a conveyance
4-27 or transfer of real or personal property to or by a real estate
5-1 investment trust may not be declared invalid because the act,
5-2 conveyance, or transfer was beyond the scope of the purpose or
5-3 purposes of the real estate investment trust as expressed in the
5-4 declaration of trust or because there are limitations expressed in
5-5 the declaration of trust on the authority of the officers and trust
5-6 managers of the real estate investment trust to exercise any
5-7 statutory power of the real estate investment trust.
5-8 (C) The fact that an act, conveyance, or transfer was or is
5-9 beyond the scope of the purpose or purposes of the real estate
5-10 investment trust as expressed in its declaration of trust or
5-11 inconsistent with any expressed limitations of authority may be
5-12 asserted:
5-13 (1) In a proceeding by a shareholder against the real
5-14 estate investment trust to enjoin an act or acts or the transfer of
5-15 real or personal property by or to the real estate investment
5-16 trust. If the unauthorized act or transfer sought to be enjoined
5-17 is being, or is to be, performed or made pursuant to any contract
5-18 to which the real estate investment trust is a party, the court may
5-19 set aside and enjoin the performance of the contract, if all of the
5-20 parties to the contract are parties to the proceeding and if the
5-21 court considers the action to be equitable. If the court sets
5-22 aside and enjoins the performance of the contract, the court may
5-23 allow compensation to the real estate investment trust or to the
5-24 other parties to the contract for the loss or damage sustained as a
5-25 result of the court's action. The court may not award anticipated
5-26 profits to be derived from the performance of the contract as a
5-27 part of loss or damage sustained.
6-1 (2) In a proceeding by the real estate investment
6-2 trust against the incumbent or former officers or trust managers of
6-3 the real estate investment trust for exceeding their authority,
6-4 whether the real estate investment trust is acting directly or
6-5 through a receiver, trustee, or other legal representative, or
6-6 through shareholders in a representative suit.
6-7 Sec. 3.30 <3.1>. Classification of shares. (A) <Provisions
6-8 in declaration of trust.> A real estate investment trust may
6-9 provide by its declaration of trust:
6-10 (1) that any specified class of shares is preferred
6-11 over another class as to its distributive share of the assets on
6-12 voluntary or involuntary liquidation of the real estate investment
6-13 trust and the amount of the preference;
6-14 (2) that any specified class of shares may be redeemed
6-15 at the option of the real estate investment trust or of the holders
6-16 of the shares and the terms and conditions of redemption, including
6-17 the time and price of redemption;
6-18 (3) that any specified class of shares is convertible
6-19 into shares of one or more other classes and the terms and
6-20 conditions of conversion;
6-21 (4) that the holders of any specified securities
6-22 issued or to be issued by the real estate investment trust have any
6-23 voting or other rights which, by law, are or may be conferred on
6-24 shareholders;
6-25 (5) for any other preferences, rights, restrictions,
6-26 including restrictions on transferability, and qualifications not
6-27 inconsistent with law; provided, however, that no shareholder shall
7-1 have a preemptive right to acquire securities unless specifically
7-2 provided for in the declaration of trust; and
7-3 (6) that the trust manager(s) may classify or
7-4 reclassify any unissued shares from time to time by setting or
7-5 changing the preferences, conversion or other rights, voting
7-6 powers, restrictions, limitations as to dividends, qualifications,
7-7 or terms or conditions of redemption of the shares.
7-8 (B) <Statement of designation to be filed with county
7-9 clerk.> If, under a power contained in the declaration of trust,
7-10 the trust manager(s) classifies or reclassifies any unissued shares
7-11 by setting or changing the preferences, conversion or other rights,
7-12 voting powers, restrictions, limitations as to dividends,
7-13 qualifications, or terms or conditions of redemption, the trust
7-14 manager(s), before issuing any of the shares, shall file a
7-15 statement of designation for record with the county clerk of the
7-16 county of the principal place of business of the real estate
7-17 investment trust, which shall include:
7-18 (1) A description of the shares, including the
7-19 preferences, conversion and other rights, voting powers,
7-20 restrictions, limitations as to dividends, qualifications, and
7-21 terms and conditions of redemption, as set or changed by the trust
7-22 manager(s); and
7-23 (2) A statement that the shares have been classified
7-24 or reclassified by the trust manager(s) under the authority
7-25 contained in the declaration of trust.
7-26 <(C) Statements in certificates evidencing shares. If the
7-27 real estate investment trust has authority to issue shares of more
8-1 than one class, except as provided in Subsection (D) of this
8-2 Section, the certificate evidencing the shares shall contain on its
8-3 face or back a full statement or summary of:>
8-4 <(1) The designations and any preferences, conversion
8-5 and other rights, voting powers, restrictions, limitations as to
8-6 dividends, qualifications, and terms and conditions of redemption
8-7 of the shares of each class which the real estate investment trust
8-8 is authorized to issue; and>
8-9 <(2) If the real estate investment trust is authorized
8-10 to issue any preferred or special class in series:>
8-11 <(a) The differences in the relative rights and
8-12 preferences between the shares of each series to the extent they
8-13 have been set; and>
8-14 <(b) The authority of the trust manager(s) to
8-15 set the relative rights and preferences of subsequent series.>
8-16 <(D) Alternatives to full statement. (1) A summary of the
8-17 information required by Subsection (C) of this Section, as included
8-18 in a registration statement permitted to become effective under the
8-19 federal Securities Act of 1933, is an acceptable summary for the
8-20 purposes of this Section.>
8-21 <(2) Instead of a full statement or summary as
8-22 required by Subsection (C) of this Section, the certificate may
8-23 state that the real estate investment trust will furnish a full
8-24 statement of the information required by Subsection (C) of this
8-25 Section to any holder of shares without charge on written request
8-26 to the real estate investment trust at its principal place of
8-27 business or registered office.>
9-1 Sec. 4.10 <4>. Operation of real estate investment trust;
9-2 Trust Managers and Officers. (A) The control, operation,
9-3 disposition, investment, reinvestment and management of the trust
9-4 estate and, whether included in the foregoing or not, all powers
9-5 necessary or appropriate to effect any or all of the purposes for
9-6 which the real estate investment trust is organized shall be vested
9-7 in one or more <the> trust manager(s) named in the declaration of
9-8 trust or successor(s) selected in accordance therewith; provided
9-9 that naming successor trust manager(s) shall be considered an
9-10 amendment to the declaration of trust. Trust managers must be
9-11 natural persons but do not need to be residents of this state <At
9-12 least a majority of the trust managers must be natural persons and
9-13 residents of the State of Texas and the other trust manager(s), if
9-14 any, need not be residents of this state> or shareholders of the
9-15 real estate investment trust unless the declaration of trust or
9-16 bylaws <by-laws> so require. The declaration of trust or bylaws
9-17 <by-laws> may prescribe other qualifications for the trust
9-18 manager(s).
9-19 (B) The number of trust managers shall be fixed by, or in
9-20 the manner provided in, the declaration of trust or the bylaws,
9-21 except for the number of initial trust managers, which shall be
9-22 fixed by the declaration of trust. The number of trust managers
9-23 may be increased or decreased from time to time by amendment to, or
9-24 in the manner provided in, the declaration of trust or the bylaws.
9-25 A decrease in the number of trust managers does not shorten the
9-26 term of any incumbent trust manager. Unless otherwise provided in
9-27 the declaration of trust or the bylaws, a trust manager shall serve
10-1 until the manager's successor has been elected by the requisite
10-2 vote. A trust manager may succeed himself or herself in office.
10-3 If no successor trust manager is elected, the existing trust
10-4 manager shall remain in office until the manager's successor is
10-5 elected.
10-6 (C) The bylaws of a real estate investment trust may provide
10-7 that the trust managers be divided into two or three classes, each
10-8 class to be as nearly equal in number as possible. The bylaws may
10-9 provide that the terms of office of trust managers of the first
10-10 class expire on the election of a successor at the first annual
10-11 meeting of shareholders after their election, that the terms of
10-12 office of trust managers of the second class expire on the election
10-13 of a successor at the second annual meeting after their election,
10-14 and that the terms of office of trust managers of the third class,
10-15 if any, expire on the election of a successor at the third annual
10-16 meeting after their election. If the bylaws provide for the
10-17 classification of trust managers, (1) an annual election for the
10-18 whole number of trust managers is not necessary, and (2) at each
10-19 annual meeting after the classification, the number of trust
10-20 managers equal to the number of the class whose terms expire at the
10-21 time of the meeting shall stand for election to office until the
10-22 second succeeding annual meeting if there are two classes or until
10-23 the third succeeding annual meeting if there are three classes. A
10-24 classification of trust managers does not take effect before the
10-25 next annual meeting of shareholders at which trust managers are
10-26 elected unless the classification is effected by a bylaw adopted by
10-27 the shareholders. A classification of trust managers is not
11-1 effective for any real estate investment trust if any shareholder
11-2 has the right to cumulate his votes for the election of trust
11-3 managers of the real estate investment trust unless there are nine
11-4 or more trust managers.
11-5 (D) Any vacancy occurring in the trust managers may be
11-6 filled by the vote of a majority of the remaining trust managers,
11-7 though less than a quorum; provided, however, that the declaration
11-8 of trust or bylaws may provide an alternative procedure for filling
11-9 vacancies, including simple majority or super-majority votes of the
11-10 shareholders. A trust manager elected to fill a vacancy shall be
11-11 elected for the unexpired term of the trust manager's predecessor
11-12 in office and until the trust manager's successor is elected and
11-13 qualified <or by the vote of two-thirds (2/3) of the outstanding
11-14 voting shares of the trust>.
11-15 (E) A <(C) If the trust is managed by three (3) or more
11-16 trust managers, a> majority of the number of trust managers shall
11-17 constitute a quorum for the transaction of business unless a
11-18 greater number is required by the declaration of trust or the
11-19 bylaws <by-laws>.
11-20 (F) <(D)> The trust manager(s) may designate one or more
11-21 persons, regardless of whether the persons are trust managers,
11-22 <such of its members> to constitute officers of the real estate
11-23 investment trust to the extent provided in the declaration of trust
11-24 or in the bylaws <by-laws> of the real estate investment trust, who
11-25 shall have and may exercise all of the authorities of the trust
11-26 manager(s) in the business and affairs of the real estate
11-27 investment trust except where action of the trust manager(s) is
12-1 specified by this Act or other applicable laws, but the designation
12-2 of such officers and the delegation thereto of authority shall not
12-3 operate to relieve the trust manager(s), or any member thereof, of
12-4 any responsibility imposed upon them or him by law. All officers
12-5 and agents of the real estate investment trust shall have such
12-6 authority and perform such duties in the management of the real
12-7 estate investment trust as may be provided in the bylaws <by-laws>
12-8 or as may be determined by the trust manager(s) not inconsistent
12-9 with the bylaws <by-laws>. Any officer or agent elected or
12-10 appointed by the trust manager(s) may be removed by the trust
12-11 manager(s) whenever in their judgment the best interests of the
12-12 real estate investment trust will be served thereby, but such
12-13 removal shall be without prejudice to the contract rights, if any,
12-14 of <if> the person <is> so removed. Election or appointment of an
12-15 officer or agent shall not of itself create contract rights.
12-16 (G) <(E)> The trust manager(s) or officers shall have the
12-17 power to exercise complete discretion with respect to the
12-18 investment of the trust estate so long as the investment is
12-19 <subject to the limitation that seventy-five per cent (75%) of the
12-20 total trust assets shall be invested in real property (including
12-21 fee ownership and co-ownership of land or improvements thereon and
12-22 leaseholds of land or improvements thereon), interests in mortgages
12-23 on real property, shares in other real estate investment trusts,
12-24 cash and cash items (including receivables) and Government
12-25 securities; provided that (i) the trust manager(s) or officers
12-26 shall not have the power to invest in severed mineral, oil or gas
12-27 royalty interests, and (ii) the trust manager(s) or officers may
13-1 invest any percentage of the trust estate in a subsidiary
13-2 corporation or entity, so long as such percentage ownership is> not
13-3 contrary to or inconsistent with this Section or with the sections
13-4 of the Internal Revenue Code of 1986 (or any successor statute)
13-5 which relate to or govern real estate investment trusts or the
13-6 regulations adopted under such sections.
13-7 (H) <(F)> The trust manager(s) and the officers of the real
13-8 estate investment trust shall receive such compensation as may be
13-9 fixed by, or in the manner provided in, the declaration of trust
13-10 or<,> the bylaws. If the declaration of trust or bylaws does not
13-11 contain a provision for compensation to the trust managers and
13-12 officers of the real estate investment trust, the compensation for
13-13 the trust managers and officers shall be determined by vote of the
13-14 trust managers <by-laws or as determined by majority vote of the
13-15 holders of all the outstanding shares>.
13-16 (I) <(G)> To the extent any provision of this Act is
13-17 contrary to or inconsistent with the sections of the Internal
13-18 Revenue Code of 1986 (or any successor statute) which relate to or
13-19 govern real estate investment trusts or the regulations adopted
13-20 under those sections, or requires any trust formed hereunder to
13-21 take (or prohibits any trust formed hereunder from taking) any
13-22 action required to secure or maintain its status as a real estate
13-23 investment trust under such sections or regulations, the sections
13-24 and regulations of the Internal Revenue Code of 1986 (or any
13-25 successor statute) shall prevail over the provisions of this Act as
13-26 to any real estate investment trust qualifying or attempting to
13-27 qualify under such sections and regulations.
14-1 Sec. 4.20. INTERESTED TRUST MANAGERS AND OFFICERS. (A) A
14-2 contract or transaction between a real estate investment trust and
14-3 one or more of the trust managers or officers of the real estate
14-4 investment trust, or between a real estate investment trust and any
14-5 other real estate investment trust, corporation, partnership,
14-6 association, or other organization, is not void or voidable solely
14-7 because one or more of the trust managers or officers of the real
14-8 estate investment trust are trust managers, directors, or officers
14-9 or have a financial interest in the other real estate investment
14-10 trust, corporation, partnership, association, or other
14-11 organization; solely because the trust manager or officer is
14-12 present at or participates in the meeting of the trust managers or
14-13 committee of trust managers that authorizes the contract or
14-14 transaction; or solely because the trust manager's or officer's
14-15 votes are counted for the authorization if:
14-16 (1) the material facts as to the trust manager's or
14-17 officer's relationship or interest and as to the contract or
14-18 transaction are disclosed or are known to the trust managers or the
14-19 committee, and the trust managers or committee in good faith
14-20 authorizes the contract or transaction by the affirmative vote of a
14-21 majority of the disinterested trust managers, even though the
14-22 number of disinterested trust managers is less than a quorum;
14-23 (2) the material facts as to the trust manager's or
14-24 officer's relationship or interest and as to the contract or
14-25 transaction are disclosed or are known to the shareholders entitled
14-26 to vote on the contract or transaction, and the contract or
14-27 transaction is specifically approved in good faith by vote of the
15-1 shareholders; or
15-2 (3) the contract or transaction is fair as to the real
15-3 estate investment trust as of the time the contract or transaction
15-4 is authorized, approved, or ratified by the trust managers, a
15-5 committee of trust managers, or the shareholders.
15-6 (B) Common or interested trust managers may be counted in
15-7 determining the presence of a quorum at a meeting of the trust
15-8 managers or of a committee of trust managers that authorizes the
15-9 contract or transaction.
15-10 Sec. 4.30. COMMITTEES OF THE TRUST MANAGERS. (A) If the
15-11 declaration of trust or the bylaws provide for the designation of
15-12 committees of trust managers, the trust managers, by resolution
15-13 adopted by a majority of the trust managers, may designate from
15-14 among the members of the trust managers one or more committees.
15-15 The committees must be composed of one or more of the members of
15-16 the trust managers. The trust managers may designate one or more
15-17 of their members as alternate members of any committee who, subject
15-18 to any limitations imposed by the trust managers, may replace
15-19 absent or disqualified members at any meeting of that committee.
15-20 To the extent provided in the resolution or in the declaration of
15-21 trust or the bylaws, a committee has and may exercise all of the
15-22 authority of the trust managers subject to the limitations set
15-23 forth in Subsections (B) and (C) of this Section.
15-24 (B) A committee of trust managers does not have the
15-25 authority of the trust managers with regard to:
15-26 (1) amending the declaration of trust, except that a
15-27 committee, to the extent provided in the resolution designating
16-1 that committee or in the declaration of trust or the bylaws, may
16-2 exercise the authority of the trust managers to classify or
16-3 reclassify shares in accordance with Section 3.30 of this Act;
16-4 (2) proposing a reduction of the stated capital of the
16-5 real estate investment trust;
16-6 (3) approving a plan of merger or share exchange of
16-7 the real estate investment trust;
16-8 (4) recommending to the shareholders the sale, lease,
16-9 or exchange of all or substantially all of the property and assets
16-10 of the real estate investment trust other than in the usual and
16-11 regular course of its business;
16-12 (5) recommending to the shareholders a voluntary
16-13 dissolution of the real estate investment trust or a revocation of
16-14 the trust;
16-15 (6) amending, altering, or repealing the bylaws or
16-16 adopting new bylaws of the real estate investment trust;
16-17 (7) filling vacancies in the trust managers;
16-18 (8) filling vacancies in or designating alternate
16-19 members of the committee;
16-20 (9) filling any trust manager vacancy occurring
16-21 because of an increase in the number of trust managers;
16-22 (10) electing or removing officers of the real estate
16-23 investment trust or members or alternate members of the committee;
16-24 (11) fixing the compensation of any member or
16-25 alternate member of the committee; or
16-26 (12) altering or repealing any resolution of the trust
16-27 managers that by its terms provides that it may not be altered in
17-1 that manner or repealed.
17-2 (C) A committee of the trust managers may not authorize a
17-3 distribution or the issuance of shares of the real estate
17-4 investment trust, unless the distribution or issuance is authorized
17-5 by the resolution designating that committee or the declaration of
17-6 trust or the bylaws.
17-7 (D) The designation of a committee of trust managers and the
17-8 delegation to the committee of the trust managers' authority does
17-9 not relieve any trust manager of any responsibility imposed by law.
17-10 Sec. 5.10 <5>. Registered Office and Registered Agent
17-11 <Service of Process on Real Estate Investment Trust>. (A) Each
17-12 real estate investment trust shall have and continuously maintain
17-13 in this state:
17-14 (1) a registered office that may be, but need not be,
17-15 the same as the principal office and place of business of the real
17-16 estate investment trust; and
17-17 (2) a registered agent that may be either:
17-18 (a) an individual resident in this state whose
17-19 business office is the same as the registered office of the real
17-20 estate investment trust; or
17-21 (b) a domestic corporation or real estate
17-22 investment trust or a foreign corporation authorized to transact
17-23 business in this state that has a business office that is the same
17-24 as the registered office of the real estate investment trust <The
17-25 resident trust manager(s) and any one of them if more than one and
17-26 any officer of the trust shall be an agent of such trust upon whom
17-27 any process, notice, or demand required or permitted by law to be
18-1 served upon the trust may be served>.
18-2 (B) A real estate investment trust may change its registered
18-3 office, its registered agent, or both, on filing with the county
18-4 clerk of the county where the declaration of trust was filed a
18-5 statement that is executed by an officer on behalf of the real
18-6 estate investment trust and that sets forth:
18-7 (1) the name of the real estate investment trust;
18-8 (2) the post-office address of the registered office
18-9 of the real estate investment trust;
18-10 (3) if the post-office address of the registered
18-11 office of the real estate investment trust is to be changed, the
18-12 post-office address to which the registered office is to be
18-13 changed;
18-14 (4) the name of the registered agent of the real
18-15 estate investment trust;
18-16 (5) if the registered agent of the real estate
18-17 investment trust is to be changed, the name of the successor
18-18 registered agent;
18-19 (6) a statement that the post-office address of the
18-20 registered office of the real estate investment trust or the
18-21 post-office address of the business office of the registered agent,
18-22 as changed, will be the same; and
18-23 (7) a statement that the proposed change was
18-24 authorized by the trust managers of the real estate investment
18-25 trust or by an officer of the real estate investment trust who is
18-26 authorized by the trust managers to make a decision regarding the
18-27 proposed change.
19-1 (C) Any registered agent of a real estate investment trust
19-2 may resign:
19-3 (1) by giving written notice to the real estate
19-4 investment trust at the last known address of the real estate
19-5 investment trust; and
19-6 (2) by filing written notice with the county clerk of
19-7 the county where the declaration of trust was filed within 10 days
19-8 after the date on which the notice described by Subdivision (1) of
19-9 this Subsection was mailed or delivered to the real estate
19-10 investment trust.
19-11 (D) The notice described by Subsection (C)(2) of this
19-12 Section must include the last known address of the real estate
19-13 investment trust, a statement that written notice of resignation
19-14 has been given to the real estate investment trust, and the date of
19-15 the resignation.
19-16 (E) On complying with the notice requirements of Subsections
19-17 (C) and (D) of this Section, the appointment of a registered agent
19-18 who wants to resign as agent terminates on the expiration of 30
19-19 days after the date on which the notice is filed with the county
19-20 clerk of the county where the declaration of trust was filed.
19-21 (F) The address of the location of the registered office in
19-22 this state for a real estate investment trust may be changed to
19-23 another address on filing with the county clerk of the county where
19-24 the declaration of trust was filed a statement that is executed by
19-25 the registered agent for the real estate investment trust, or if
19-26 the agent is a corporation or real estate investment trust, by an
19-27 officer on behalf of the corporation or the real estate investment
20-1 trust, and that sets forth:
20-2 (1) the name of the real estate investment trust
20-3 represented by the registered agent;
20-4 (2) the address at which the registered agent has
20-5 maintained the registered office for the real estate investment
20-6 trust;
20-7 (3) the new address at which the registered agent will
20-8 maintain the registered office for the real estate investment
20-9 trust; and
20-10 (4) a statement that written notice of the change of
20-11 address has been given to the real estate investment trust at least
20-12 10 days before the filing of the statement required by this
20-13 Section.
20-14 Sec. 5.20. SERVICE OF PROCESS. (A) The president, all vice
20-15 presidents, and the registered agent of the real estate investment
20-16 trust are agents of the real estate investment trust on whom any
20-17 process, notice, or demand required or permitted by law to be
20-18 served on the real estate investment trust may be served.
20-19 (B) When a real estate investment trust fails to appoint or
20-20 maintain a registered agent in this state or when the registered
20-21 agent of the real estate investment trust cannot with reasonable
20-22 diligence be found at the registered office, the secretary of state
20-23 shall be an agent of the real estate investment trust on whom any
20-24 process, notice, or demand may be served. Service of any process,
20-25 notice, or demand on the secretary of state shall be made by
20-26 delivering to and leaving with the secretary of state, the
20-27 assistant secretary of state, or any clerk having charge of the
21-1 corporation department of the office of the secretary of state,
21-2 duplicate copies of the process, notice, or demand. If any
21-3 process, notice, or demand is served on the secretary of state
21-4 under this Section, the secretary of state shall immediately
21-5 forward by registered mail one of the copies of the process,
21-6 notice, or demand to the real estate investment trust at its
21-7 registered office. Any service made on the secretary of state
21-8 shall be returnable in not less than 30 days.
21-9 (C) The secretary of state shall keep a record of all
21-10 processes, notices, and demands served on the secretary of state
21-11 under this Section. The record must include the time of the
21-12 service and the action of the secretary of state with regard to the
21-13 process, notice, or demand.
21-14 (D) The secretary of state shall collect for state use the
21-15 fee for maintaining a record of service of any process, notice, or
21-16 demand on the secretary of state as agent for any real estate
21-17 investment trust under this Section that is established by Section
21-18 A(20), Article 10.01, Texas Business Corporation Act.
21-19 Sec. 6.10 <6>. General Powers of Real Estate Investment
21-20 Trust. (A) Subject to the provisions of paragraphs (B) and (C) of
21-21 this Section, each real estate investment trust shall have power:
21-22 (1) To have perpetual succession by its trust name
21-23 unless a limited period of duration is stated in its declaration of
21-24 trust.
21-25 (2) To sue and be sued, complain and defend, in its
21-26 trust name.
21-27 (3) To purchase, receive, lease, or otherwise acquire,
22-1 own, hold, improve, use and otherwise deal in and with, real or
22-2 personal property or any interest therein, wherever situated, as
22-3 the purposes of the real estate investment trust shall require<,
22-4 but the trust shall not own more than one thousand (1,000) acres
22-5 outside the corporate limits of a town or city at any one time>.
22-6 (4) To sell, convey, mortgage, pledge, lease,
22-7 exchange, transfer and otherwise dispose of all or any part of its
22-8 property and assets.
22-9 (5) To lend money to, and otherwise assist, the
22-10 employees, officers, and trust managers of the real estate
22-11 investment trust if the loan or assistance may reasonably be
22-12 expected to benefit, directly or indirectly, the lending or
22-13 assisting real estate investment trust.
22-14 (6) <(5)> To purchase, receive, subscribe for, or
22-15 otherwise acquire, own, hold, vote, use, employ, mortgage, lend,
22-16 pledge, sell or otherwise dispose of, and otherwise use and deal in
22-17 and with, securities, shares or other interests in, or obligations
22-18 of, domestic or foreign corporations, associations, partnerships,
22-19 other real estate investment trusts, or individuals, or direct or
22-20 indirect obligations of the United States or of any other
22-21 government, state, territory, government district, or municipality,
22-22 or of any instrumentality thereof.
22-23 (7) To purchase or otherwise acquire its own bonds,
22-24 debentures, or other evidences of its indebtedness or obligations;
22-25 to purchase or otherwise acquire its own unredeemable shares and
22-26 hold those acquired shares as treasury shares or cancel or
22-27 otherwise dispose of those acquired shares; and to redeem or
23-1 purchase shares made redeemable by the provisions of its
23-2 declaration of trust.
23-3 (8) <(6)> To make contracts, and incur liabilities,
23-4 borrow money at such rates of interest as the trust may determine,
23-5 issue its notes, bonds, and other obligations, and secure any of
23-6 its obligations by mortgage or pledge of all or any of its
23-7 property, franchises, and income.
23-8 (9) <(7)> To lend money for its trust purposes, invest
23-9 and reinvest its funds, and take and hold real and personal
23-10 property as security for the payment of funds so loaned or
23-11 invested.
23-12 (10) <(8)> To conduct its business, carry on its
23-13 operations, and have offices and exercise the powers granted by
23-14 this Act in any state, territory, district or possession of the
23-15 United States, or in any foreign country.
23-16 (11) <(9)> To elect or appoint officers and agents of
23-17 the trust for such period of time as the real estate investment
23-18 trust may determine, and define their duties and fix their
23-19 compensation.
23-20 (12) <(10)> To make and alter bylaws <by-laws>, not
23-21 inconsistent with its declaration of trust or with the laws of this
23-22 state, for the administration and regulation of the affairs of the
23-23 real estate investment trust.
23-24 (13) To make donations for the public welfare or for
23-25 charitable, scientific, or educational purposes.
23-26 (14) To transact any lawful business that the trust
23-27 managers find will aid government policy.
24-1 (15) To indemnify trust managers, officers, employees,
24-2 and agents of the real estate investment trust and to purchase and
24-3 maintain liability insurance for those persons.
24-4 (16) To pay pensions and establish pension plans,
24-5 pension trusts, profit sharing plans, stock option plans, stock
24-6 bonus plans, and other incentive plans for any or all of, or any
24-7 class or classes of, its trust managers, officers, or employees.
24-8 (17) To be an organizer, partner, member, associate,
24-9 or manager of any partnership, joint venture, or other enterprise,
24-10 and to the extent permitted in any other jurisdiction, to be an
24-11 incorporator of any other corporation of any type or kind.
24-12 (18) <(11)> To cease its trust activities and
24-13 terminate its existence by voluntary dissolution.
24-14 (19) To engage in activities that are mandated or
24-15 authorized by sections of the Internal Revenue Code of 1986, or any
24-16 successor statute, that relate to or govern real estate investment
24-17 trusts or the regulations adopted under that law.
24-18 (20) <(12)> Whether included in the foregoing or not,
24-19 to have and exercise, all powers necessary or appropriate to effect
24-20 any or all of the purposes for which the real estate investment
24-21 trust is organized.
24-22 (B) Nothing in this Section grants any authority to officers
24-23 or trust manager(s) of a real estate investment trust to perform
24-24 any of the foregoing powers inconsistent with the limitations on
24-25 any of the same which may be expressly set forth in this Act or in
24-26 the declaration of trust or in any other laws of this state.
24-27 Authority of officers and trust manager(s) to act beyond the scope
25-1 of the purpose or purposes of a real estate investment trust is not
25-2 granted by any provision of this Section.
25-3 (C) Nothing contained in this Act shall be deemed to
25-4 authorize any action in violation of the antitrust laws <Anti-Trust
25-5 Laws> of this state as now existing or hereafter amended.
25-6 Sec. 7.10. SUBSCRIPTION FOR SHARES. (A) Unless otherwise
25-7 provided in the subscription, a subscription for shares of a real
25-8 estate investment trust to be organized may not be revoked within
25-9 six months, except with the consent of all other subscribers.
25-10 (B) In the case of a real estate investment trust to be
25-11 organized, the filing of the declaration of trust with the county
25-12 clerk of the county of the principal place of business of the real
25-13 estate investment trust constitutes acceptance by the real estate
25-14 investment trust of all subscriptions for shares that are contained
25-15 in a list of subscriptions filed with the declaration of trust.
25-16 The list of subscriptions shall contain the name, post-office
25-17 address, number of shares, and amount paid by each subscriber.
25-18 Failure to include a subscription for shares in the list of
25-19 subscriptions constitutes a rejection of the offer.
25-20 (C) In the case of an existing real estate investment trust,
25-21 acceptance of a subscription for shares is effected by a resolution
25-22 of acceptance by the trust managers or by a written memorandum of
25-23 acceptance of the subscription for shares executed by a person
25-24 authorized to execute the memorandum by the trust managers and
25-25 delivered to the subscriber or the subscriber's assignee.
25-26 (D) Subscriptions for shares, whether made before or after
25-27 the organization of a real estate investment trust, shall be paid
26-1 in full at a time determined by the trust managers or in
26-2 installments and at times determined by the trust managers. Any
26-3 call made by the trust managers for payment on subscriptions must
26-4 be uniform for all shares of the same class or all shares of the
26-5 same series, as the case may be. In case of default in the payment
26-6 of any installment or call when the payment is due, the real estate
26-7 investment trust may proceed to collect the amount due in the same
26-8 manner as the real estate investment trust would collect any debt
26-9 due the real estate investment trust. The bylaws may prescribe
26-10 other penalties for failure to pay installments or calls that may
26-11 become due, but a penalty working a forfeiture of a subscription,
26-12 or of the amounts paid on the subscription, may not be declared
26-13 against any subscriber unless the amount due on the subscription
26-14 remains unpaid on the 21st day after the day on which written
26-15 demand is made for payment. If mailed, the written demand is
26-16 considered to be made when deposited in the United States mail in a
26-17 sealed envelope, with prepaid postage, addressed to the subscriber
26-18 at the subscriber's last post-office address known to the real
26-19 estate investment trust. If the demand remains unsatisfied for the
26-20 20-day period, and if the real estate investment trust is solvent,
26-21 the real estate investment trust may declare the subscription to be
26-22 forfeited. The effect of the declaration of forfeiture is to
26-23 terminate all the rights and obligations of the subscriber as a
26-24 subscriber of shares.
26-25 Sec. 7.20. CERTIFICATES REPRESENTING SHARES. (A) A real
26-26 estate investment trust shall deliver certificates representing
26-27 shares to which shareholders are entitled, or the shares of a real
27-1 estate investment trust may be uncertificated shares. Unless
27-2 otherwise provided by the declaration of trust or bylaws, the trust
27-3 managers of a real estate investment trust by resolution may
27-4 provide that some or all of any or all classes and series of its
27-5 shares shall be uncertificated shares, provided that the resolution
27-6 may not apply to shares represented by a certificate until the
27-7 certificate is surrendered to the real estate investment trust.
27-8 Certificates representing shares shall be signed by the officer or
27-9 officers prescribed by the bylaws of the real estate investment
27-10 trust to sign the shares and may be sealed with the seal of the
27-11 real estate investment trust, if any, or a facsimile of the seal.
27-12 The signatures of the officer or officers on a certificate may be
27-13 facsimiles. If an officer who has signed or whose facsimile
27-14 signature has been placed on the certificate ceases to serve as an
27-15 officer before the certificate is issued, the real estate
27-16 investment trust may issue the certificate, and the certificate has
27-17 the same effect as if that officer were serving as an officer on
27-18 the date of the certificate's issuance.
27-19 (B) If a real estate investment trust is authorized to issue
27-20 shares of more than one class or series, each certificate
27-21 representing shares issued by the real estate investment trust
27-22 shall conspicuously:
27-23 (1) set forth on the face or back of the certificate a
27-24 full statement of all the designations, preferences, limitations,
27-25 and relative rights of the shares of each class or series to the
27-26 extent they have been fixed and determined and the authority of the
27-27 trust managers to fix and determine the designations, preferences,
28-1 limitations, and relative rights of subsequent series; or
28-2 (2) state on the face or back of the certificate that:
28-3 (a) a statement that contains the information
28-4 required in Subdivision (1) of this Subsection is set forth in the
28-5 declaration of trust on file with the county clerk of the county of
28-6 the principal place of business of the real estate investment
28-7 trust; and
28-8 (b) the real estate investment trust, on written
28-9 request to the real estate investment trust at its principal place
28-10 of business or registered office, will furnish a copy of the
28-11 statement to the record holder of the certificate without charge.
28-12 (C) Each certificate representing shares shall state on the
28-13 face of the certificate:
28-14 (1) that the real estate investment trust is organized
28-15 under the laws of this state;
28-16 (2) the name of the person to whom the certificate was
28-17 issued;
28-18 (3) the number and class of shares and the designation
28-19 of the series, if any, that the certificate represents; and
28-20 (4) the par value of each share represented by the
28-21 certificate, or a statement that the shares are without par value.
28-22 (D) In accordance with Chapter 8, Business & Commerce Code,
28-23 a real estate investment trust, after the issuance or transfer of
28-24 uncertificated shares, shall send to the registered owner of
28-25 uncertificated shares a written notice containing the information
28-26 required to be set forth or stated on certificates under this Act.
28-27 Except as otherwise expressly provided by law, the rights and
29-1 obligations of the holders of uncertificated shares and the rights
29-2 and obligations of the holders of certificates representing shares
29-3 of the same class and series must be identical. A share may not be
29-4 issued until the consideration for the share, fixed as provided by
29-5 law, has been fully paid.
29-6 (E) A requirement of this Act regarding matters to be set
29-7 forth on certificates representing shares of a real estate
29-8 investment trust may not apply to or affect certificates
29-9 outstanding when the requirement first becomes applicable to the
29-10 certificates, but the requirement shall apply to all certificates
29-11 issued after the requirement becomes applicable, whether the
29-12 requirement relates to an original issue of shares, a transfer of
29-13 shares, or otherwise.
29-14 (F) If any restriction on the transfer or registration of
29-15 the transfer of shares is imposed or agreed to by the real estate
29-16 investment trust, as permitted by this Act, each certificate
29-17 representing shares restricted in this manner:
29-18 (1) shall conspicuously set forth a full or summary
29-19 statement of the restriction on the face of the certificate;
29-20 (2) shall set forth the statement on the back of the
29-21 certificate and conspicuously refer to the statement on the face of
29-22 the certificate; or
29-23 (3) shall conspicuously state on the face or back of
29-24 the certificate that such a restriction exists pursuant to a
29-25 specified document and:
29-26 (a) that the real estate investment trust, on
29-27 written request to the real estate investment trust at its
30-1 principal place of business, shall furnish to the record holder of
30-2 the certificate a copy of the specific document without charge; or
30-3 (b) if the document is one required or permitted
30-4 to be and has been filed under this Act, that the specified
30-5 document is on file with the county clerk of the county of the
30-6 principal place of business of the real estate investment trust and
30-7 contains a full statement of the restriction.
30-8 (G) Unless the document described by Subdivision (3) of
30-9 Subsection (F) of this Section was on file with the county clerk of
30-10 the county of the principal place of business of the real estate
30-11 investment trust at the time of the request, a real estate
30-12 investment trust that fails within a reasonable time to furnish
30-13 without charge to a record holder of a certificate who requested a
30-14 copy of the specified document may not be permitted to enforce its
30-15 rights under the restriction imposed on the shares represented by
30-16 the certificate.
30-17 (H) If a real estate investment trust has by its declaration
30-18 of trust provided for a preemptive right of shareholders to acquire
30-19 unissued securities of the real estate investment trust, each
30-20 certificate representing shares issued by the real estate
30-21 investment trust shall conspicuously set forth on the face or back
30-22 of the certificate a full statement of the existence of preemptive
30-23 rights.
30-24 Sec. 7.30 <7>. Consideration and Payment for Shares.
30-25 (A) Shares may be issued for such consideration <expressed in
30-26 dollars> as shall be fixed from time to time by the trust
30-27 manager(s). If the shares have a par value, the consideration for
31-1 the shares may not be less than the par value.
31-2 (B) The consideration paid for the issuance of shares shall
31-3 consist of any tangible or intangible benefit to the real estate
31-4 investment trust, including cash, promissory notes, services
31-5 performed, contracts for services to be performed, or other
31-6 securities of the real estate investment trust <money paid or
31-7 property actually received>. Shares may not be issued until the
31-8 full amount of the consideration has been paid. When such
31-9 consideration shall have been paid to the real estate investment
31-10 trust or to another entity of which all of the outstanding shares
31-11 of each class of capital stock are owned, directly or indirectly,
31-12 by the real estate investment trust, the shares shall be deemed to
31-13 have been issued, and the shareholder entitled to receive such
31-14 issue, shall be a shareholder with respect to such shares, and the
31-15 shares shall be considered fully paid and non-assessable.
31-16 (C) <Neither promissory notes nor the promise of future
31-17 services, nor past services shall constitute payment or part
31-18 payment for shares of a real estate investment trust.>
31-19 <(D)> In the absence of fraud in the transaction, the
31-20 judgment of the trust manager(s) or the shareholders, as the case
31-21 may be, as to the value of the consideration received for shares
31-22 shall be conclusive.
31-23 Sec. 7.40. TRANSFER OF SHARES AND OTHER SECURITIES AND
31-24 RESTRICTIONS ON TRANSFER. (A) Except as otherwise provided in
31-25 this Act, the shares and other securities of a real estate
31-26 investment trust are personal property for all purposes and are
31-27 transferable in accordance with Chapter 8, Business & Commerce
32-1 Code.
32-2 (B) A restriction on the transfer or registration of
32-3 transfer of a security may be imposed by the declaration of trust
32-4 or bylaws, or by a written agreement among any number of the
32-5 holders of the securities or a written agreement among any number
32-6 of the holders and the real estate investment trust, provided the
32-7 real estate investment trust places on file a counterpart of the
32-8 agreement at its principal place of business or its registered
32-9 office. The counterpart of the agreement shall be subject to the
32-10 same right of examination by a shareholder of the real estate
32-11 investment trust, in person or by agent, attorney, or accountant,
32-12 as are the books and records of the real estate investment trust.
32-13 A restriction on the transfer or registration of transfer of a
32-14 security imposed as described by this Subsection is not valid with
32-15 respect to any security issued before the adoption of the
32-16 restriction unless the holder of the security voted in favor of the
32-17 restriction or is a party to the agreement imposing the
32-18 restriction.
32-19 (C) Any restriction on the transfer or registration of
32-20 transfer of a security of a real estate investment trust shall be
32-21 specifically enforceable against the holder of the restricted
32-22 security or any successor or transferee of the holder if the
32-23 restriction is:
32-24 (1) reasonable and noted conspicuously on the
32-25 certificate or other instrument representing the security; or
32-26 (2) in the case of an uncertificated security,
32-27 reasonable and notation of the restriction is contained in the
33-1 notice sent pursuant to Subsection (D) of Section 7.20 of this Act
33-2 with respect to the security.
33-3 (D) A restriction, even though otherwise enforceable, is
33-4 ineffective against a transferee for value without actual knowledge
33-5 of the restriction at the time of the transfer or against any
33-6 subsequent transferee (whether or not for value), unless the
33-7 restriction is noted conspicuously on the certificate or other
33-8 instrument representing the security or, in the case of an
33-9 uncertificated security, notation of the restriction is contained
33-10 in the notice sent pursuant to Subsection (D) of Section 7.20 of
33-11 this Act with respect to the security. The restriction shall be
33-12 specifically enforceable against any other person who is not a
33-13 transferee for value from and after the time that the person
33-14 acquires actual knowledge of the existence of the restriction.
33-15 (E) In particular and without limiting the general power
33-16 granted in Subsections (B), (C), and (D) of this Section to impose
33-17 reasonable restrictions, a restriction on the transfer or
33-18 registration of transfer of securities of a real estate investment
33-19 trust is valid if it reasonably:
33-20 (1) obligates the holders of the restricted securities
33-21 to offer to the real estate investment trust or to any other
33-22 holders of securities of the real estate investment trust or to any
33-23 other person, or to any combination of those persons, a prior
33-24 opportunity, to be exercised within a reasonable time, to acquire
33-25 the restricted securities;
33-26 (2) obligates the real estate investment trust, to the
33-27 extent permitted by this Act, or any holder of securities of the
34-1 real estate investment trust or any other person, or any
34-2 combination of those persons, to purchase the securities that are
34-3 the subject of an agreement regarding the purchase and sale of the
34-4 restricted securities;
34-5 (3) requires the real estate investment trust or the
34-6 holders of any class of securities of the real estate investment
34-7 trust to consent to any proposed transfer of the restricted
34-8 securities or to approve the proposed transferee of the restricted
34-9 securities for the purpose of preventing violations of federal or
34-10 state laws;
34-11 (4) prohibits the transfer of the restricted
34-12 securities to designated persons or classes of persons, and the
34-13 designation is not manifestly unreasonable; or
34-14 (5) maintains any tax advantage to the real estate
34-15 investment trust, including maintaining its status as a real estate
34-16 investment trust under the applicable provisions of the Internal
34-17 Revenue Code of 1986 or the regulations adopted under that law.
34-18 (F)(1) A real estate investment trust that has adopted a
34-19 bylaw, or that is a party to an agreement restricting the transfer
34-20 of its shares or other securities, may file the bylaw or agreement
34-21 as a matter of public record with the county clerk of the county of
34-22 the principal place of business of the real estate investment
34-23 trust, as provided in this Subsection.
34-24 (2) The real estate investment trust shall file a copy
34-25 of the bylaw or agreement with the county clerk and a statement
34-26 attached to the copy setting forth:
34-27 (a) the name of the real estate investment
35-1 trust;
35-2 (b) that the copy of the bylaw or agreement is a
35-3 true and correct copy of the bylaw or agreement; and
35-4 (c) that the filing has been duly authorized by
35-5 the trust managers or the shareholders, as the case may be.
35-6 (3) The statement shall be executed by an officer on
35-7 behalf of the real estate investment trust.
35-8 (4) After the filing of the statement with the county
35-9 clerk, the bylaw or agreement restricting the transfer of shares or
35-10 other securities becomes a matter of public record and the fact of
35-11 the filing of the bylaw or agreement shall be stated on any
35-12 certificate representing the shares or other securities restricted
35-13 by the bylaw or agreement if required by Subsection (F) of Section
35-14 7.20 of this Act.
35-15 (G) By complying with the provisions of this Act or amending
35-16 the declaration of trust, a real estate investment trust that is a
35-17 party to an agreement restricting the transfer of its shares or
35-18 other securities may make that agreement part of its declaration of
35-19 trust without restating the provisions of the agreement in the
35-20 declaration of trust. If the agreement alters any provision of the
35-21 original or amended declaration of trust, the articles of amendment
35-22 must identify the altered provision by reference or description.
35-23 If the agreement is to be an addition to the original or amended
35-24 declaration of trust, the articles of amendment shall state that
35-25 fact. A copy of the agreement restricting the transfer of shares
35-26 or other securities must be attached to the articles of amendment.
35-27 The articles of amendment shall state that the attached copy of the
36-1 agreement is a true and correct copy of the agreement and that its
36-2 inclusion as part of the declaration of trust has been duly
36-3 authorized in the manner required by this Act to amend the
36-4 declaration of trust.
36-5 (H) When shares are registered on the books of a real estate
36-6 investment trust in the names of two or more persons as joint
36-7 owners with the right of survivorship, after the death of a joint
36-8 owner and before the time that the real estate investment trust
36-9 receives actual written notice that parties other than the
36-10 surviving joint owner or owners claim an interest in the shares of
36-11 or any distributions from the real estate investment trust, the
36-12 real estate investment trust may record on its books and otherwise
36-13 effect the transfer of those shares to any person, firm, or entity
36-14 (including that surviving joint owner individually) and may pay any
36-15 distributions made in respect of those shares, in each case as if
36-16 the surviving joint owner or owners were the absolute owners of the
36-17 shares. A real estate investment trust permitting such a transfer
36-18 by and making any distribution to a surviving joint owner or owners
36-19 before the receipt of written notice from other parties claiming an
36-20 interest in those shares or distributions is discharged from all
36-21 liability for the transfer or payment so made; provided, however,
36-22 that the discharge of the real estate investment trust from
36-23 liability and the transfer of full legal and equitable title of the
36-24 shares does not affect, reduce, or limit any cause of action
36-25 existing in favor of any owner of an interest in those shares or
36-26 distributions against the surviving owner or owners.
36-27 Sec. 8.10 <8>. LIABILITY OF SUBSCRIBERS AND SHAREHOLDERS.
37-1 (A) A holder of shares, an owner of any beneficial interest in
37-2 shares, or a subscriber for shares whose subscription has been
37-3 accepted is not under an obligation to the real estate investment
37-4 trust or to its obligees with respect to:
37-5 (1) the shares other than the obligation to pay to the
37-6 real estate investment trust the full amount of the consideration,
37-7 fixed in compliance with Section 7.30 of this Act, for which the
37-8 shares were or are to be issued;
37-9 (2) any contractual obligation of the real estate
37-10 investment trust on the basis that the holder, owner, or subscriber
37-11 is or was the alter ego of the real estate investment trust, or on
37-12 the basis of actual fraud or constructive fraud, a sham to
37-13 perpetrate a fraud, or other similar theory, unless the obligee
37-14 demonstrates that the holder, owner, or subscriber caused the real
37-15 estate investment trust to be used for the purpose of perpetrating
37-16 and did perpetrate an actual fraud on the obligee primarily for the
37-17 direct personal benefit of the holder, owner, or subscriber; or
37-18 (3) any obligation of the real estate investment trust
37-19 on the basis of the failure of the real estate investment trust to
37-20 observe any formality, including the failure to:
37-21 (a) comply with any requirement of this Act or
37-22 of the declaration of trust or bylaws of the real estate investment
37-23 trust; or
37-24 (b) observe any requirement prescribed by this
37-25 Act or by the declaration of trust or bylaws for acts taken by the
37-26 real estate investment trust, its trust managers, or its
37-27 shareholders.
38-1 (B) The liability of a holder, owner, or subscriber of
38-2 shares of a real estate investment trust for an obligation that is
38-3 limited by Subsection (A) of this Section is exclusive and preempts
38-4 any other liability imposed on a holder, owner, or subscriber of
38-5 shares of a real estate investment trust for that obligation under
38-6 common law or otherwise, except that this Section does not limit
38-7 the obligation of a holder, owner, or subscriber to an obligee of
38-8 the real estate investment trust when:
38-9 (1) the holder, owner, or subscriber has expressly
38-10 assumed, guaranteed, or agreed to be personally liable to the
38-11 obligee for the obligation; or
38-12 (2) the holder, owner, or subscriber is otherwise
38-13 liable to the obligee for the obligation under this Act or another
38-14 applicable statute <a certificate of shares shall not be personally
38-15 or individually liable in any manner whatsoever for any debt, act,
38-16 omission or obligation incurred by the trust or the trust
38-17 manager(s) and shall be under no obligation to the trust or to its
38-18 creditors with respect to such shares other than the obligation to
38-19 pay to the trust the full amount of the consideration for which
38-20 such shares were issued or to be issued>.
38-21 (C) <(B)> Any person becoming an assignee or transferee of
38-22 certificated shares or of uncertificated shares or of a
38-23 subscription for <a certificate of> shares in good faith and
38-24 without knowledge or notice that the full consideration therefor
38-25 has not been paid to the real estate investment trust shall not be
38-26 personally liable to the real estate investment trust or its
38-27 creditors for any unpaid portion of such consideration.
39-1 (D) <(C)> An executor, administrator, conservator, guardian,
39-2 trustee, assignee for the benefit of creditors, or receiver, shall
39-3 not be liable personally as a holder of shares of a real estate
39-4 investment trust, but the estate and funds in his hands shall be
39-5 liable to pay to the real estate investment trust the full amount
39-6 of the consideration for which such shares were issued or to be
39-7 issued.
39-8 (E) <(D)> No pledgee or other holder of shares as collateral
39-9 security shall be personally liable as a shareholder.
39-10 <(E) No real estate investment trust may impose restrictions
39-11 on the sale or other disposition of its shares and on the transfer
39-12 thereof.>
39-13 Sec. 9.10 <9>. BYLAWS <By-laws>. (A) The initial bylaws
39-14 <by-laws> of the real estate investment trust shall be adopted by
39-15 the trust manager(s) <or the shareholders>. The bylaws <by-laws>
39-16 may contain any provisions for the regulation and management of the
39-17 affairs of the real estate investment trust not inconsistent with
39-18 law or the declaration of trust.
39-19 (B) The trust manager(s) of a real estate investment trust
39-20 may amend or repeal the real estate investment trust's bylaws
39-21 <by-laws>, or adopt new bylaws <by-laws>, unless:
39-22 (1) the declaration of trust or this Act reserves the
39-23 power exclusively to the shareholders in whole or part; or
39-24 (2) the shareholders in amending, repealing, or
39-25 adopting a particular bylaw provision <by-law> expressly provide
39-26 that the trust manager(s) may not amend or repeal that bylaw
39-27 <by-law>.
40-1 (C) Unless the declaration of trust or a bylaw <by-law>
40-2 adopted by the shareholders provides otherwise as to all or some
40-3 portion of a real estate investment trust's bylaws <by-laws>, a
40-4 real estate investment trust's shareholders may amend, repeal, or
40-5 adopt the real estate investment trust's bylaws <by-laws> even
40-6 though the bylaws <by-laws> may also be amended, repealed, or
40-7 adopted by its trust manager(s).
40-8 Sec. 9.20 <9.1>. Indemnification. (A) In this Section:
40-9 (1) "Trust Manager" means any person who is or was a
40-10 trust manager of the real estate investment trust and any person
40-11 who, while a trust manager of the real estate investment trust, is
40-12 or was serving, at the request of the real estate investment trust
40-13 as a trust manager, director, officer, partner, venturer,
40-14 proprietor, trustee, employee, agent, or similar functionary of
40-15 another real estate investment trust, foreign or domestic
40-16 corporation, partnership, joint venture, sole proprietorship,
40-17 trust, employee benefit plan, or other enterprise.
40-18 (2) "Expenses" include court costs and attorney's
40-19 fees.
40-20 (3) "Official capacity":
40-21 (a) when used with respect to a trust manager,
40-22 means the office of trust manager in the real estate investment
40-23 trust; and
40-24 (b) when used with respect to a person other
40-25 than a trust manager, means the elective or appointive office in
40-26 the real estate investment trust held by the officer or the
40-27 employment or agency relationship undertaken by the employee or
41-1 agent in behalf of the real estate investment trust; but
41-2 (c) in both paragraphs (a) and (b) does not
41-3 include service for any other real estate investment trust or
41-4 foreign or domestic corporation or any partnership, joint venture,
41-5 sole proprietorship, trust, employee benefit plan, or other
41-6 enterprise.
41-7 (4) "Proceeding" means any threatened, pending, or
41-8 completed action, suit, or proceeding, whether civil, criminal,
41-9 administrative, arbitrative, or investigative, any appeal in such
41-10 an action, suit, or proceeding, and any inquiry or investigation
41-11 that could lead to such an action, suit, or proceeding.
41-12 (5) "Real estate investment trust" includes any
41-13 domestic or foreign predecessor of the real estate investment trust
41-14 in a merger, consolidation, or other transaction in which the
41-15 liabilities of the predecessor are transferred to the real estate
41-16 investment trust by operation of law and in any other transaction
41-17 in which the real estate investment trust assumes the liabilities
41-18 of the predecessor but does not specifically exclude liabilities
41-19 that are the subject matter of this Section.
41-20 (B) A real estate investment trust may indemnify a person
41-21 who was, is, or is threatened to be made a named defendant or
41-22 respondent in a proceeding because the person is or was a trust
41-23 manager only if it is determined in accordance with Subsection (F)
41-24 of this Section that the person:
41-25 (1) conducted himself in good faith;
41-26 (2) reasonably believed:
41-27 (a) in the case of conduct in his official
42-1 capacity as a trust manager of the real estate investment trust,
42-2 that his conduct was in the real estate investment trust's best
42-3 interests; and
42-4 (b) in all other cases, that his conduct was at
42-5 least not opposed to the real estate investment trust's best
42-6 interests; and
42-7 (3) in the case of any criminal proceeding, had no
42-8 reasonable cause to believe that his conduct was unlawful.
42-9 (C) Except to the extent permitted by Subsection (E) of this
42-10 Section, a trust manager may not be indemnified under Subsection
42-11 (B) of this Section in respect of a proceeding:
42-12 (1) in which the person is found liable on the basis
42-13 that personal benefit was improperly received by him, whether or
42-14 not the benefit resulted from an action taken in the person's
42-15 official capacity; or
42-16 (2) in which the person is found liable to the real
42-17 estate investment trust.
42-18 (D) The termination of a proceeding by judgment, order,
42-19 settlement, or conviction, or on a plea of nolo contendere or its
42-20 equivalent is not of itself determinative that the person did not
42-21 meet the requirements set forth in Subsection (B) of this Section.
42-22 A person shall be deemed to have been found liable in respect of
42-23 any claim, issue, or matter only after the person shall have been
42-24 so adjudged by a court of competent jurisdiction after exhaustion
42-25 of all appeals therefrom.
42-26 (E) A person may be indemnified under Subsection (B) of this
42-27 Section against judgments, penalties (including excise and similar
43-1 taxes), fines, settlements, and reasonable expenses actually
43-2 incurred by the person in connection with the proceeding; but if
43-3 the person is found liable to the real estate investment trust or
43-4 is found liable on the basis that personal benefit was improperly
43-5 received by the person, the indemnification (1) is limited to
43-6 reasonable expenses actually incurred by the person in connection
43-7 with the proceeding, and (2) shall not be made in respect of any
43-8 proceeding in which the person shall have been found liable for
43-9 wilful or intentional misconduct in the performance of his duty to
43-10 the real estate investment trust.
43-11 (F) A determination to furnish indemnification under
43-12 Subsection (B) of this Section shall be made only:
43-13 (1) by a majority vote of a quorum consisting of trust
43-14 managers who at the time of the vote are not named defendants or
43-15 respondents in the proceeding;
43-16 (2) if such a quorum cannot be obtained, by a majority
43-17 vote of a committee of the trust managers, designated to act in the
43-18 matter by a majority vote of all trust managers, consisting solely
43-19 of two or more trust managers who at the time of the vote are not
43-20 named defendants or respondents in the proceeding;
43-21 (3) by special legal counsel selected by the trust
43-22 managers or a committee thereof by vote as set forth in Subdivision
43-23 (1) or (2) of this Subsection, or, if such a quorum cannot be
43-24 obtained and such a committee cannot be established, by a majority
43-25 vote of all trust managers; or
43-26 (4) by the shareholders in a vote that excludes the
43-27 shares of beneficial interest held by trust managers who are named
44-1 defendants or respondents in the proceeding.
44-2 (G) Authorization of indemnification and determination as to
44-3 reasonableness of expenses must be made in the same manner as the
44-4 determination that indemnification is permissible, except that if
44-5 the determination that indemnification is permissible is made by
44-6 special legal counsel, authorization of indemnification and
44-7 determination as to reasonableness of expenses must be made in the
44-8 manner specified by Subdivision (3) of Subsection (F) of this
44-9 Section for the selection of special legal counsel. A provision
44-10 contained in the declaration of trust, the bylaws <by-laws>, or an
44-11 agreement that makes mandatory the indemnification permitted under
44-12 Subsection (B) of this Section shall be deemed to constitute
44-13 authorization of indemnification in the manner required by this
44-14 Subsection <paragraph> even though such provision may not have been
44-15 adopted or authorized in the same manner as the determination that
44-16 indemnification is permissible.
44-17 (H) A real estate investment trust shall indemnify a trust
44-18 manager against reasonable expenses incurred by him in connection
44-19 with a proceeding in which he is a named defendant or respondent
44-20 because he is or was a trust manager if he has been wholly
44-21 successful, on the merits or otherwise, in the defense of the
44-22 proceeding.
44-23 (I) If, in a suit for the indemnification required by
44-24 Subsection (H) of this Section, a court of competent jurisdiction
44-25 determines that the trust manager is entitled to indemnification
44-26 under that Subsection, the court shall order indemnification and
44-27 shall award to the trust manager the expenses incurred in securing
45-1 the indemnification.
45-2 (J) If, upon application of a trust manager, a court of
45-3 competent jurisdiction determines, after giving any notice the
45-4 court considers necessary, that the trust manager is fairly and
45-5 reasonably entitled to indemnification in view of all the relevant
45-6 circumstances, whether or not he has met the requirements set forth
45-7 in Subsection (B) of this Section or has been found liable in the
45-8 circumstances described by Subsection (C) of this Section, the
45-9 court may order the indemnification that the court determines is
45-10 proper and equitable; but if the trust manager is found liable to
45-11 the real estate investment trust or is found liable on the basis
45-12 that personal benefit was improperly received by the trust manager,
45-13 the indemnification shall be limited to reasonable expenses
45-14 actually incurred by the trust manager in connection with the
45-15 proceeding.
45-16 (K) Reasonable expenses incurred by a trust manager who was,
45-17 is, or is threatened to be made a named defendant or respondent in
45-18 a proceeding may be paid or reimbursed by the real estate
45-19 investment trust, in advance of the final disposition of the
45-20 proceeding and without the determination specified in Subsection
45-21 (F) of this Section or the authorization or determination specified
45-22 in Subsection (G) of this Section, after the real estate investment
45-23 trust receives a written affirmation by the trust manager of his
45-24 good faith belief that he has met the standard of conduct necessary
45-25 for indemnification under this Section and a written undertaking by
45-26 or on behalf of the trust manager to repay the amount paid or
45-27 reimbursed if it is ultimately determined that he has not met that
46-1 standard or if it is ultimately determined that indemnification of
46-2 the trust manager against expenses incurred by him in connection
46-3 with that proceeding is prohibited by Subsection (E) of this
46-4 Section. A provision contained in the declaration of trust, the
46-5 bylaws, a resolution of shareholders or trust managers <by-laws>,
46-6 or an agreement that makes mandatory the payment or reimbursement
46-7 permitted under this Subsection shall be deemed to constitute
46-8 authorization of that payment or reimbursement.
46-9 (L) The written undertaking required by Subsection (K) of
46-10 this Section must be an unlimited general obligation of the trust
46-11 manager but need not be secured. It may be accepted without
46-12 reference to financial ability to make repayment.
46-13 (M) A provision for a real estate investment trust to
46-14 indemnify or to advance expenses to a trust manager who was, is, or
46-15 is threatened to be made a named defendant or respondent in a
46-16 proceeding, whether contained in the declaration of trust, the
46-17 bylaws, a resolution of shareholders or trust managers <by-laws>,
46-18 an agreement, or otherwise, except in accordance with Subsection
46-19 (R) of this Section, is valid only to the extent it is consistent
46-20 with this Section as limited by the declaration of trust, if such a
46-21 limitation exists.
46-22 (N) Notwithstanding any other provision of this Section, a
46-23 real estate investment trust may pay or reimburse expenses incurred
46-24 by a trust manager in connection with his appearance as a witness
46-25 or other participation in a proceeding at a time when he is not a
46-26 named defendant or respondent in the proceeding.
46-27 (O) An officer of the real estate investment trust shall be
47-1 indemnified as, and to the same extent, provided by Subsections
47-2 (H), (I), and (J) of this Section for a trust manager and is
47-3 entitled to seek indemnification under those Subsections <Sections>
47-4 to the same extent as a trust manager. A real estate investment
47-5 trust may indemnify and advance expenses to an officer, employee,
47-6 or agent of the real estate investment trust to the same extent
47-7 that it may indemnify and advance expenses to trust managers under
47-8 this Section.
47-9 (P) A real estate investment trust may indemnify and advance
47-10 expenses to persons who are not or were not officers, employees, or
47-11 agents of the real estate investment trust but who are or were
47-12 serving at the request of the real estate investment trust as a
47-13 trust manager, director, officer, partner, venturer, proprietor,
47-14 trustee, employee, agent, or similar functionary of another real
47-15 estate investment trust or of a foreign or domestic corporation,
47-16 partnership, joint venture, sole proprietorship, trust, employee
47-17 benefit plan, or other enterprise to the same extent that it may
47-18 indemnify and advance expenses to trust managers under this
47-19 Section.
47-20 (Q) A real estate investment trust may indemnify and advance
47-21 expenses to an officer, employee, agent, or person identified in
47-22 Subsection (P) of this Section and who is not a trust manager to
47-23 such further extent, consistent with law, as may be provided by its
47-24 declaration of trust, bylaws <by-laws>, general or specific action
47-25 of its trust managers, or contract or as permitted or required by
47-26 common law.
47-27 (R) A real estate investment trust may purchase and maintain
48-1 insurance or another arrangement on behalf of any person who is or
48-2 was a trust manager officer, employee, or agent of the real estate
48-3 investment trust or who is or was serving at the request of the
48-4 real estate investment trust as a trust manager or a director,
48-5 officer, partner, venturer, proprietor, trustee, employee, agent,
48-6 or similar functionary of another real estate investment trust or
48-7 of a foreign or domestic corporation, partnership, joint venture,
48-8 sole proprietorship, trust, employee benefit plan, or other
48-9 enterprise, against any liability asserted against him and incurred
48-10 by him in such a capacity or arising out of his status as such a
48-11 person, whether or not the real estate investment trust would have
48-12 the power to indemnify him against that liability under this
48-13 Section. If the insurance or other arrangement is with a person or
48-14 entity that is not regularly engaged in the business of providing
48-15 insurance coverage, the insurance or arrangement may provide for
48-16 payment of a liability with respect to which the real estate
48-17 investment trust would not have the power to indemnify the person
48-18 only if including coverage for the additional liability has been
48-19 approved by the shareholders of the real estate investment trust.
48-20 Without limiting the power of the real estate investment trust to
48-21 procure or maintain any kind of insurance or other arrangement, a
48-22 real estate investment trust may, for the benefit of persons
48-23 indemnified by the real estate investment trust, (1) create a trust
48-24 fund; (2) establish any form of self-insurance; (3) secure its
48-25 indemnity obligation by grant of a security interest or other lien
48-26 on the assets of the real estate investment trust; or (4) establish
48-27 a letter of credit, guaranty, or surety arrangement. The insurance
49-1 or other arrangement may be procured, maintained, or established
49-2 within the real estate investment trust or with any insurer or
49-3 other person deemed appropriate by the trust manager(s) regardless
49-4 of whether all or part of the stock or other securities of the
49-5 insurer or other person are owned in whole or part by the real
49-6 estate investment trust. In the absence of fraud, the judgment of
49-7 the trust manager(s) as to the terms and conditions of the
49-8 insurance or other arrangement and the identity of the insurer or
49-9 other person participating in an arrangement shall be conclusive
49-10 and the insurance or arrangement shall not be voidable and shall
49-11 not subject the trust manager(s) approving the insurance or
49-12 arrangement to liability, on any ground, regardless of whether a
49-13 trust manager participating in the approval is a beneficiary of the
49-14 insurance or arrangement.
49-15 (S) Any indemnification of or advance of expenses to any
49-16 person who is or was a trust manager, officer, employee, or agent
49-17 of the real estate investment trust or who is or was serving at the
49-18 request of the real estate investment trust as a trust manager or a
49-19 director, officer, partner, venturer, proprietor, trustee,
49-20 employee, agent, or similar functionary of another real estate
49-21 investment trust or of a foreign or domestic corporation,
49-22 partnership, joint venture, sole proprietorship, trust, employee
49-23 benefit plan, or other enterprise in accordance with this Section
49-24 shall be reported in writing to the shareholders with or before the
49-25 notice or waiver of notice of the next shareholders meeting or with
49-26 or before the next submission to shareholders of a consent to
49-27 action without a meeting pursuant to Section 10.30 <10.2> of this
50-1 Act and, in any case, within the 12-month period immediately
50-2 following the date of the indemnification or advance.
50-3 (T) For purposes of this Section, the real estate investment
50-4 trust is deemed to have requested a trust manager to serve an
50-5 employee benefit plan whenever the performance by him of his duties
50-6 to the real estate investment trust also imposes duties on or
50-7 otherwise involves services by him to the plan or participants or
50-8 beneficiaries of the plan. Excise taxes assessed on a trust
50-9 manager with respect to an employee benefit plan pursuant to
50-10 applicable law are deemed fines. Action taken or omitted by him
50-11 with respect to an employee benefit plan in the performance of his
50-12 duties for a purpose reasonably believed by him to be in the
50-13 interest of the participants and beneficiaries of the plan is
50-14 deemed to be for a purpose which is not opposed to the best
50-15 interests of the real estate investment trust.
50-16 (U) The declaration of trust of a real estate investment
50-17 trust may restrict the circumstances under which the real estate
50-18 investment trust is required or permitted to indemnify a person
50-19 under Subsection (H), (I), (J), (O), (P), or (Q) of this Section.
50-20 Sec. 10.10 <10>. Meetings of Shareholders. (A) Meetings of
50-21 shareholders shall be held at such place, either within or without
50-22 the state, as may be provided in the bylaws <by-laws>. In the
50-23 absence of any such provision, all meetings shall be held at the
50-24 principal office of the real estate investment trust.
50-25 (B) An annual meeting of the shareholders shall be held at
50-26 such time as may be provided in the bylaws <by-laws>. In the event
50-27 the trust manager(s) fail to call the annual meeting at the
51-1 designated time, any shareholder may make demand that such meeting
51-2 be held within a reasonable time, such demand to be made in writing
51-3 by registered mail directly to any officer or trust manager of the
51-4 real estate investment trust. If the annual meeting of the
51-5 shareholders is not called within sixty (60) days following such
51-6 demand, any shareholder may compel the holding of such annual
51-7 meeting by legal action directed against said trust manager(s), and
51-8 all of the extraordinary writs of the common law and of a court of
51-9 equity shall be available to such shareholder to compel the holding
51-10 of such annual meeting. Each and every shareholder is hereby
51-11 declared to have a justiciable interest sufficient to enable him to
51-12 institute and prosecute such legal proceedings. Failure to hold
51-13 the annual meeting at the designated time may not cause the
51-14 dissolution of the real estate investment trust.
51-15 (C) Special meetings of the shareholders may be called by
51-16 the trust manager(s), any officer of the real estate investment
51-17 trust, <the holders of not less than one-tenth (1/10) of all the
51-18 shares entitled to vote at the meetings,> or such other persons as
51-19 may be provided in the declaration of trust or the bylaws. Special
51-20 meetings of the shareholders may also be called by the holders of
51-21 at least 10 percent of all the shares entitled to vote at the
51-22 proposed special meeting, unless the declaration of trust provides
51-23 for a number of shares greater than or less than 10 percent, in
51-24 which event special meetings of the shareholders may be called by
51-25 the holders of at least the percentage of shares so specified in
51-26 the declaration of trust. The declaration of trust may not provide
51-27 for a number of shares greater than 50 percent <by-laws>.
52-1 Sec. 10.20 <10.1>. Trust manager meetings and notice of
52-2 meetings. (A) Meetings of the trust manager(s), whether regular
52-3 or special, may be held either within or without this State.
52-4 (B) Regular meetings of the trust manager(s) may be held
52-5 with or without notice as prescribed in the bylaws <by-laws>.
52-6 Special meetings of the trust manager(s) shall be held upon such
52-7 notice as is prescribed in the bylaws <by-laws>. Attendance of a
52-8 trust manager at a meeting shall constitute a waiver of notice of
52-9 such meeting, except where a trust manager attends a meeting for
52-10 the express purpose of objecting to the transaction of any business
52-11 on the ground that the meeting is not lawfully called or convened.
52-12 Neither the business to be transacted at, nor the purpose of, any
52-13 regular or special meeting of the trust manager(s) need be
52-14 specified in the notice or waiver of notice of such meeting, unless
52-15 required by the bylaws <by-laws>.
52-16 Sec. 10.30 <10.2>. Actions without a meeting;<:> telephone
52-17 meetings. (A) Unless otherwise provided by the declaration of
52-18 trust or bylaws, any <Any> action required or permitted <by this
52-19 Act> to be taken at a meeting of the shareholders of a real estate
52-20 investment trust<, or any action which may be taken at a meeting of
52-21 the shareholders,> may be taken without a meeting if a consent in
52-22 writing, setting forth the action so taken, shall be signed by all
52-23 of the shareholders entitled to vote with respect to the subject
52-24 matter thereof. Such action<, and such consent> shall then have
52-25 the same force and effect as action taken at a meeting <a unanimous
52-26 vote of shareholders>, and may be stated as such in any declaration
52-27 of trust or document filed with the county clerk of the county of
53-1 the principal place of business of the real estate investment trust
53-2 <or with the secretary of state>.
53-3 (B) Unless otherwise provided <restricted> by the
53-4 declaration of trust or bylaws <by-laws>, any action required or
53-5 permitted to be taken at a meeting of the trust manager(s) or any
53-6 committee may be taken without a meeting if a consent in writing,
53-7 setting forth the action so taken, is signed by all the trust
53-8 managers or members of such committee, as the case may be. Such
53-9 action <consent> shall then have the same force and effect as
53-10 action taken <a unanimous vote> at a meeting, and may be stated as
53-11 such in any document or instrument filed with the county clerk of
53-12 the county of the principal place of business of the trust <or with
53-13 the secretary of state>.
53-14 (C) Subject to the provisions required or permitted by this
53-15 Act for notice of meetings, unless otherwise restricted by the
53-16 declaration of trust or bylaws <by-laws>, shareholders, trust
53-17 manager(s), or members of any committee designated by such trust
53-18 manager(s), may participate in and hold a meeting of such
53-19 shareholders, trust manager(s) or committee by means of conference
53-20 telephone or similar communications equipment by means of which all
53-21 persons participating in the meeting can hear each other, and
53-22 participation in a meeting pursuant to this Section shall
53-23 constitute presence in person at such meeting, except where a
53-24 person participates in the meeting for the express purpose of
53-25 objecting to the transaction of any business on the ground that the
53-26 meeting is not lawfully called or convened.
53-27 (D) If action is taken with respect to a particular matter
54-1 by the holders of shares of a class or series by means of a written
54-2 consent in compliance with Subsection (A) of this Section, any
54-3 provision of this Act that requires advance notice of a meeting or
54-4 of the proposed action does not apply as to that class or series
54-5 for that action.
54-6 Sec. 11.10 <11>. Notice of shareholders meetings.
54-7 (A) Written or printed notice stating the place, day and hour of
54-8 the meeting and, in case of a special meeting, the purpose or
54-9 purposes for which the meeting is called, shall be delivered not
54-10 less than ten (10) nor more than sixty (60) days before the date of
54-11 the meeting, either personally or by mail, by or at the direction
54-12 of the trust manager(s) or any officer or person calling the
54-13 meeting, to each shareholder of record entitled to vote at such
54-14 meeting. If mailed, such notice shall be deemed to be delivered
54-15 when deposited in the United States Mail addressed to the
54-16 shareholder at his address as it appears on the books of the trust,
54-17 with postage thereon prepaid.
54-18 (B) Any notice otherwise required to be given to any
54-19 shareholder under this Act or the declaration of trust or bylaws of
54-20 any real estate investment trust is not required for the
54-21 shareholder if:
54-22 (1) notice of two consecutive annual meetings and all
54-23 notices of meetings held during the period between those annual
54-24 meetings, if any, have been mailed to the shareholder at the
54-25 address shown on the share transfer records of the real estate
54-26 investment trust and the notice has been returned undeliverable; or
54-27 (2) all (but in no event less than two) payments (if
55-1 sent by first class mail) of distributions or interest on
55-2 securities during a 12-month period have been mailed to the
55-3 shareholder at the address shown on the share transfer records of
55-4 the real estate investment trust, and the payments have been
55-5 returned undeliverable.
55-6 (C) Any action or meeting taken or held without notice to a
55-7 shareholder described by Subsection (B) of this Section has the
55-8 same force and effect as if the notice had been duly given to the
55-9 shareholder. If the action taken by the real estate investment
55-10 trust is reflected in any document filed with the secretary of
55-11 state, that document may state that notice was duly given to all
55-12 persons to whom notice was required to be given. If a shareholder
55-13 described by Subsection (B) of this Section delivers to the real
55-14 estate investment trust a written notice setting forth the
55-15 shareholder's current address, the requirement that notice be given
55-16 to the shareholder shall be reinstated.
55-17 Sec. 11.20. REGISTERED HOLDERS OF SHARES, CLOSING OF SHARE
55-18 TRANSFER RECORDS, AND RECORD DATE. (A) Unless otherwise provided
55-19 in this Act, and subject to the provisions of Chapter 8, Business &
55-20 Commerce Code, a real estate investment trust may regard the person
55-21 in whose name any shares issued by the real estate investment trust
55-22 are registered in the share transfer records of the real estate
55-23 investment trust at any particular time, including shares
55-24 registered as of a record date fixed under Subsection (C) or (D) of
55-25 this Section, as the owner of those shares at that time for
55-26 purposes of:
55-27 (1) voting those shares;
56-1 (2) receiving distributions on or notices in respect
56-2 of those shares;
56-3 (3) transferring those shares;
56-4 (4) exercising rights of dissent with respect to those
56-5 shares;
56-6 (5) exercising or waiving any preemptive right with
56-7 respect to those shares;
56-8 (6) entering into agreements with respect to those
56-9 shares in accordance with Section 7.40 or 13.20 of this Act; or
56-10 (7) giving proxies with respect to those shares.
56-11 (B) Neither the real estate investment trust nor any of the
56-12 officers, trust managers, employees, or agents of the real estate
56-13 investment trust are liable for regarding a person described by
56-14 Subsection (A) of this Section as the owner of those shares at that
56-15 time for those purposes, regardless of whether that person does not
56-16 possess a certificate for those shares.
56-17 (C) For the purpose of determining shareholders entitled to
56-18 notice of or to vote at any meeting of shareholders or any
56-19 adjournment of a meeting of shareholders, or shareholders entitled
56-20 to receive a distribution by a real estate investment trust (other
56-21 than a distribution involving a purchase or redemption by the real
56-22 estate investment trust of any of its own shares) or a share
56-23 dividend, or in order to make a determination of shareholders for
56-24 any other proper purpose (other than determining shareholders
56-25 entitled to consent to action by shareholders proposed to be taken
56-26 without a meeting of shareholders), the trust managers of a real
56-27 estate investment trust may provide that the share transfer records
57-1 shall be closed for a stated period not to exceed 60 days. If the
57-2 share transfer records are closed for the purpose of determining
57-3 shareholders entitled to notice of or to vote at a meeting of
57-4 shareholders, the share transfer records shall be closed for at
57-5 least 10 days immediately before the meeting. In lieu of closing
57-6 the share transfer records, the bylaws, or in the absence of an
57-7 applicable bylaw, the trust managers, may fix in advance a date as
57-8 the record date for the determination of shareholders. The record
57-9 date for any such determination of shareholders may not be more
57-10 than 60 days and, in the case of a meeting of shareholders, not
57-11 less than 10 days, before the date on which the particular action
57-12 requiring the determination of shareholders is to be taken. If the
57-13 share transfer records are not closed and no record date is fixed
57-14 for the determination of shareholders entitled to notice of or to
57-15 vote at a meeting of shareholders, or shareholders entitled to
57-16 receive a distribution (other than a distribution involving a
57-17 purchase or redemption by the real estate investment trust of any
57-18 of its own shares) or a share dividend, the date on which notice of
57-19 the meeting is mailed or the date on which the resolution of the
57-20 trust managers declaring such distribution or share dividend is
57-21 adopted, as the case may be, shall be the record date for such
57-22 determination of shareholders. When a determination of
57-23 shareholders entitled to vote at any meeting of shareholders has
57-24 been made in the manner provided in this Section, the determination
57-25 of shareholders shall apply to any adjournment of the meeting of
57-26 shareholders except where the determination has been made through
57-27 the closing of the share transfer records and the stated period of
58-1 closing has expired.
58-2 (D) Unless a record date has previously been fixed or
58-3 determined under this Section, when action by shareholders is
58-4 proposed to be taken by written consent without a meeting of
58-5 shareholders, the trust managers may fix a record date for the
58-6 purpose of determining shareholders entitled to consent to that
58-7 action. The record date may not precede and may not be more than
58-8 10 days after the date on which the trust managers adopt the
58-9 resolution fixing the record date. If no record date has been
58-10 fixed by the trust managers and the prior action of the trust
58-11 managers is not required by this Act, the record date for
58-12 determining shareholders entitled to consent to action in writing
58-13 without a meeting shall be the first date on which a signed written
58-14 consent setting forth the action taken or proposed to be taken is
58-15 delivered by hand or by certified or registered mail, return
58-16 receipt requested, to the real estate investment trust as provided
58-17 by Subsection (A) of Section 10.30 of this Act. Delivery to the
58-18 real estate investment trust's principal place of business shall be
58-19 addressed to the president or the principal executive officer of
58-20 the real estate investment trust. If no record date shall have
58-21 been fixed by the trust managers and prior action of the trust
58-22 managers is required by this Act, the record date for determining
58-23 shareholders entitled to consent to action in writing without a
58-24 meeting shall be at the close of business on the date on which the
58-25 trust managers adopt a resolution taking such prior action.
58-26 (E) Distributions made by a real estate investment trust,
58-27 including those distributions that were payable but not paid to a
59-1 holder of shares or to the holder's heirs, successors, or assigns
59-2 and have been held in suspense by the real estate investment trust
59-3 or were paid or delivered by the real estate investment trust into
59-4 an escrow account or to a trustee or custodian, shall be payable by
59-5 the real estate investment trust, escrow agent, trustee, or
59-6 custodian of the distributions to the holder of the shares as of
59-7 the record date determined for that distribution as provided in
59-8 Subsection (C) of this Section, or to the holder's heirs,
59-9 successors, or assigns.
59-10 Sec. 12.10 <12>. QUORUM OF AND VOTING BY SHAREHOLDERS.
59-11 (A) Unless otherwise provided in the declaration of trust in
59-12 accordance with this Section, with respect to any meeting of
59-13 shareholders, a quorum shall be present for any matter to be
59-14 presented at that meeting if the holders of a majority of the
59-15 shares entitled to vote at the meeting are represented at the
59-16 meeting in person or by proxy. The declaration of trust may
59-17 provide:
59-18 (1) that a quorum is present at a meeting of
59-19 shareholders only if the holders of a specified greater portion of
59-20 the shares entitled to vote are represented at the meeting in
59-21 person or by proxy; or
59-22 (2) that a quorum is present at a meeting of
59-23 shareholders if the holders of a specified lesser portion, but not
59-24 less than one-third, of the shares entitled to vote are represented
59-25 at the meeting in person or by proxy.
59-26 (B) Unless otherwise provided in the declaration of trust or
59-27 the bylaws, once a quorum is present at a meeting of shareholders,
60-1 the shareholders represented in person or by proxy at the meeting
60-2 may conduct such business as may be properly brought before the
60-3 meeting until the meeting is adjourned. The subsequent withdrawal
60-4 of any shareholder from the meeting or the refusal of any
60-5 shareholder represented in person or by proxy to vote does not
60-6 affect the presence of a quorum at the meeting. Unless otherwise
60-7 provided in the declaration of trust or the bylaws, the
60-8 shareholders represented in person or by proxy at a meeting of
60-9 shareholders at which a quorum is not present may adjourn the
60-10 meeting until such time and to such place as may be determined by a
60-11 vote of the holders of a majority of the shares represented in
60-12 person or by proxy at that meeting.
60-13 (C) With respect to any matter, other than the election of
60-14 trust managers or a matter for which the affirmative vote of the
60-15 holders of a specified portion of the shares entitled to vote is
60-16 required by this Act, the affirmative vote of the holders of a
60-17 majority of the shares entitled to vote on, and that voted for or
60-18 against or expressly abstained with respect to, that matter at a
60-19 meeting of shareholders at which a quorum is present shall be the
60-20 act of the shareholders, unless otherwise provided in the
60-21 declaration of trust or the bylaws in accordance with this Section.
60-22 With respect to any matter, other than the election of trust
60-23 managers or a matter for which the affirmative vote of the holders
60-24 of a specified portion of the shares entitled to vote is required
60-25 by this Act, the declaration of trust or the bylaws may provide:
60-26 (1) that the act of the shareholders shall be the
60-27 affirmative vote of the holders of a specified portion, but not
61-1 less than a majority, of the shares entitled to vote on that
61-2 matter;
61-3 (2) that the act of the shareholders shall be the
61-4 affirmative vote of the holders of a specified portion, but not
61-5 less than a majority, of the shares entitled to vote on that matter
61-6 and represented in person or by proxy at a meeting of shareholders
61-7 at which a quorum is present;
61-8 (3) that the act of the shareholders shall be the
61-9 affirmative vote of the holders of a specified portion, but not
61-10 less than a majority, of the shares entitled to vote on, and voted
61-11 for or against, that matter at a meeting of shareholders at which a
61-12 quorum is present; or
61-13 (4) that the act of the shareholders shall be the
61-14 affirmative vote of the holders of a specified portion, but not
61-15 less than a majority, of the shares entitled to vote on, and that
61-16 voted for or against or expressly abstained with respect to, that
61-17 matter at a meeting of shareholders at which a quorum is present.
61-18 (D) Unless otherwise provided in the declaration of trust or
61-19 the bylaws in accordance with this Section, trust managers shall be
61-20 elected by two-thirds of the votes cast by the holders of shares
61-21 entitled to vote in the election of trust managers at a meeting of
61-22 shareholders at which a quorum is present. The declaration of
61-23 trust or the bylaws may provide:
61-24 (1) that a trust manager shall be elected only if the
61-25 trust manager receives the vote of the holders of a specified
61-26 portion, but not less than a majority, of the shares entitled to
61-27 vote in the election of trust managers;
62-1 (2) that a trust manager shall be elected only if the
62-2 trust manager receives the vote of the holders of a specified
62-3 portion, but not less than a majority, of the shares entitled to
62-4 vote in the election of trust managers and represented in person or
62-5 by proxy at a meeting of shareholders at which a quorum is present;
62-6 or
62-7 (3) that a trust manager shall be elected only if the
62-8 trust manager receives a specified portion, but not less than a
62-9 majority, of the votes cast by the holders of shares entitled to
62-10 vote in the election of trust managers at a meeting of shareholders
62-11 at which a quorum is present.
62-12 (E) With respect to any matter for which the affirmative
62-13 vote of the holders of a specified portion of the shares entitled
62-14 to vote is required by this Act, the declaration of trust may
62-15 provide that the act of the shareholders on that matter shall be
62-16 the affirmative vote of the holders of a specified portion, but not
62-17 less than a majority, of the shares entitled to vote on that
62-18 matter, rather than the affirmative vote otherwise required by this
62-19 Act. With respect to any matter for which the affirmative vote of
62-20 the holders of a specified portion of the shares of any class or
62-21 series is required by this Act, the declaration of trust also may
62-22 provide that the act of the holders of shares of that class or
62-23 series on that matter shall be the affirmative vote of the holders
62-24 of a specified portion, but not less than a majority, of the shares
62-25 of that class or series, rather than the affirmative vote of the
62-26 holders of shares of that class or series otherwise required by
62-27 this Act. If any provision of the declaration of trust provides
63-1 that the act of the shareholders on any matter shall be the
63-2 affirmative vote of the holders of a specified portion of the
63-3 shares entitled to vote on that matter that is greater than a
63-4 majority of the shares so entitled to vote, that provision of the
63-5 declaration of trust may not be amended or modified, directly or
63-6 indirectly, without the affirmative vote of the holders of that
63-7 greater portion of the shares entitled to vote on that matter,
63-8 unless otherwise provided in the declaration of trust. If any
63-9 provision of the declaration of trust provides that the act of the
63-10 holders of shares of any class or series on any matter shall be the
63-11 affirmative vote of the holders of a specified portion of the
63-12 shares of that class or series that is greater than a majority of
63-13 the shares of that class or series, that provision of the
63-14 declaration of trust may not be amended or modified, directly or
63-15 indirectly, without the affirmative vote of the holders of that
63-16 greater portion of the shares of that class or series, unless
63-17 otherwise provided in the declaration of trust.
63-18 (F) A real estate investment trust may establish procedures
63-19 in its bylaws, consistent with this Act, for determining the
63-20 validity of proxies and whether shares that are held of record by a
63-21 bank, broker, or other nominee are represented at a meeting of
63-22 shareholders with respect to any matter. Those procedures may
63-23 incorporate or look to rules and determinations of self regulatory
63-24 organizations regulating that bank, broker, or other nominee
63-25 <Unless otherwise provided in the declaration of trust, the holders
63-26 of a majority of the shares entitled to vote, represented in person
63-27 or by proxy, shall constitute a quorum at a meeting of
64-1 shareholders, but in no event shall a quorum consist of the holders
64-2 of less than one-third (1/3) of the shares entitled to vote and
64-3 thus represented at such meeting. The vote of the holders of a
64-4 majority of the shares entitled to vote and thus represented at a
64-5 meeting at which a quorum is present, shall be the act of the
64-6 shareholders meeting, unless the vote of a greater number is
64-7 required by law, the declaration of trust or by-laws>.
64-8 Sec. 13.10 <13>. VOTING OF SHARES. (A)(1) Each outstanding
64-9 share, regardless of class, shall be entitled to one vote on each
64-10 matter submitted to a vote at a meeting of shareholders, except:
64-11 (a) to the extent that the declaration of trust
64-12 provides for more or less than one vote per share or (if and to the
64-13 extent permitted by this Act) limits or denies voting rights to the
64-14 holders of the shares of any class or series; or
64-15 (b) as otherwise provided by this Act.
64-16 (2) If the declaration of trust provides for more or
64-17 less than one vote per share for all the outstanding shares or for
64-18 the shares of any class or any series on any matter, every
64-19 reference in this Act or in the declaration of trust or bylaws,
64-20 unless expressly stated otherwise in the declaration of trust or
64-21 bylaws, in connection with such matter to a specified portion of
64-22 those shares shall mean the portion of the votes entitled to be
64-23 cast in respect of the shares by virtue of the provisions of the
64-24 declaration of trust.
64-25 (B) Shares of the stock of a real estate investment trust
64-26 that are owned by another real estate investment trust or
64-27 corporation, if a majority of the voting stock of the other real
65-1 estate investment trust or corporation is owned or controlled by
65-2 the real estate investment trust, may not be voted, directly or
65-3 indirectly, at any meeting and may not be counted in determining
65-4 the total number of outstanding shares at any given time. Nothing
65-5 in this Subsection shall be construed as limiting the right of any
65-6 real estate investment trust to vote stock, including voting its
65-7 own stock, held or controlled by the real estate investment trust
65-8 in a fiduciary capacity or with respect to which the real estate
65-9 investment trust otherwise exercises voting power in a fiduciary
65-10 capacity.
65-11 (C) Any shareholder may vote either in person or by proxy
65-12 executed in writing by the shareholder. A telegram, telex,
65-13 cablegram, or similar transmission by the shareholder or a
65-14 photographic, photostatic, facsimile, or similar reproduction of a
65-15 writing executed by the shareholder shall be treated as an
65-16 execution in writing for purposes of this Section. No proxy shall
65-17 be valid after 11 months from the date of its execution unless
65-18 provided otherwise in the proxy. A proxy shall be revocable unless
65-19 the proxy form conspicuously states that the proxy is irrevocable
65-20 and the proxy is coupled with an interest. Proxies coupled with an
65-21 interest include the appointment as proxy of:
65-22 (1) a pledgee;
65-23 (2) a person who purchased or agreed to purchase or
65-24 who owns or holds an option to purchase the shares;
65-25 (3) a creditor of the real estate investment trust who
65-26 extended to the real estate investment trust credit under terms
65-27 requiring the appointment;
66-1 (4) an employee of the real estate investment trust
66-2 whose employment contract requires the appointment; or
66-3 (5) a party to a voting agreement created under
66-4 Subsection (B) of Section 13.20 of this Act.
66-5 (D) An irrevocable proxy, if noted conspicuously on the
66-6 certificate representing the shares that are subject to the
66-7 irrevocable proxy or, in the case of uncertificated shares, if
66-8 notation of the irrevocable proxy is contained in the notice sent
66-9 pursuant to Subsection (D) of Section 7.20 of this Act with respect
66-10 to the shares that are subject to the irrevocable proxy, shall be
66-11 specifically enforceable against the holder of those shares or any
66-12 successor or transferee of the holder. Unless noted conspicuously
66-13 on the certificate representing the shares that are subject to the
66-14 irrevocable proxy or, in the case of uncertificated shares, unless
66-15 notation of the irrevocable proxy is contained in the notice sent
66-16 pursuant to Subsection (D) of Section 7.20 of this Act with respect
66-17 to the shares that are subject to the irrevocable proxy, an
66-18 irrevocable proxy, even though otherwise enforceable, is
66-19 ineffective against a transferee for value without actual knowledge
66-20 of the existence of the irrevocable proxy at the time of the
66-21 transfer or against any subsequent transferee, whether or not for
66-22 value. The irrevocable proxy shall be specifically enforceable
66-23 against any other person who is not a transferee for value from and
66-24 after the time that the person acquires actual knowledge of the
66-25 existence of the irrevocable proxy.
66-26 (E)(1) At each election of trust managers, every shareholder
66-27 entitled to vote at the election shall have the right to vote, in
67-1 person or by proxy, the number of shares owned by the shareholder
67-2 for as many persons as there are trust managers to be elected and
67-3 for whose election the shareholder has a right to vote.
67-4 (2) Cumulative voting, whereby a shareholder gives one
67-5 candidate as many votes as the number of trust managers multiplied
67-6 by the shareholder's shares equals, or by distributing such votes
67-7 on the same principle among any number of candidates, may not be
67-8 permitted unless specifically authorized in the declaration of
67-9 trust. If cumulative voting is authorized in the declaration of
67-10 trust, any shareholder who intends to cumulate the shareholder's
67-11 votes accordingly must give written notice of the shareholder's
67-12 intention to cumulate the shareholder's votes to the trust managers
67-13 on or before the day preceding the election at which the
67-14 shareholder intends to cumulate the shareholder's votes.
67-15 (F) Shares standing in the name of another real estate
67-16 investment trust or corporation, domestic or foreign, may be voted
67-17 by an officer, agent, or proxy that is authorized to vote those
67-18 shares by the bylaws of the real estate investment trust or
67-19 corporation or, in the absence of such authorization, by an
67-20 officer, agent, or proxy as determined by the trust managers or
67-21 board of directors of the real estate investment trust or
67-22 corporation. When any foreign real estate investment trust or
67-23 corporation without a permit to do business in this state lawfully
67-24 owns or may lawfully own or acquire stock in a Texas real estate
67-25 investment trust, the foreign real estate investment trust or
67-26 corporation may vote that stock and participate in the management
67-27 and control of the business and affairs of the Texas real estate
68-1 investment trust, as other shareholders, subject to all laws and
68-2 rules governing real estate investment trusts in this state,
68-3 including especially the provisions of the antitrust laws of this
68-4 state.
68-5 (G) Shares held by a person who is an administrator,
68-6 executor, guardian, or conservator may be voted by the person so
68-7 long as the shares forming a part of an estate are in the
68-8 possession and forming a part of the estate being served by the
68-9 person, either personally or by proxy, without a transfer of such
68-10 shares into the person's name. Shares standing in the name of a
68-11 trustee may be voted by the trustee, either personally or by proxy,
68-12 but a trustee is not entitled to vote shares held by the trustee
68-13 without a transfer of those shares into the trustee's name as
68-14 trustee.
68-15 (H) Shares standing in the name of, held by, or under the
68-16 control of a receiver may be voted by the receiver, without
68-17 transferring the shares into the receiver's name, if authority to
68-18 vote the shares is contained in an appropriate court order by which
68-19 the receiver was appointed to serve as receiver.
68-20 (I) A shareholder whose shares are pledged is entitled to
68-21 vote those shares until the shares have been transferred into the
68-22 pledgee's name. After the shares have been transferred into the
68-23 pledgee's name, the pledgee shall be entitled to vote the
68-24 transferred shares <A shareholder may vote either in person or by
68-25 proxy executed in writing by the shareholder or by his duly
68-26 authorized attorney in fact. No proxy shall be valid after eleven
68-27 (11) months from the date of its execution unless otherwise
69-1 provided in the proxy. Each proxy shall be revocable unless
69-2 expressly provided therein to be irrevocable, but in no event shall
69-3 it remain irrevocable for a period of more than eleven (11) months.>
69-4 <(C)(1) At each election for trust manager(s) every
69-5 shareholder entitled to vote at such election shall have the right
69-6 to vote, in person or by proxy, the number of shares owned by him
69-7 for as many persons as there are trust manager(s) to be elected and
69-8 for whose election he has a right to vote, or unless expressly
69-9 prohibited by the declaration of trust, to cumulate his votes by
69-10 giving one (1) candidate as many votes as the number of such trust
69-11 manager(s) multiplied by his shares shall equal, or by distributing
69-12 such votes on the same principle among any number of such
69-13 candidates.>
69-14 <(2) No amendment of the declaration of trust
69-15 prohibiting the right of cumulative voting shall be effective
69-16 unless at least sixty-six and two-thirds per cent (66 2/3%) of the
69-17 outstanding shares entitled to vote upon such amendment shall have
69-18 been voted in favor of such amendment.>
69-19 <(3) Any shareholder who intends to cumulate his votes
69-20 as herein authorized shall give written notice of such intention to
69-21 the trust manager(s) on or before the day preceding the election at
69-22 which such shareholder intends to cumulate his votes>.
69-23 Sec. 13.20. VOTING TRUSTS AND VOTING AGREEMENTS. (A) Any
69-24 number of shareholders of a real estate investment trust may enter
69-25 into a written voting trust agreement to confer on a trustee or
69-26 trustees the right to vote or otherwise represent shares of the
69-27 real estate investment trust. The shares that are to be subject to
70-1 the agreement shall be transferred to the trustee or trustees for
70-2 purposes of the agreement, and a counterpart of the agreement shall
70-3 be deposited with the real estate investment trust at its principal
70-4 place of business or registered office. The counterpart of the
70-5 voting trust agreement deposited with the real estate investment
70-6 trust shall be subject to the same right of examination by a
70-7 shareholder of the real estate investment trust, in person or by
70-8 agent or attorney, as are the books and records of the real estate
70-9 investment trust and shall be subject to examination by any holder
70-10 of a beneficial interest in the voting trust, either in person or
70-11 by agent or attorney, at any reasonable time for any proper
70-12 purpose.
70-13 (B) Any number of shareholders of a real estate investment
70-14 trust, or any number of shareholders of a real estate investment
70-15 trust and the real estate investment trust itself, may enter into a
70-16 written voting agreement for the purpose of providing that shares
70-17 of the real estate investment trust must be voted in the manner
70-18 prescribed in the agreement. A counterpart of the agreement shall
70-19 be deposited with the real estate investment trust at its principal
70-20 place of business or registered office and shall be subject to the
70-21 same right of examination by a shareholder of the real estate
70-22 investment trust, in person or by agent or attorney, as are the
70-23 books and records of the real estate investment trust. The
70-24 agreement is specifically enforceable against the holders of those
70-25 shares or any successor or transferee of the holder, if the
70-26 agreement is noted conspicuously on the certificate representing
70-27 the shares that are subject to the agreement or, in the case of
71-1 uncertificated shares, if notation of the agreement is contained in
71-2 the notice sent pursuant to Subsection (D) of Section 7.20 of this
71-3 Act with respect to the shares that are subject to the agreement.
71-4 Unless noted conspicuously on the certificate representing the
71-5 shares that are subject to the agreement or, in the case of
71-6 uncertificated shares, unless notation of the agreement is
71-7 contained in the notice sent pursuant to Subsection (D) of Section
71-8 7.20 of this Act with respect to the shares that are subject to the
71-9 agreement, the agreement, even though otherwise enforceable, is
71-10 ineffective against a transferee for value without actual knowledge
71-11 of the existence of the agreement at the time of the transfer or
71-12 against any subsequent transferee, whether or not for value. The
71-13 agreement is specifically enforceable against any other person who
71-14 is not a transferee for value from and after the time that the
71-15 person acquires actual knowledge of the existence of the agreement.
71-16 A voting agreement entered into pursuant to this Subsection is not
71-17 subject to Subsection (A) of this Section.
71-18 Sec. 14.10 <14>. DISTRIBUTIONS <DIVIDENDS>. (A) The trust
71-19 managers may authorize and the real estate investment trust may
71-20 make distributions subject to any restrictions in the declaration
71-21 of trust and to the limitations set forth in this Section.
71-22 (B) A real estate investment trust may not make a
71-23 distribution if:
71-24 (1) after giving effect to the distribution, the real
71-25 estate investment trust would be insolvent; or
71-26 (2) the distribution exceeds the surplus of the real
71-27 estate investment trust.
72-1 (C) Notwithstanding the limitation set forth in Subdivision
72-2 (2) of Subsection (B) of this Section, if the net assets of a real
72-3 estate investment trust are not less than the amount of the
72-4 proposed distribution, the real estate investment trust may make a
72-5 distribution involving a purchase or redemption of any of its own
72-6 shares if the purchase or redemption is made by the real estate
72-7 investment trust to:
72-8 (1) eliminate fractional shares;
72-9 (2) collect or compromise indebtedness owed by or to
72-10 the real estate investment trust;
72-11 (3) pay dissenting shareholders entitled to payment
72-12 for their shares under this Act; or
72-13 (4) effect the purchase or redemption of redeemable
72-14 shares in accordance with this Act.
72-15 (D) A real estate investment trust's indebtedness to a
72-16 shareholder incurred by reason of a distribution made in accordance
72-17 with this Section shall be at parity with the real estate
72-18 investment trust's indebtedness to its general, unsecured
72-19 creditors, except to the extent the indebtedness is subordinated,
72-20 or payment of that indebtedness is secured, by agreement
72-21 <manager(s) may from time to time, declare and the trust may pay,
72-22 dividends on its outstanding shares in cash, in property, or in its
72-23 own shares, except when the trust is insolvent or when the payment
72-24 thereof would render the trust insolvent, or when the declaration
72-25 or payment thereof would be contrary to any restrictions contained
72-26 in the declaration of trust.>
72-27 <(B) The trust manager(s) must, when requested by the
73-1 holders of at least one-third (1/3) of the outstanding shares of
73-2 the trust, present written reports of the situation and amount of
73-3 business of the trust and, subject to limitations on the authority
73-4 of the trust manager(s) by provisions of law, or the declaration of
73-5 trust or the by-laws, the trust manager(s) shall declare and
73-6 provide for payment of such dividends of the profits from the
73-7 business of the trust as such trust manager(s) shall deem
73-8 expedient>.
73-9 Sec. 14.20. SHARE DIVIDENDS. (A) The trust managers of a
73-10 real estate investment trust may authorize and the real estate
73-11 investment trust may pay share dividends subject to any
73-12 restrictions in the declaration of trust of the real estate
73-13 investment trust and to the limitations set forth in this Section.
73-14 (B) A real estate investment trust may not pay a share
73-15 dividend payable in authorized but unissued shares if the surplus
73-16 of the real estate investment trust is less than the amount
73-17 required by this Section to be transferred to stated capital at the
73-18 time that share dividend is paid.
73-19 (C) If a share dividend is payable in authorized but
73-20 unissued shares having a par value, those shares shall be issued at
73-21 the par value. At the time that share dividend is paid, an amount
73-22 of surplus designated by the trust managers, in an amount not less
73-23 than the aggregate par value of the shares to be issued as a share
73-24 dividend, shall be transferred to stated capital.
73-25 (D) If a share dividend is payable in authorized but
73-26 unissued shares without par value, those shares shall be issued at
73-27 the value fixed by resolution of the trust managers adopted at the
74-1 time the share dividend is authorized. At the time the share
74-2 dividend is paid, an amount of surplus equal to the aggregate value
74-3 fixed in respect of those shares shall be transferred to stated
74-4 capital.
74-5 (E) A share dividend payable in shares of any class may not
74-6 be paid to the holders of shares of any other class unless the
74-7 declaration of trust so provides or unless the payment is
74-8 authorized by the affirmative vote or the written consent of the
74-9 holders of at least a majority of the outstanding shares of the
74-10 class in which the payment is to be made.
74-11 Sec. 14.30. SPLIT-UP OR DIVISION WITHOUT STATED CAPITAL
74-12 INCREASE. A split-up or division of the issued shares of any class
74-13 of a real estate investment trust into a greater number of shares
74-14 of the same class without increasing the stated capital of the real
74-15 estate investment trust does not constitute a share dividend or a
74-16 distribution and may therefore be approved and authorized by the
74-17 trust managers and carried out by the real estate investment trust.
74-18 Sec. 14.40. DETERMINATION OF NET ASSETS, STATED CAPITAL, AND
74-19 SURPLUS. (A) Determinations of whether a real estate investment
74-20 trust is insolvent and determinations of the value of the net
74-21 assets and of stated capital and surplus of the real estate
74-22 investment trust, and each of their components, may, but are not
74-23 required to, be based on:
74-24 (1) financial statements of the real estate investment
74-25 trust that present the financial condition of the real estate
74-26 investment trust in accordance with generally accepted accounting
74-27 principles, including financial statements that include subsidiary
75-1 or other entities accounted for on a consolidated basis or on the
75-2 equity method of accounting;
75-3 (2) financial statements prepared on the basis of
75-4 accounting used to file the real estate investment trust's federal
75-5 income tax return or any other accounting practices and principles
75-6 that are reasonable in the circumstances;
75-7 (3) financial information that is prepared on a basis
75-8 consistent with the financial statements referred to in
75-9 Subdivisions (1) and (2) of this Subsection, including condensed or
75-10 summary financial statements;
75-11 (4) projection, forecast, or other forward-looking
75-12 information relating to the future economic performance, financial
75-13 condition, or liquidity of the real estate investment trust that is
75-14 reasonable in the circumstances;
75-15 (5) a fair valuation or information from any other
75-16 method that is reasonable in the circumstances; or
75-17 (6) any combination of the statements, valuations, or
75-18 information authorized by this Subsection.
75-19 (B) Subsection (A) of this Section and the determinations
75-20 made in accordance with that Subsection do not apply to the
75-21 calculation of any tax imposed under the laws of this state.
75-22 Sec. 14.50. DATE OF DETERMINATION OF SURPLUS. (A) In the
75-23 case of a distribution by a real estate investment trust or the
75-24 payment of a share dividend, the surplus of the real estate
75-25 investment trust shall be determined and the determination whether
75-26 the real estate investment trust would be insolvent after giving
75-27 effect to the distribution shall be made:
76-1 (1) if the action is to be taken on or before the
76-2 120th day after the date of authorization, on the date that action
76-3 is authorized by the trust managers; or
76-4 (2) if the action is taken after the 120th day after
76-5 the date of authorization, on the date:
76-6 (a) that is within 120 days before the date the
76-7 action is to be taken and that is designated by the trust managers;
76-8 or
76-9 (b) on the date the action is taken if the trust
76-10 managers do not make the designation described by Paragraph (a) of
76-11 this Subdivision.
76-12 (B) For the purposes of this Section, a distribution that
76-13 involves the incurrence by a real estate investment trust of any
76-14 indebtedness or deferred payment obligation or a distribution that
76-15 involves a contract by the real estate investment trust to acquire
76-16 any of its own shares is considered to have been made on the date
76-17 the indebtedness or obligation is incurred or, in the case of a
76-18 contract to purchase shares, at the option of the real estate
76-19 investment trust, either on the date the contract is made or is
76-20 effective or on the date on which the shares to be acquired are
76-21 acquired.
76-22 Sec. 14.60. SURPLUS AND RESERVES. A real estate investment
76-23 trust, by resolution of its trust managers, may:
76-24 (1) create a reserve or reserves out of its surplus or
76-25 designate or allocate any part or all of its surplus in any manner
76-26 for any proper purpose or purposes; and
76-27 (2) increase, decrease, or abolish the reserve,
77-1 designation, or allocation in the same manner.
77-2 Sec. 15.10 <15>. Liability of trust manager(s). (A) In
77-3 addition to any other liabilities imposed by law upon trust
77-4 manager(s) of a real estate investment trust:
77-5 (1) The trust manager(s) of a real estate investment
77-6 trust who vote for or assent to any distribution of assets of a
77-7 real estate investment trust to its shareholders during the
77-8 liquidation of the real estate investment trust without the payment
77-9 and discharge of, or making adequate provisions for, all known
77-10 debts, obligations and liabilities of the real estate investment
77-11 trust shall be jointly and severally liable to the real estate
77-12 investment trust for the value of such assets which are
77-13 distributed, to the extent that such debts, obligations and
77-14 liabilities of the real estate investment trust are not thereafter
77-15 paid and discharged.
77-16 (2) The trust manager(s) of a real estate investment
77-17 trust who vote for or assent to the making of a loan to an officer
77-18 or trust manager(s) of the real estate investment trust or the
77-19 making of any loans secured by the shares of the real estate
77-20 investment trust, shall be jointly and severally liable to the real
77-21 estate investment trust for the amount of such loan until the
77-22 repayment thereof.
77-23 (3) If the real estate investment trust shall commence
77-24 business <operations> before the real estate investment trust has
77-25 received for the issuance of shares of beneficial interest
77-26 consideration of at least a $1,000 value, consisting of any
77-27 tangible or intangible benefit to the real estate investment trust,
78-1 including cash, promissory notes, services performed, contracts for
78-2 services to be performed, or other securities of the real estate
78-3 investment trust <beneficial ownership is held by one hundred (100)
78-4 or more persons with no five (5) persons owning more than fifty per
78-5 cent (50%) of the total number of outstanding shares of beneficial
78-6 interest>, the real estate investment trust manager(s) who assent
78-7 thereto shall be jointly and severally liable to the trust for the
78-8 part of the required consideration that has not been received
78-9 before commencing business <all debts and obligations incurred by
78-10 the trust prior to the time the beneficial ownership is so held>,
78-11 but such liability shall be terminated when the real estate
78-12 investment trust has actually received the required consideration
78-13 for the issuance <issued the required number> of shares.
78-14 (B) The trust manager(s) shall not be liable under
78-15 Subsection (A)(1) <Subsection 1 of paragraph (A)> of this Section
78-16 if, in the exercise of ordinary care, in good faith, in determining
78-17 the amount available for any such dividend or distribution, he (i)
78-18 considered the assets to be of their book value or (ii) relied on
78-19 information, opinions, reports, or statements, including financial
78-20 statements and other financial data, concerning the real estate
78-21 investment trust or another person, that were prepared or presented
78-22 by:
78-23 (a) one or more officers or employees of the
78-24 real estate investment trust, other than the trust manager;
78-25 (b) legal counsel, public accountants,
78-26 investment bankers, or other persons as to matters the trust
78-27 manager reasonably believes are within the person's professional or
79-1 expert competence; or
79-2 (c) a committee of the trust managers of which
79-3 the trust manager is not a member.
79-4 (C) A trust manager(s) shall not be liable for any claims or
79-5 damages that may result from his acts in the discharge of any duty
79-6 imposed or power conferred upon him by the real estate investment
79-7 trust, if, in the exercise of ordinary care, he acted in good faith
79-8 and in reliance upon information, opinions, reports, or statements,
79-9 including financial statements and other financial data, concerning
79-10 the real estate investment trust or another person, that were
79-11 prepared or presented by:
79-12 (1) one or more officers or employees of the real
79-13 estate investment trust, other than the real estate investment
79-14 trust manager;
79-15 (2) legal counsel, public accountants, investment
79-16 bankers, or other persons as to matters the trust manager
79-17 reasonably believes are within the person's professional or expert
79-18 competence; or
79-19 (3) a committee of the trust managers of which the
79-20 trust manager is not a member.
79-21 (D) A trust manager is not relying in good faith within the
79-22 meaning of this Section if the trust manager has knowledge
79-23 concerning the matter in question that makes reliance otherwise
79-24 permitted by this Section unwarranted <the written opinion of an
79-25 attorney for the trust>.
79-26 (E) <(D)> No trust manager shall be liable to the real
79-27 estate investment trust for any act, omission, loss, damage, or
80-1 expense arising from the performance of his duty under a real
80-2 estate investment trust, save only for his own wilful misfeasance,
80-3 wilful <or> malfeasance, or gross negligence.
80-4 (F) A trust manager found liable with respect to a claim is
80-5 entitled to receive contribution, as appropriate to achieve equity,
80-6 from each of the other trust managers who are liable with respect
80-7 to that claim.
80-8 (G) An action may not be brought against a trust manager for
80-9 liability imposed by this Section after two years after the date on
80-10 which the act alleged to give rise to the liability occurred.
80-11 <Sec. 16. ><Share as Personal Property><. A share of beneficial
80-12 ownership in a real estate investment trust shall be considered
80-13 personal property.>
80-14 Sec. 17.10 <17>. Joinder of Shareholders Not Required. The
80-15 joinder of shareholders in any sale, mortgage, lease, or other
80-16 disposition of all or any part of assets of a real estate
80-17 investment trust shall not be required.
80-18 Sec. 18.10 <18>. Books and Records. (A) Each real estate
80-19 investment trust shall keep complete and correct books of account
80-20 and shall keep minutes of the proceedings of its shareholders and
80-21 trust manager(s) and shall keep at its principal office or place of
80-22 business a record of its shareholders giving the names and
80-23 addresses of all shareholders and the number of shares held by
80-24 each.
80-25 (B) Any person who shall have been a shareholder of record
80-26 for at least six (6) months immediately preceding his demand, or
80-27 who shall be the holder of record of at least five per cent (5%) of
81-1 all the outstanding shares of a real estate investment trust, upon
81-2 written demand stating the purpose thereof, shall have the right to
81-3 examine, in person or by agent or attorney, at any reasonable time
81-4 or times, for any proper purpose, its books and records of account,
81-5 minutes and record of shareholders, and shall be entitled to make
81-6 extracts therefrom.
81-7 (C) Nothing herein contained shall impair the power of any
81-8 court of competent jurisdiction, upon proof by a shareholder of
81-9 proper purpose, irrespective of the period of time during which
81-10 such shareholder shall have been a shareholder of record, and
81-11 irrespective of the number of shares held by him, to compel
81-12 production, for examination by such shareholder, of the books and
81-13 records of account, minutes, and record of shareholders of a real
81-14 estate investment trust.
81-15 <Sec. 19. ><Transfer of Shares><. The shares of ownership shall
81-16 be transferable by an appropriate instrument in writing and by the
81-17 surrender of the shares of ownership to the trust manager(s) or to
81-18 the persons designated by them, but no transfer shall be of any
81-19 effect as against the trust or the trust manager(s) until it has
81-20 been recorded upon the books of the trust kept for that purpose.>
81-21 Sec. 19.10 <20>. Termination and liquidation. A real estate
81-22 investment trust may be dissolved by the affirmative vote of the
81-23 holders of at least two-thirds <(2/3)> of the outstanding voting
81-24 shares of the real estate investment trust unless any class or
81-25 series of shares is entitled to vote as a class on the dissolution,
81-26 in which case the resolution shall require for its adoption the
81-27 affirmative vote of the holders of at least two-thirds of the
82-1 outstanding shares within each class or series of shares entitled
82-2 to vote as a class on the dissolution and at least two-thirds of
82-3 the outstanding shares otherwise entitled to vote on the
82-4 dissolution. Shares entitled to vote as a class shall be entitled
82-5 to vote only as a class unless otherwise entitled to vote on each
82-6 matter generally or provided in the declaration of trust. Upon
82-7 receiving such vote, the trust manager(s) shall liquidate the real
82-8 estate investment trust and distribute the remaining property and
82-9 assets of the real estate investment trust among its shareholders
82-10 in accordance with their respective rights and interests after
82-11 applying such property as far as it will go to the just and
82-12 equitable payment of the liabilities and obligations of the real
82-13 estate investment trust. Upon the filing by the trust manager(s)
82-14 of a withdrawal of assumed name certificate as provided by law, the
82-15 real estate investment trust shall cease to carry on its business,
82-16 except insofar as may be necessary for the winding up thereof.
82-17 <Sec. 21. ><Greater Voting Requirements><. Whenever, with
82-18 respect to any action taken by the shareholders of a trust, the
82-19 declaration of trust requires the vote or concurrence of the
82-20 holders of a greater portion of the shares than is required by this
82-21 Act, with respect to such action, the provisions of the declaration
82-22 of trust shall control.>
82-23 Sec. 19.20. ARTICLES OF DISSOLUTION. (A) On the
82-24 termination and liquidation of the real estate investment trust, an
82-25 officer shall execute articles of dissolution on behalf of the real
82-26 estate investment trust, and the articles of dissolution shall set
82-27 forth:
83-1 (1) the name of the real estate investment trust;
83-2 (2) the names and respective addresses of its
83-3 officers;
83-4 (3) the names and respective addresses of its trust
83-5 managers;
83-6 (4) that all remaining property and assets of the real
83-7 estate investment trust have been distributed among its
83-8 shareholders in accordance with the shareholders' respective rights
83-9 and interests after applying the property and assets to the just
83-10 and equitable payment of the liabilities and obligations of the
83-11 real estate investment trust;
83-12 (5) the date of the adoption of the resolution to
83-13 dissolve the real estate investment trust by the shareholders of
83-14 the real estate investment trust;
83-15 (6) the number of shares outstanding and the number of
83-16 shares entitled to vote on the dissolution and, if the shares of
83-17 any class or series are entitled to vote on the dissolution as a
83-18 class, the designation and number of outstanding shares entitled to
83-19 vote on the dissolution of each of those classes or series; and
83-20 (7) the number of shares voted for and against the
83-21 dissolution, respectively, and, if the shares of any class or
83-22 series are entitled to vote on the dissolution as a class, the
83-23 number of shares of each of those classes or series that voted for
83-24 and against the dissolution.
83-25 (B) A copy of the articles of dissolution shall be filed
83-26 with the county clerk of the county of the principal place of
83-27 business of the real estate investment trust.
84-1 (C) On the filing of the articles of dissolution with the
84-2 county clerk of the county of the principal place of business of
84-3 the real estate investment trust, the real estate investment trust
84-4 shall cease to exist.
84-5 Sec. 21.10 <22>. Waiver of Notice. Whenever any notice is
84-6 required to be given to any shareholder of a real estate investment
84-7 trust under the provisions of this Act or under the provisions of
84-8 the declaration of trust or bylaws <by-laws> of the real estate
84-9 investment trust, a waiver thereof in writing, signed by the person
84-10 or persons entitled to such notice, whether before or after the
84-11 time stated therein, shall be equivalent to the giving of such
84-12 notice.
84-13 Sec. 22.10 <23>. Right to Amend Declaration of Trust.
84-14 (A) A real estate investment trust may amend its declaration of
84-15 trust, from time to time, in any and as many respects as may be
84-16 desired, so long as its declaration of trust as amended contains
84-17 only such provisions as may be lawfully contained in original
84-18 declaration of trust at the time of making such amendment, and, if
84-19 a change in shares or the rights of shareholders, or an exchange,
84-20 reclassification, or cancellation of shares or rights of
84-21 shareholders is to be made, such provisions as may be necessary to
84-22 effect such change, exchange, reclassification or cancellation.
84-23 <The declaration of trust may be amended upon receipt of the
84-24 affirmative vote of the holders of at least two-thirds (2/3) of the
84-25 outstanding shares of the trust. Any and all amendments to the
84-26 declaration of trust shall be made of record in the same manner as
84-27 the original declaration of trust.>
85-1 (B) A shareholder of a real estate investment trust does not
85-2 have a vested property right resulting from any provision in the
85-3 declaration of trust, including a provision relating to management,
85-4 control, capital structure, dividend entitlement, or purpose or
85-5 duration of the real estate investment trust.
85-6 Sec. 22.20. PROCEDURE TO AMEND DECLARATION OF TRUST.
85-7 (A) The declaration of trust may be amended in the following
85-8 manner:
85-9 (1) The trust managers shall adopt a resolution
85-10 setting forth the proposed amendment and, if shares have been
85-11 issued, directing that the amendment be submitted to a vote at an
85-12 annual or special meeting of shareholders. If no shares have been
85-13 issued, the amendment shall be adopted by resolution of the trust
85-14 managers and the provisions for adoption by shareholders may not
85-15 apply. The resolution may incorporate the proposed amendment in a
85-16 restated declaration of trust that contains a statement that except
85-17 for the designated amendment the restated declaration of trust
85-18 correctly sets forth without change the corresponding provisions of
85-19 the original declaration of trust and that the restated declaration
85-20 of trust together with the designated amendment supersedes the
85-21 original declaration of trust and all amendments to the original
85-22 declaration of trust.
85-23 (2) Written or printed notice setting forth the
85-24 proposed amendment or a summary of the changes to be effected by
85-25 the proposed amendment shall be given to each shareholder of record
85-26 entitled to vote on the proposed amendment within the time and in
85-27 the manner provided in this Act for giving notice of meetings of
86-1 shareholders. If the meeting is an annual meeting, the proposed
86-2 amendment or the summary of the changes may be included in the
86-3 notice of the annual meeting.
86-4 (3) At the meeting, a vote of the shareholders
86-5 entitled to vote on the proposed amendment shall be taken on the
86-6 proposed amendment. The proposed amendment is adopted on receiving
86-7 the affirmative vote of the holders of at least two-thirds of the
86-8 outstanding shares entitled to vote on the proposed amendment
86-9 unless any class or series of shares is entitled to vote on the
86-10 proposed amendment as a class, in which case the proposed amendment
86-11 shall be adopted on receiving the affirmative vote of the holders
86-12 of at least two-thirds of the shares within each class or series of
86-13 outstanding shares entitled to vote on the proposed amendment as a
86-14 class and of at least two-thirds of the total outstanding shares
86-15 entitled to vote on the proposed amendment.
86-16 (B) Any number of amendments may be submitted to and voted
86-17 on by the shareholders at one meeting.
86-18 Sec. 22.30. CLASS VOTING ON AMENDMENTS. (A) The holders of
86-19 the outstanding shares of a class shall be entitled to vote as a
86-20 class on a proposed amendment, and the holders of the outstanding
86-21 shares of a series shall be entitled to vote as a class on a
86-22 proposed amendment, whether or not entitled to vote on the proposed
86-23 amendment by the provisions of the declaration of trust, if the
86-24 amendment would accomplish any of the following, unless the
86-25 amendment is undertaken pursuant to authority granted to the trust
86-26 managers in the declaration of trust in accordance with Section
86-27 3.30 of this Act:
87-1 (1) increase or decrease the aggregate number of
87-2 authorized shares of such class or series;
87-3 (2) increase or decrease the par value of the shares
87-4 of such class, including changing shares having a par value into
87-5 shares without par value, or shares without par value into shares
87-6 with par value;
87-7 (3) effect an exchange, reclassification, or
87-8 cancellation of all or part of the shares of such class or series;
87-9 (4) effect an exchange or create a right of exchange
87-10 of all or any part of the shares of another class into the shares
87-11 of such class or series;
87-12 (5) change the designations, preferences, limitations,
87-13 or relative rights of the shares of such class or series;
87-14 (6) change the shares of such class or series, whether
87-15 with or without par value, into the same or a different number of
87-16 shares, either with or without par value, of the same class or
87-17 series or another class or series;
87-18 (7) create a new class or series of shares having
87-19 rights and preferences equal, prior, or superior to the shares of
87-20 the class or series, or increase the rights and preferences of any
87-21 class or series having rights and preferences equal, prior, or
87-22 superior to the shares of the class or series, or increase the
87-23 rights and preferences of any class or series having rights or
87-24 preferences later or inferior to the shares of the class or series
87-25 in such a manner as to become equal, prior, or superior to the
87-26 shares of the class or series;
87-27 (8) divide the shares of the class into series and fix
88-1 and determine the designation of the series and the variations in
88-2 the relative rights and preferences between the shares of the
88-3 series;
88-4 (9) limit or deny the existing preemptive rights of
88-5 the shares of the class or series, if the rights have previously
88-6 been granted pursuant to this Act; or
88-7 (10) cancel or otherwise affect dividends on the
88-8 shares of the class or series that had accrued but had not been
88-9 declared.
88-10 (B) Unless otherwise provided in a real estate investment
88-11 trust's declaration of trust, if the holders of the outstanding
88-12 shares of a class that is divided into series are entitled to vote
88-13 as a class on a proposed amendment and the amendment would affect
88-14 all series of the class equally, other than any series of which no
88-15 shares are outstanding or any series that is not affected by the
88-16 amendment, the holders of the separate series are not entitled to
88-17 separate class votes.
88-18 (C) Unless otherwise provided in a real estate investment
88-19 trust's declaration of trust, a proposed amendment to the real
88-20 estate investment trust's declaration of trust that would solely
88-21 effect changes in the designations, preferences, limitations, or
88-22 relative rights, including voting rights, of one or more series of
88-23 shares of the real estate investment trust that have been
88-24 established pursuant to the authority granted the trust managers in
88-25 the declaration of trust in accordance with this Act does not
88-26 require the approval of the holders of the outstanding shares of
88-27 any class or series other than that series if the preferences,
89-1 limitations, and relative rights of that series after giving effect
89-2 to the amendment and of any series that may be established as a
89-3 result of a reclassification of that series are, in each case,
89-4 within those permitted to be fixed and determined by the trust
89-5 managers with respect to the establishment of any new series of
89-6 shares pursuant to the authority granted to the trust managers in
89-7 the declaration of trust in accordance with this Act.
89-8 Sec. 22.40. ARTICLES OF AMENDMENT. (A) An officer shall
89-9 execute the articles of amendment on behalf of the real estate
89-10 investment trust. If no shares have been issued and the articles
89-11 of amendment are adopted by the trust managers, a majority of the
89-12 trust managers may execute the articles of amendment on behalf of
89-13 the real estate investment trust.
89-14 (B) The articles of amendment shall set forth:
89-15 (1) the name of the real estate investment trust;
89-16 (2) if the amendment alters any provision of the
89-17 original or amended declaration of trust, an identification by
89-18 reference or description of the altered provision and a statement
89-19 of its text as it is amended to read; if the amendment is an
89-20 addition to the original or amended declaration of trust, a
89-21 statement of that fact and the full text of each added provision;
89-22 (3) the date of the adoption of the amendment by the
89-23 shareholders, or by the trust managers where no shares have been
89-24 issued;
89-25 (4) the number of shares outstanding and the number of
89-26 shares entitled to vote on the amendment and, if the shares of any
89-27 class or series are entitled to vote on the amendment as a class,
90-1 the designation and number of outstanding shares entitled to vote
90-2 on the amendment of each such class or series;
90-3 (5) the number of shares voted for and against the
90-4 amendment, respectively, and, if the shares of any class are
90-5 entitled to vote on the amendment as a class or series, the number
90-6 of shares of each such class or series voted for and against the
90-7 amendment, respectively, or, if no shares have been issued, a
90-8 statement to that effect;
90-9 (6) if the amendment provides for an exchange,
90-10 reclassification, or cancellation of issued shares and if the
90-11 manner in which the exchange, reclassification, or cancellation of
90-12 issued shares shall be effected is not set forth in the amendment,
90-13 a statement of the manner in which the exchange, reclassification,
90-14 or cancellation of the issued shares shall be effected; and
90-15 (7) if the amendment effects a change in the amount of
90-16 stated capital, a statement of the manner in which the change in
90-17 the amount of stated capital is effected and a statement, expressed
90-18 in dollars, of the amount of stated capital as changed by the
90-19 amendment.
90-20 Sec. 22.50. FILING OF ARTICLES OF AMENDMENT. A copy of the
90-21 articles of amendment shall be filed with the county clerk of the
90-22 county of the principal place of business of the real estate
90-23 investment trust.
90-24 Sec. 22.60. EFFECT OF FILING OF ARTICLES OF AMENDMENT.
90-25 (A) On the filing of the articles of amendment with the county
90-26 clerk of the county of the principal place of business of the real
90-27 estate investment trust, the amendment becomes effective and the
91-1 declaration of trust is considered to be amended accordingly.
91-2 (B) An amendment may not affect any existing cause of action
91-3 in favor of or against the real estate investment trust, or any
91-4 pending suit to which the real estate investment trust is a party,
91-5 or the existing rights of persons other than shareholders. If the
91-6 name of a real estate investment trust is changed by amendment, a
91-7 suit brought by or against the real estate investment trust under
91-8 its former name may not be abated for that reason.
91-9 Sec. 22.70. RESTATED DECLARATION OF TRUST. (A) A real
91-10 estate investment trust, by following the procedure to amend the
91-11 declaration of trust provided by this Act, except that no
91-12 shareholder approval shall be required where no amendment is made,
91-13 may authorize, execute, and file a restated declaration of trust
91-14 that may restate:
91-15 (1) the entire text of the declaration of trust as
91-16 amended or supplemented by all articles of amendment previously
91-17 filed with the county clerk of the county of the principal place of
91-18 business of the real estate investment trust; or
91-19 (2) the entire text of the declaration of trust, as
91-20 amended or supplemented by all articles of amendment previously
91-21 filed with the county clerk of the county of the principal place of
91-22 business of the real estate investment trust and as further amended
91-23 by the restated declaration of trust.
91-24 (B) If the restated declaration of trust restates the entire
91-25 declaration of trust, as amended and supplemented by all articles
91-26 of amendment previously filed with the county clerk of the county
91-27 of the principal place of business of the real estate investment
92-1 trust, without making any further amendment to the declaration of
92-2 trust, the introductory paragraph shall contain a statement that
92-3 the instrument accurately copies the declaration of trust and all
92-4 amendments to the declaration of trust that are in effect on that
92-5 date and that the instrument contains no change in any provision of
92-6 the declaration of trust. The number of trust managers and the
92-7 names and addresses of the persons serving as trust managers may be
92-8 inserted in lieu of similar information concerning the initial
92-9 trust managers.
92-10 (C) If the restated declaration of trust restates the entire
92-11 declaration of trust, as amended and supplemented by all articles
92-12 of amendment previously filed with the county clerk of the county
92-13 of the principal place of business of the real estate investment
92-14 trust and as further amended by the restated declaration of trust,
92-15 the instrument containing the declaration of trust shall:
92-16 (1) set forth, for any amendment made by the restated
92-17 declaration of trust, a statement that the amendment has been
92-18 effected in conformity with the provisions of this Act and the
92-19 statements required by this Act to be contained in articles of
92-20 amendment;
92-21 (2) contain a statement that the instrument accurately
92-22 copies the declaration of trust and all amendments to the
92-23 declaration of trust that are in effect on that date and as further
92-24 amended by the restated declaration of trust and that the
92-25 instrument contains no other change in any provision in the
92-26 declaration of trust, provided that the number of trust managers
92-27 and the names and addresses of the persons serving as trust
93-1 managers may be inserted in lieu of similar information concerning
93-2 the initial trust managers; and
93-3 (3) restate the text of the entire declaration of
93-4 trust, as amended and supplemented by all articles of amendment
93-5 previously filed with the county clerk of the county of the
93-6 principal place of business of the real estate investment trust and
93-7 as further amended by the restated declaration of trust.
93-8 (D) An officer shall execute the restated declaration of
93-9 trust on behalf of the real estate investment trust. If no shares
93-10 have been issued and the restated declaration of trust is adopted
93-11 by the trust managers, a majority of the trust managers may execute
93-12 the restated declaration of trust on behalf of the real estate
93-13 investment trust.
93-14 (E) On the filing of the copy of the restated declaration of
93-15 trust with the county clerk of the county of the principal place of
93-16 business of the real estate investment trust, the original
93-17 declaration of trust and all amendments to the original declaration
93-18 of trust shall be superseded and the restated declaration of trust
93-19 is considered to be the declaration of trust of the real estate
93-20 investment trust.
93-21 Sec. 23.10 <23.1>. MERGER. (A) A domestic real estate
93-22 investment trust may adopt a plan of merger, and one or more
93-23 domestic real estate investment trusts may merge with one or more
93-24 domestic or foreign corporations, real estate investment trusts,
93-25 partnerships, or other entities if:
93-26 (1) the trust managers of each domestic real estate
93-27 investment trust that is a party to the plan of merger act on, and
94-1 its shareholders, if required by Section 23.30 of this Act,
94-2 approve, the plan of merger in the manner prescribed in Section
94-3 23.30 of this Act;
94-4 (2)(i) the merger is permitted by the laws of the
94-5 state or country under whose law each corporation, if any, that is
94-6 a party to the merger is incorporated, (ii) the merger is either
94-7 permitted by the laws under which each other entity that is a party
94-8 to the merger is organized or by the constituent documents of the
94-9 other entity that are not inconsistent with those laws, and
94-10 (iii) each domestic or foreign corporation, real estate investment
94-11 trust, partnership, or other entity that is a party to the merger
94-12 complies with those laws or documents in effecting the merger, if
94-13 one or more domestic or foreign corporations, real estate
94-14 investment trusts, partnerships, or other entities is a party to
94-15 the merger or is to be created by the terms of the plan of merger;
94-16 and
94-17 (3) no shareholder of a domestic real estate
94-18 investment trust that is a party to the merger will, as a result of
94-19 the merger, become personally liable, without the shareholder's
94-20 consent, for the liabilities or obligations of any other person or
94-21 entity.
94-22 (B) A plan of merger shall set forth:
94-23 (1) the name of each domestic or foreign corporation,
94-24 real estate investment trust, partnership, or other entity that is
94-25 a party to the merger and the name of each domestic or foreign
94-26 corporation, real estate investment trust, partnership, or other
94-27 entity, if any, that shall survive the merger, which may be one or
95-1 more of the domestic or foreign corporations, real estate
95-2 investment trusts, partnerships, or other entities that are parties
95-3 to the merger, and the name of each new domestic or foreign
95-4 corporation, real estate investment trust, partnership, or other
95-5 entity, if any, that may be created by the terms of the plan of
95-6 merger;
95-7 (2) the terms and conditions of the merger including
95-8 the following, if more than one domestic or foreign corporation,
95-9 real estate investment trust, partnership, or other entity is to
95-10 survive or to be created by the terms of the plan of merger:
95-11 (a) the manner and basis of allocating and
95-12 vesting the real estate and other property of each domestic or
95-13 foreign real estate investment trust and of each other entity that
95-14 is a party to the merger among one or more of the surviving or new
95-15 domestic or foreign corporations, real estate investment trusts,
95-16 partnerships, and other entities;
95-17 (b) the name of the surviving or new domestic or
95-18 foreign corporation, real estate investment trust, partnership, or
95-19 other entity that is to be obligated for the payment of the fair
95-20 value of any shares held by a shareholder of any domestic real
95-21 estate investment trust that is a party to the merger who has
95-22 complied with the requirements of Section 25.20 of this Act; and
95-23 (c) the manner and basis of allocating all other
95-24 liabilities and obligations of each domestic or foreign
95-25 corporation, real estate investment trust, partnership, and other
95-26 entity that is a party to the merger, or adequate provision for the
95-27 payment and discharge thereof, among one or more of the surviving
96-1 or new domestic or foreign corporations, real estate investment
96-2 trusts, partnerships, and other entities;
96-3 (3) the manner and basis of converting any of the
96-4 shares or other evidence of ownership of each domestic or foreign
96-5 corporation, real estate investment trust, partnership, and other
96-6 entity that is a party to the merger into shares, obligations,
96-7 evidences of ownership, rights to purchase securities, or other
96-8 securities of one or more of the surviving or new domestic or
96-9 foreign corporations, real estate investment trusts, partnerships,
96-10 or other entities into cash or other property, including shares,
96-11 obligations, evidences of ownership, rights to purchase securities,
96-12 or other securities of any other person or entity, or into any
96-13 combination of the foregoing; and
96-14 (4) the declaration of trust, articles of
96-15 incorporation, partnership agreement, or other organizational
96-16 documents of each real estate investment trust, corporation,
96-17 partnership, or other entity that is a party to the merger and that
96-18 is to survive the merger or is to be created by the terms of the
96-19 plan of merger.
96-20 (C) The plan of merger may set forth:
96-21 (1) any amendments to the organizational documents of
96-22 any surviving entity;
96-23 (2) provisions relating to a share exchange; and
96-24 (3) any other provisions relating to the merger.
96-25 (D) On the merger's taking effect, the surviving or new
96-26 foreign corporation, real estate investment trust, partnership, or
96-27 other entity, if any, that is the sole surviving or new foreign
97-1 corporation, real estate investment trust, partnership, or other
97-2 entity in the merger, or if more than one domestic or foreign
97-3 corporation, real estate investment trust, partnership, or other
97-4 entity is to survive or to be created by the terms of the plan of
97-5 the merger, the surviving or new foreign corporation, real estate
97-6 investment trust, partnership, or other entity that is designated
97-7 in the plan of merger to be the entity obligated for the payment of
97-8 the fair value of any shares held by a shareholder who has complied
97-9 with the requirements of Section 25.20 of this Act for the recovery
97-10 of the fair value of the shareholder's shares is considered to:
97-11 (1) appoint the secretary of state in this state as
97-12 its agent for service of process in a proceeding to enforce any
97-13 obligation or the rights of dissenting shareholders of each
97-14 domestic entity that is a party to the merger; and
97-15 (2) agree that it will promptly pay to the dissenting
97-16 shareholders of each domestic entity that is a party to the merger
97-17 the amount, if any, to which the dissenting shareholders are
97-18 entitled under Section 25.10 of this Act.
97-19 (E) This Section does not limit the power of a domestic or
97-20 foreign corporation, real estate investment trust, partnership, or
97-21 other entity to acquire all or part of the shares of one or more
97-22 classes or series of a domestic real estate investment trust
97-23 through a voluntary exchange or otherwise.
97-24 (F) This Section does not limit the power of domestic or
97-25 foreign subsidiary entities to merge into a parent pursuant to
97-26 applicable law <Definitions. In this Section the following words
97-27 have the meanings indicated.>
98-1 <(1) "Business trust" means an unincorporated trust or
98-2 association, including a Texas real estate investment trust, a
98-3 common-law trust, or a Massachusetts trust, which is engaged in
98-4 business and in which property is acquired, held, managed,
98-5 administered, controlled, invested, or disposed of by trust
98-6 managers or trustees for the benefit and profit of any person who
98-7 may become a holder of a transferable unit of beneficial interest
98-8 in the trust.>
98-9 <(2) "Foreign business trust" means a business trust
98-10 organized under the laws of the United States, another state of the
98-11 United States, or a territory, possession, or district of the
98-12 United States.>
98-13 <(3) "Texas real estate investment trust" means a real
98-14 estate investment trust formed under the provisions of this Act.>
98-15 <(B) Merger authorized. Unless the declaration of trust
98-16 provides otherwise, a Texas real estate investment trust may merge
98-17 into a Texas or foreign business trust or into a Texas or foreign
98-18 corporation having capital stock, or one or more such business
98-19 trusts or such corporations may merge into it.>
98-20 <(C) Approval generally; exceptions. A merger shall be
98-21 approved in the manner provided by this Section, except that:>
98-22 <(1) A foreign business trust, a Texas business trust,
98-23 other than a Texas real estate investment trust, or a corporation
98-24 party to the merger shall have the merger advised, authorized, and
98-25 approved in the manner and by the vote required by its declaration
98-26 of trust or charter and the laws of the place where it is
98-27 organized; and>
99-1 <(2) A merger need be approved by a Texas real estate
99-2 investment trust successor only by a majority of its trust managers
99-3 if:>
99-4 <(a) The merger does not reclassify or change
99-5 its outstanding shares or otherwise amend its declaration of trust;
99-6 and>
99-7 <(b) The number of shares to be issued or
99-8 delivered in the merger is not more than fifteen per cent (15%) of
99-9 the number of its shares of the same class or series outstanding
99-10 immediately before the merger becomes effective.>
99-11 <(D) Trust managers' actions. The trust managers of each
99-12 Texas real estate investment trust proposing to merge shall:>
99-13 <(1) Adopt a resolution that declares the proposed
99-14 transaction is advisable on substantially the terms and conditions
99-15 set forth or referred to in the resolution; and>
99-16 <(2) Direct that the proposed transaction be submitted
99-17 for consideration at either an annual or special meeting of
99-18 shareholders.>
99-19 <(E) Notice to shareholders. Notice which states that a
99-20 purpose of a meeting will be to act upon the proposed merger shall
99-21 be given by each Texas real estate investment trust in the manner
99-22 provided for corporations by Article 5.03 of the Texas Business
99-23 Corporation Act to:>
99-24 <(1) Each of its shareholders entitled to vote on the
99-25 proposed transaction; and>
99-26 <(2) Each of its shareholders not entitled to vote on
99-27 the proposed transaction, except the shareholders of a successor in
100-1 a merger if the merger does not alter the contract rights of their
100-2 shares as expressly set forth in the declaration of trust.>
100-3 <(F) Shareholders' approval. The proposed merger shall be
100-4 approved by the shareholders of each Texas real estate investment
100-5 trust by the affirmative vote of two-thirds (2/3) of all the votes
100-6 entitled to be cast on the matter.>
100-7 <(G) Articles of merger. Articles of merger containing
100-8 provisions required by Article 5.04 of the Texas Business
100-9 Corporation Act and such other provisions as may be permitted by
100-10 that Article shall be:>
100-11 <(1) Executed for each party to the articles in the
100-12 manner required by this Section or by Part Five of the Texas
100-13 Business Corporation Act; and>
100-14 <(2) Filed for the record with the secretary of state
100-15 in the manner required by Part Five of the Texas Business
100-16 Corporation Act and filed with the county clerk in each county
100-17 where the principal place of business of a Texas real estate
100-18 investment trust which is a party to the merger is located.>
100-19 <(H) Abandonment of proposed merger. (1) A proposed merger
100-20 may be abandoned before the effective date of the articles:>
100-21 <(a) If the articles so provide, by majority
100-22 vote of the trust manager(s) of any one business trust party to the
100-23 articles or of the entire board of directors of any one corporation
100-24 party to the articles; or>
100-25 <(b) Unless the articles provide otherwise, by
100-26 majority vote of the trust manager(s) of each Texas real estate
100-27 investment trust party to the articles.>
101-1 <(2) If the articles have been filed with the county
101-2 clerk and the secretary of state, notice of the abandonment shall
101-3 be given promptly to such parties.>
101-4 <(3)(a) If the proposed merger is abandoned as
101-5 provided in this subdivision, no legal liability arises under the
101-6 articles.>
101-7 <(b) An abandonment does not prejudice the
101-8 rights of any person under any other contract made by a business
101-9 trust or a corporation party to the proposed articles in connection
101-10 with the proposed merger.>
101-11 <(I) Dissenting shareholders. Each shareholder of a Texas
101-12 real estate investment trust dissenting to a merger of the Texas
101-13 real estate investment trust shall have the same rights as a
101-14 dissenting shareholder of a Texas corporation under Part Five of
101-15 the Texas Business Corporation Act and under the same procedures.>
101-16 <(J) Certificates of merger. (1) The secretary of state
101-17 shall prepare certificates of merger which specify:>
101-18 <(a) The name of each party to the articles;>
101-19 <(b) The name of the successor and the location
101-20 of its principal office in this state or, if it has none, its
101-21 principal place of business; and>
101-22 <(c) The time the articles are accepted for
101-23 record by the secretary of state.>
101-24 <(2) In addition to any other provision of law with
101-25 respect to recording, the secretary of state shall send one of the
101-26 certificates to the successor entity in the merger, and such
101-27 successor shall send a copy of the certificate to the county clerk
102-1 in each county where the principal place of business of a Texas
102-2 real estate investment trust which was a party to the merger is
102-3 located.>
102-4 <(3) On receipt of the certificate, each such county
102-5 clerk promptly shall record it with the declaration of trust to
102-6 which such articles of merger relate.>
102-7 <(K) Time merger effective. (1) Texas real estate
102-8 investment trust successor. If the successor in a merger is a
102-9 Texas real estate investment trust, a merger is effective as of the
102-10 time the secretary of state accepts the articles of merger for
102-11 record.>
102-12 <(2) Successor other than Texas real estate investment
102-13 trust. (a) If the successor in a merger is a Texas or foreign
102-14 corporation or a Texas or foreign business trust, other than a
102-15 Texas real estate investment trust, the merger is effective as of
102-16 the later of:>
102-17 <(i) The time specified by the law of the
102-18 place where the successor is organized; or>
102-19 <(ii) The time the secretary of state
102-20 accepts the articles of merger for record.>
102-21 <(b) A foreign successor in a merger shall file
102-22 for record with the secretary of state a certificate from the place
102-23 where it is organized which certifies the date the articles of
102-24 merger were filed. However, the failure to file this certificate
102-25 does not invalidate the merger.>
102-26 <(L) Effect of merger. (1) Consummation of a merger has
102-27 the effects provided in this Subsection.>
103-1 <(2) The separate existence of each business trust and
103-2 corporation party to the articles, except the successor, ceases.>
103-3 <(3) The shares of each business trust party to the
103-4 articles which are to be converted or exchanged under the terms of
103-5 the articles cease to exist, subject to the rights of a dissenting
103-6 shareholder under Subsection (I) of this Section.>
103-7 <(4) In addition to any other purposes and powers set
103-8 forth in the articles, if the articles provide, the successor has
103-9 the purposes and powers of each party to the articles.>
103-10 <(5)(a) The assets of each party to the articles,
103-11 including any legacies which it would have been capable of taking,
103-12 transfer to, vest in, and devolve on the successor without further
103-13 act or deed.>
103-14 <(b) Confirmatory deeds, assignments, or similar
103-15 instruments to evidence the transfer may be executed and delivered
103-16 at any time in the name of the transferring party to the articles
103-17 by its last acting officers or trustees or by the appropriate
103-18 officers or trustees of the successor.>
103-19 <(6)(a) The successor is liable for all the debts and
103-20 obligations of each nonsurviving party to the articles. An
103-21 existing claim, action, or proceeding pending by or against any
103-22 nonsurviving party to the articles may be prosecuted to judgment as
103-23 if the merger had not taken place, or, on motion of the successor
103-24 or any party, the successor may be substituted as a party and the
103-25 judgment against the nonsurviving party to the articles constitutes
103-26 a lien on the property of the successor.>
103-27 <(b) A merger does not impair the rights of
104-1 creditors or any liens on the property of any business trust or
104-2 corporation party to the articles>.
104-3 Sec. 23.20. SHARE EXCHANGE OR ACQUISITION. (A) One or more
104-4 domestic or foreign corporations, real estate investment trusts,
104-5 partnerships, or other entities may acquire all of the outstanding
104-6 shares of one or more classes or series of one or more domestic
104-7 real estate investment trusts if:
104-8 (1) the trust managers of each domestic real estate
104-9 investment trust that is a party to the plan of exchange acts on a
104-10 plan of exchange in the manner prescribed by Section 23.30 of this
104-11 Act and its shareholders, if required by Section 23.30 of this Act,
104-12 approve the plan of exchange;
104-13 (2) the issuance of shares or interests issued as part
104-14 of the plan of exchange is either permitted by the laws under which
104-15 the domestic or foreign corporations, real estate investment
104-16 trusts, partnerships, or other entities are incorporated or
104-17 organized or not inconsistent with those laws, if one or more
104-18 foreign corporations, real estate investment trusts, partnerships,
104-19 or other entities are to issue shares or other interests as part of
104-20 the plan of exchange; and
104-21 (3) each acquiring domestic or foreign corporation,
104-22 real estate investment trust, partnership, or other entity takes
104-23 all action that may be required by the laws of the state or country
104-24 under which the entity was incorporated or organized and by its
104-25 constituent documents to effect the exchange.
104-26 (B) A plan of exchange must set forth:
104-27 (1) the name of the real estate investment trust or
105-1 trusts whose shares will be acquired and the name of each acquiring
105-2 domestic or foreign corporation, real estate investment trust,
105-3 partnership, or other entity;
105-4 (2) the terms and conditions of the exchange
105-5 including, if there is more than one acquiring domestic or foreign
105-6 corporation, real estate investment trust, partnership, or other
105-7 entity, the shares to be acquired by each such entity; and
105-8 (3) the manner and basis of exchanging the shares to
105-9 be acquired for shares, obligations, evidences of ownership, rights
105-10 to purchase securities, or other securities of one or more of the
105-11 acquiring domestic or foreign corporations, real estate investment
105-12 trusts, partnerships, or other entities that are parties to the
105-13 plan of exchange, or for cash or other property, including shares,
105-14 obligations, evidences of ownership, rights to purchase securities,
105-15 or other securities of any other person or entity, or for any
105-16 combination of the foregoing.
105-17 (C) The plan of exchange may set forth any other provisions
105-18 relating to the exchange and may be contained in and be a part of a
105-19 plan of merger.
105-20 (D) A plan of exchange may not be effected if any
105-21 shareholder of a domestic real estate investment trust that is a
105-22 party to the share exchange will, as a result of the share
105-23 exchange, become personally liable, without the shareholder's
105-24 consent, for the liabilities or obligations of any other person or
105-25 entity.
105-26 (E) This Section does not limit the power of a domestic or
105-27 foreign corporation, real estate investment trust, partnership, or
106-1 other entity to acquire all or part of the shares of one or more
106-2 classes or series of a domestic real estate investment trust
106-3 through a voluntary exchange or otherwise.
106-4 Sec. 23.30. ACTION ON PLAN OF MERGER OR EXCHANGE.
106-5 (A) Except as provided by Subsection (G) of this Section, after
106-6 acting on a plan of merger or exchange in the manner prescribed by
106-7 Subdivision (1) of Subsection (B) of this Section, the trust
106-8 managers of each domestic real estate investment trust that is a
106-9 party to the merger and the trust managers of each domestic real
106-10 estate investment trust whose shares are to be acquired in the
106-11 share exchange shall submit the plan of merger or exchange for
106-12 approval by its shareholders.
106-13 (B) Except as provided by Subsection (G) of this Section,
106-14 for a plan of merger or exchange to be approved:
106-15 (1) the trust managers of the real estate investment
106-16 trust may adopt a resolution recommending that the plan of merger
106-17 or exchange be approved by the shareholders of the real estate
106-18 investment trust, unless the trust managers determine that for any
106-19 reason the trust managers should not make that recommendation, in
106-20 which case the trust managers may adopt a resolution directing that
106-21 the plan of merger or exchange be submitted to shareholders for
106-22 approval without recommendation and, in connection with the
106-23 submission, communicate the basis for the trust managers'
106-24 determination that the plan be submitted to shareholders without
106-25 any recommendation; and
106-26 (2) the shareholders entitled to vote on the plan of
106-27 merger or exchange must approve the plan.
107-1 (C) The trust managers may condition the trust managers'
107-2 submission to shareholders of a plan of merger or exchange on any
107-3 basis.
107-4 (D) The real estate investment trust shall notify each
107-5 shareholder, whether or not the shareholder is entitled to vote, of
107-6 the meeting of shareholders at which the plan of merger or exchange
107-7 is to be submitted for approval in accordance with Section 11.10 of
107-8 this Act. The notice shall be given at least 20 days before the
107-9 meeting and shall state that the purpose, or one of the purposes,
107-10 of the meeting is to consider the plan of merger or exchange and
107-11 shall contain or be accompanied by a copy or summary of the plan.
107-12 (E) Unless the trust managers (acting pursuant to Subsection
107-13 (C) of this Section) require a greater vote or a vote by class or
107-14 series, the vote of shareholders required for approval of a plan of
107-15 merger or exchange shall be the affirmative vote of the holders of
107-16 at least two-thirds of the outstanding shares of each real estate
107-17 investment trust entitled to vote on the plan of merger or
107-18 exchange, unless any class or series of shares of any such real
107-19 estate investment trust is entitled to vote as a class on the plan
107-20 of merger or exchange, in which event the vote required for
107-21 approval by the shareholders of the real estate investment trust
107-22 shall be the affirmative vote of the holders of at least two-thirds
107-23 of the outstanding shares otherwise entitled to vote on the plan of
107-24 merger or exchange as a class and at least two-thirds of the
107-25 outstanding shares otherwise entitled to vote on the plan of merger
107-26 or exchange. Shares entitled to vote as a class shall be entitled
107-27 to vote only as a class unless otherwise entitled to vote on each
108-1 matter submitted to the shareholders generally or as provided in
108-2 the declaration of trust.
108-3 (F) Separate voting by a class or series of shares of a
108-4 declaration of trust shall be required:
108-5 (1) for approval of a plan of merger if:
108-6 (a) the plan contains a provision that if
108-7 contained in a proposed amendment to the declaration of trust would
108-8 require approval by that class or series of shares under Section
108-9 22.30 of this Act; or
108-10 (b) that class or series of shares is entitled
108-11 under the declaration of trust to vote as a class on the plan of
108-12 merger or exchange; and
108-13 (2) on a plan of exchange if:
108-14 (a) shares of that class or series are to be
108-15 exchanged pursuant to the terms of the plan; or
108-16 (b) that class or series is entitled under the
108-17 declaration of trust to vote as a class on the plan of merger or
108-18 exchange.
108-19 (G) Unless the declaration of trust otherwise requires,
108-20 approval by the shareholders of a real estate investment trust on a
108-21 plan of merger is not required and Subsections (A) through (F) of
108-22 this Section do not apply if:
108-23 (1) the real estate investment trust is the sole
108-24 surviving real estate investment trust in the merger;
108-25 (2) the declaration of trust of the real estate
108-26 investment trust will not differ from its declaration of trust
108-27 before the merger;
109-1 (3) each shareholder of the real estate investment
109-2 trust whose shares were outstanding immediately before the
109-3 effective date of the merger will hold the same number of shares,
109-4 with identical designations, preferences, limitations, and relative
109-5 rights, immediately after the effective date of the merger;
109-6 (4) the voting power of the number of voting shares
109-7 outstanding immediately after the merger, plus the voting power of
109-8 the number of voting shares issuable as a result of the merger,
109-9 either by the conversion of securities issued pursuant to the
109-10 merger or the exercise of rights to purchase securities issued
109-11 pursuant to the merger, will not exceed by more than 20 percent the
109-12 voting power of the total number of voting shares of the real
109-13 estate investment trust outstanding immediately before the merger;
109-14 (5) the number of participating shares outstanding
109-15 immediately after the merger, plus the number of participating
109-16 shares issuable as a result of the merger, either by the conversion
109-17 of securities issued pursuant to the merger or the exercise of
109-18 rights to purchase securities issued pursuant to the merger, will
109-19 not exceed by more than 20 percent the total number of
109-20 participating shares of the real estate investment trust
109-21 outstanding immediately before the merger; and
109-22 (6) the trust managers of the real estate investment
109-23 trust adopt a resolution approving the plan of merger.
109-24 (H) In this Section:
109-25 (1) "Participating shares" means shares that entitle
109-26 the holders of the shares to participate in distributions without
109-27 limitation.
110-1 (2) "Voting shares" means shares that entitle the
110-2 holders of the shares to vote unconditionally in elections of trust
110-3 managers.
110-4 (I) After a merger or share exchange is approved, and at any
110-5 time before the merger or share exchange has become effective, the
110-6 plan of merger or share exchange may be abandoned (subject to any
110-7 contractual rights) by any of the real estate investment trusts
110-8 that are a party to the merger, without shareholder action, in
110-9 accordance with the procedures set forth in the plan of merger or
110-10 exchange, or, if no such procedures are set forth in the plan, in
110-11 the manner determined by the trust managers. If articles of
110-12 merger or exchange have been filed with the county clerk of the
110-13 county of the principal place of business of the real estate
110-14 investment trust but the merger or share exchange has not become
110-15 effective, the merger or share exchange may be abandoned as
110-16 provided in this Subsection if a statement, executed on behalf of
110-17 each domestic and foreign entity that is a party to the merger or
110-18 share exchange by an officer or other duly authorized
110-19 representative of the domestic or foreign entity, and stating that
110-20 the plan of merger or exchange has been abandoned in accordance
110-21 with the plan and this Subsection, is filed with the county clerk
110-22 in each county where the principal place of business of a Texas
110-23 real estate investment trust that is a party to the merger or
110-24 exchange is located before the merger or share exchange takes
110-25 effect.
110-26 (J) On the filing with the county clerk of the county of the
110-27 principal place of business of the real estate investment trust of
111-1 the statement described by Subsection (I) of this Section, the
111-2 merger or share exchange is considered abandoned and may not take
111-3 effect.
111-4 Sec. 23.40. ARTICLES OF MERGER OR EXCHANGE. (A) If a plan
111-5 of merger or exchange has been approved in accordance with Section
111-6 23.30 of this Act and has not been abandoned, or approved by the
111-7 trust managers if shareholder approval is not required under that
111-8 Section, articles of merger or exchange shall be executed on behalf
111-9 of each domestic or foreign corporation, real estate investment
111-10 trust, partnership, or other entity that is a party to the plan of
111-11 merger or exchange by an officer or other duly authorized
111-12 representative of that entity and shall set forth:
111-13 (1) the plan of merger or exchange or statement
111-14 certifying the following:
111-15 (a) the name and state of incorporation or
111-16 organization of each domestic or foreign corporation, real estate
111-17 investment trust, partnership, or other entity that is a party to
111-18 the plan of merger or exchange or that is to be created by the plan
111-19 of merger or exchange;
111-20 (b) that a plan of merger or exchange has been
111-21 approved;
111-22 (c) in the case of a merger, the amendments or
111-23 changes in the declaration of trust of each domestic surviving real
111-24 estate investment trust or, if no amendments are to be effected by
111-25 the merger, a statement to that effect;
111-26 (d) the declaration of trust of each new
111-27 domestic real estate investment trust to be created pursuant to the
112-1 terms of the plan of merger;
112-2 (e) that an executed plan of merger or exchange
112-3 is on file at the principal place of business of each surviving,
112-4 acquiring, or new domestic or foreign corporation, real estate
112-5 investment trust, partnership, or other entity, stating the address
112-6 of that entity; and
112-7 (f) that a copy of the plan of merger or
112-8 exchange will be furnished by each surviving, acquiring, or new
112-9 domestic or foreign corporation, real estate investment trust,
112-10 partnership, or other entity, on written request and without cost,
112-11 to any shareholder, creditor, or other obligee of each domestic
112-12 real estate investment trust that is a party to or created by the
112-13 plan of merger or exchange;
112-14 (2) if shareholder approval is not required by Section
112-15 23.30 of this Act, a statement to that effect;
112-16 (3) for each real estate investment trust the approval
112-17 of whose shareholders is required, the number of shares outstanding
112-18 and, if the shares of any class or series are entitled to vote as a
112-19 class, the designation and number of outstanding shares of each
112-20 such class or series;
112-21 (4) for each real estate investment trust the approval
112-22 of whose shareholders is required, the number of shares not
112-23 entitled to vote only as a class, voted for and against the plan,
112-24 respectively, and, if the shares of any class or series are
112-25 entitled to vote as a class, the number of shares of each such
112-26 class or series voted for and against the plan, respectively;
112-27 (5) for each acquiring domestic or foreign
113-1 corporation, real estate investment trust, partnership, or other
113-2 entity in a plan of exchange, a statement that the plan and
113-3 performance of its terms were duly authorized by all action
113-4 required by the laws under which it was incorporated or organized
113-5 and by its constituent documents; and
113-6 (6) for each domestic or foreign corporation, or other
113-7 entity that is a party to the plan of merger, a statement that the
113-8 approval of the plan of merger was duly authorized by all action
113-9 required by the laws under which it was incorporated or organized
113-10 and by its constituent documents.
113-11 (B) The original of the articles of merger or exchange and
113-12 the number of copies of the articles that is equal to the number of
113-13 surviving, new, and acquiring domestic or foreign corporations,
113-14 real estate investment trusts, partnerships, and other entities
113-15 that are parties to the plan of merger or exchange or that will be
113-16 created by the terms of the plan of merger or exchange thereof
113-17 shall be filed with the county clerk in each county where the
113-18 principal place of business of a Texas real estate investment trust
113-19 that is a party to the merger or exchange is located.
113-20 Sec. 23.50. EFFECTIVE DATE OF MERGER OR SHARE EXCHANGE.
113-21 Except as otherwise provided by Section 27.10 of this Act, the
113-22 merger or share exchange is effective when the articles of merger
113-23 or exchange are filed as required by Section 23.40 of this Act.
113-24 Sec. 23.60. EFFECT OF MERGER OR SHARE EXCHANGE. (A) When a
113-25 merger under Section 23.10 or 23.20 of this Act takes effect:
113-26 (1) the separate existence of every domestic real
113-27 estate investment trust that is a party to the merger, except any
114-1 surviving or new domestic real estate investment trust, ceases;
114-2 (2) all rights, title, and interest to all real estate
114-3 and other property owned by each domestic or foreign corporation,
114-4 real estate investment trust, partnership, or other entity that is
114-5 a party to the merger shall be allocated to and vested in one or
114-6 more of the surviving or new domestic or foreign corporations, real
114-7 estate investment trusts, partnerships, and other entities as
114-8 provided in the plan of merger without reversion or impairment,
114-9 without further act or deed, and without any transfer or assignment
114-10 having occurred, but subject to any existing liens or other
114-11 encumbrances on the real estate and property;
114-12 (3) all liabilities and obligations of each domestic
114-13 or foreign corporation, real estate investment trust, partnership,
114-14 and other entity that is a party to the merger shall be allocated
114-15 to one or more of the surviving or new domestic or foreign
114-16 corporations, real estate investment trusts, partnerships, or other
114-17 entities in the manner set forth in the plan of merger, and each
114-18 surviving or new domestic or foreign corporation, real estate
114-19 investment trust, partnership, or other entity to which a liability
114-20 or obligation shall have been allocated pursuant to the plan of
114-21 merger shall be the primary obligor for the liability or obligation
114-22 and, except as otherwise set forth in the plan of merger or as
114-23 provided by law or contract, no other party to the merger, other
114-24 than a surviving domestic or foreign corporation, real estate
114-25 investment trust, partnership, or other entity created thereby,
114-26 shall be liable for the liability or obligation;
114-27 (4) a proceeding pending by or against any domestic or
115-1 foreign corporation, real estate investment trust, partnership, or
115-2 other entity that is a party to the merger may be continued as if
115-3 the merger did not occur, or the surviving or new entity or
115-4 entities to which the liability, obligation, asset, or right
115-5 associated with such proceeding is allocated to and vested in
115-6 pursuant to the plan of merger, may be substituted in the
115-7 proceeding;
115-8 (5) the declaration of trust of each surviving real
115-9 estate investment trust shall be amended to the extent provided in
115-10 the plan of merger;
115-11 (6) each new domestic real estate investment trust
115-12 that has a declaration of trust set forth in the plan of merger
115-13 pursuant to Section 23.10 of this Act shall be formed as a real
115-14 estate investment trust under this Act; and each other entity to be
115-15 incorporated or organized under the laws of this State that has
115-16 organizational documents set forth in the plan of merger, on an
115-17 executed copy of the articles of merger being delivered to or filed
115-18 with any required governmental entity with which organizational
115-19 documents of such other entity are required to be delivered or
115-20 filed, and on meeting such additional requirements, if any, of law
115-21 for its incorporation or organization, shall be incorporated or
115-22 organized as provided in the plan of merger; and
115-23 (7) the shares of each domestic or foreign real estate
115-24 investment trust and the shares or evidences of ownership in each
115-25 other entity that is a party to the merger that are to be converted
115-26 or exchanged, in whole or part, into shares, obligations, evidences
115-27 of ownership, rights to purchase securities, or other securities of
116-1 one or more of the surviving or new domestic or foreign
116-2 corporations, real estate investment trusts, partnerships, or other
116-3 entities, into cash or other property, including shares,
116-4 obligations, evidences of ownership, rights to purchase securities,
116-5 or other securities of any other person or entity, or into any
116-6 combination of the foregoing, shall be so converted and exchanged,
116-7 and the former holders of the shares of each domestic real estate
116-8 investment trust that is a party to the merger shall be entitled
116-9 only to the rights provided in the articles of merger or to their
116-10 rights of dissent under Section 25.10 of this Act.
116-11 (B) When a share exchange takes effect, the shares of each
116-12 acquired real estate investment trust are considered to have been
116-13 exchanged as provided in the plan of exchange, and the former
116-14 holders of the shares exchanged pursuant to the plan of exchange
116-15 shall be entitled only to the exchange rights provided in the
116-16 articles of exchange or to their rights of dissent under Section
116-17 25.10 of this Act. When a share exchange takes effect, the
116-18 acquiring domestic or foreign entity or entities of the shares to
116-19 be acquired and exchanged in the share exchange shall be entitled
116-20 to all rights, title, and interests with respect to the shares so
116-21 acquired and exchanged subject to the provisions in the articles of
116-22 exchange.
116-23 (C) If the plan of merger fails to provide for the
116-24 allocation and vesting of the right, title, and interest in any
116-25 particular item of real estate or other property or for the
116-26 allocation of any liability or obligation of any party to the
116-27 merger, that item of real estate or other property shall be owned
117-1 in undivided interest by, or such liability or obligation shall be
117-2 the joint and several liability and obligation of, each of the
117-3 surviving and new domestic and foreign corporations, real estate
117-4 investment trusts, partnerships, and other entities, pro rata to
117-5 the total number of surviving and new domestic and foreign
117-6 corporations, real estate investment trusts, partnerships, and
117-7 other entities resulting from the merger.
117-8 Sec. 24.10. DISPOSITION OF ASSETS AUTHORIZED BY TRUST
117-9 MANAGERS. (A) Except as otherwise provided in the declaration of
117-10 trust and except as provided in the next sentence of this
117-11 Subsection, the sale, lease, exchange, or other disposition of all,
117-12 or substantially all, of the property and assets of a real estate
117-13 investment trust, when made in the usual and regular course of the
117-14 business of the real estate investment trust, may be made on the
117-15 terms and conditions and for the consideration, which may consist
117-16 in whole or in part of money or real or personal property,
117-17 including shares of any real estate investment trust or domestic or
117-18 foreign corporation, as authorized by its trust managers without
117-19 authorization or consent of the shareholders. Except as otherwise
117-20 provided in the declaration of trust, the trust managers may
117-21 authorize any pledge, mortgage, deed of trust, or trust indenture,
117-22 and no authorization or consent of the shareholders shall be
117-23 required for the validity of or for any sale pursuant to the terms
117-24 of the pledge, mortgage, deed of trust, or trust indenture.
117-25 (B) A transaction referred to in this Section of this Act is
117-26 in the usual and regular course of business if the real estate
117-27 investment trust, directly or indirectly, continues to engage in
118-1 one or more businesses or applies a portion of the consideration
118-2 received in connection with the transaction to the conduct of a
118-3 business in which it engages following the transaction.
118-4 (C) When authorized by appropriate resolution of the trust
118-5 managers, any real estate investment trust may convey land by deed,
118-6 with or without the seal, if any, of the real estate investment
118-7 trust, signed by an officer or attorney in fact of the real estate
118-8 investment trust. The deed, when acknowledged by the officer or
118-9 attorney in fact to be the act of the real estate investment trust
118-10 or proved in the manner prescribed for other conveyances of lands,
118-11 may be recorded in the same manner and with the same effect as
118-12 other deeds. The deed when recorded, if signed by an officer of
118-13 the real estate investment trust, constitutes prima facie evidence
118-14 that the resolution of the trust managers was duly adopted.
118-15 Sec. 24.20. DISPOSITION OF ASSETS REQUIRING SPECIAL
118-16 AUTHORIZATION OF SHAREHOLDERS; EFFECT OF DISPOSITION REQUIRING OR
118-17 NOT REQUIRING AUTHORIZATION; LIABILITY OF ACQUIRING ENTITY. (A) A
118-18 sale, lease, exchange, or other disposition (not including any
118-19 pledge, mortgage, deed of trust, or trust indenture unless
118-20 otherwise provided in the declaration of trust) of all, or
118-21 substantially all, the property and assets, with or without the
118-22 good will, of a real estate investment trust, if not made in the
118-23 usual and regular course of its business, may be made on the terms
118-24 and conditions and for the consideration that may consist in whole
118-25 or in part of money or real or personal property, including shares
118-26 of any real estate investment trust or domestic or foreign
118-27 corporation, as may be authorized in the following manner:
119-1 (1) The trust managers may adopt a resolution
119-2 recommending that the sale, lease, exchange, or other disposition
119-3 of the property and assets of a real estate investment trust be
119-4 approved by shareholders of the real estate investment trust,
119-5 unless the trust managers determine that for any reason they should
119-6 not make the recommendation, in which case the trust managers may
119-7 adopt a resolution directing that the sale, lease, exchange, or
119-8 other disposition be submitted to shareholders without approval
119-9 and, in connection with the submission, communicate the basis for
119-10 its determination that the sale, lease, exchange, or other
119-11 disposition be submitted without shareholder approval.
119-12 (2) The trust managers may submit the proposed sale,
119-13 lease, exchange, or other disposition for authorization by the real
119-14 estate investment trust's shareholders at an annual or special
119-15 meeting of shareholders.
119-16 (3) Written or printed notice shall be given to each
119-17 shareholder of record entitled to vote at the meeting within the
119-18 time and in the manner provided for in this Act for giving notice
119-19 of meetings to shareholders. The notice must state that the
119-20 purpose, or one of the purposes, of the meeting is to consider the
119-21 proposed sale, lease, exchange, or other disposition of the assets
119-22 or property of the real estate investment trust.
119-23 (4) At the meeting, the shareholders may authorize the
119-24 sale, lease, exchange, or other disposition of the assets and
119-25 property and may fix, or may authorize the trust managers to fix,
119-26 any or all of the terms and conditions of the disposition and the
119-27 consideration to be received by the real estate investment trust
120-1 for the disposition. The authorization shall require the
120-2 affirmative vote of the holders of at least two-thirds of the
120-3 outstanding shares of the real estate investment trust entitled to
120-4 vote on the authorization, unless any class or series of shares of
120-5 the real estate investment trust is entitled to vote as a class on
120-6 the authorization, in which case the vote required for
120-7 authorization by the shareholders shall be the affirmative vote of
120-8 the holders of at least two-thirds of the outstanding shares within
120-9 each such class or series entitled to vote on the authorization as
120-10 a class and at least two-thirds of the outstanding shares otherwise
120-11 entitled to vote on the authorization. Shares entitled to vote as
120-12 a class shall be entitled to vote only as a class unless otherwise
120-13 entitled to vote on each matter submitted to the shareholders
120-14 generally or provided in the declaration of trust.
120-15 (5) After the authorization for the disposition of the
120-16 assets and property by vote of shareholders, the trust managers,
120-17 nevertheless, in their discretion may abandon the sale, lease,
120-18 exchange, or other disposition of assets, subject to the rights of
120-19 third parties under any contracts relating to the assets, without
120-20 further action or approval by shareholders.
120-21 (B) A disposition of any, all, or substantially all of the
120-22 property and assets of a real estate investment trust, whether or
120-23 not it requires the special authorization of the shareholders of
120-24 the real estate investment trust, effected under Subsection (A) of
120-25 this Section or under Section 23.60 of this Act or otherwise:
120-26 (1) is not considered to be a merger pursuant to this
120-27 Act or otherwise; and
121-1 (2) except as otherwise expressly provided by another
121-2 statute, does not make the acquiring real estate investment trust,
121-3 corporation, partnership, or other entity responsible or liable for
121-4 any liability or obligation of the selling real estate investment
121-5 trust that the acquiring entity did not expressly assume.
121-6 Sec. 25.10. RIGHTS OF DISSENTING SHAREHOLDERS IN THE EVENT
121-7 OF CERTAIN ACTIONS. (A) Any shareholder of a domestic real estate
121-8 investment trust may dissent from any of the following actions:
121-9 (1) any plan of merger to which the real estate
121-10 investment trust is a party if shareholder approval is required by
121-11 Section 23.30 of this Act and the shareholder holds shares of a
121-12 class or series that was entitled to vote on the plan of merger as
121-13 a class or otherwise;
121-14 (2) any sale, lease, exchange, or other disposition
121-15 (not including any pledge, mortgage, deed of trust, or trust
121-16 indenture unless otherwise provided in the declaration of trust) of
121-17 all, or substantially all, of the property and assets, with or
121-18 without good will, of a real estate investment trust requiring the
121-19 special authorization of the shareholders as provided by this Act;
121-20 or
121-21 (3) any plan of exchange pursuant to Section 23.20 of
121-22 this Act in which the shares of the real estate investment trust of
121-23 the class or series held by the shareholder are to be acquired.
121-24 (B) Notwithstanding Subsection (A) of this Section, a
121-25 shareholder may not dissent from any plan of merger in which there
121-26 is a single surviving or new domestic or foreign corporation, real
121-27 estate investment trust, partnership, or other entity, or from any
122-1 plan of exchange, if:
122-2 (1) the shares held by the shareholder are part of a
122-3 class or series, and on the record date fixed to determine the
122-4 shareholders entitled to vote on the plan of merger or plan of
122-5 exchange, the shares are:
122-6 (a) listed on a national securities exchange;
122-7 (b) designated as a national market security on
122-8 an interdealer quotation system by the National Association of
122-9 Securities Dealers, Inc., or successor entity; or
122-10 (c) held of record by not less than 2,000
122-11 holders; and
122-12 (2) the shareholder is not required by the terms of
122-13 the plan of merger or the plan of exchange to accept any
122-14 consideration for the shareholder's shares other than:
122-15 (a) shares of a domestic or foreign entity that,
122-16 immediately after the effective date of the merger or exchange,
122-17 will be part of a class or series, shares of which are (i) listed,
122-18 or authorized for listing upon official notice of issuance, on a
122-19 national securities exchange; (ii) approved for quotation as a
122-20 national market security on an interdealer quotation system by the
122-21 National Association of Securities Dealers, Inc., or successor
122-22 entity; or (iii) held of record by not less than 2,000 holders;
122-23 (b) cash in lieu of fractional shares otherwise
122-24 entitled to be received; or
122-25 (c) any combination of the securities and cash
122-26 described in this Subdivision.
122-27 Sec. 25.20. PROCEDURE FOR DISSENT BY SHAREHOLDERS AS TO
123-1 ACTIONS. (A) Any shareholder of any domestic real estate
123-2 investment trust who has the right to dissent from any of the
123-3 actions referred to in Section 25.10 of this Act may exercise that
123-4 right to dissent only by complying with the following procedures:
123-5 (1)(a) With respect to a proposed action that is
123-6 submitted to a vote of shareholders at a meeting, the shareholder
123-7 shall file with the real estate investment trust, before the
123-8 meeting, a written objection to the action. The shareholder's
123-9 objection must state that the shareholder will exercise the
123-10 shareholder's right to dissent if the action is effective and must
123-11 contain the shareholder's address, to which notice of the action
123-12 shall be delivered or mailed in that event. If the action is
123-13 effected and the shareholder did not vote in favor of the action,
123-14 the real estate investment trust, in the case of action other than
123-15 a merger, or the surviving or new entity that is liable in the case
123-16 of a merger to discharge the shareholder's right of dissent, shall
123-17 deliver or mail to the shareholder written notice that the action
123-18 has been effected within 10 days after the action is effected. The
123-19 shareholder may make a written demand on the existing, surviving,
123-20 or new entity for payment of the fair value of the shareholder's
123-21 shares within 10 days from the delivery or mailing of the notice.
123-22 The fair value of the shares shall be the value of the shares on
123-23 the day before the meeting, excluding any appreciation or
123-24 depreciation in anticipation of the proposed action. The demand
123-25 shall state the number and class of the shares owned by the
123-26 shareholder and the fair value of the shares as estimated by the
123-27 shareholder. A shareholder who fails to make a demand within the
124-1 10-day period is bound by the action.
124-2 (b) With respect to a proposed action that is
124-3 approved pursuant to Subsection (A) of Section 10.30 of this Act,
124-4 the real estate investment trust, in the case of action other than
124-5 a merger, and the surviving or new entity that is liable in the
124-6 case of a merger to discharge the shareholder's right of dissent,
124-7 within 10 days after the date the action takes effect, shall mail
124-8 to each shareholder of record as of the date the action takes
124-9 effect notice of the fact and date of the action and that the
124-10 shareholder may exercise the shareholder's right to dissent from
124-11 the action. The notice shall be accompanied by a copy of this
124-12 Section and any articles or documents filed by the real estate
124-13 investment trust with the secretary of state to effect the action.
124-14 If the shareholder did not consent to the taking of the action, the
124-15 shareholder may make written demand on the existing, surviving, or
124-16 new entity for payment of the fair value of the shareholder's
124-17 shares within 20 days after the mailing of the notice. The fair
124-18 value of the shares shall be the value of the shares on the date
124-19 the written consent authorizing the action was delivered to the
124-20 real estate investment trust pursuant to Subsection (A) of Section
124-21 10.30 of this Act, excluding any appreciation or depreciation in
124-22 anticipation of the action. The demand shall state the number and
124-23 class of shares owned by the dissenting shareholder and the fair
124-24 value of the shares as estimated by the shareholder. Any
124-25 shareholder failing to make demand within the 20-day period is
124-26 bound by the action.
124-27 (2) Within 20 days after receipt by the existing,
125-1 surviving, or new entity of a demand for payment made by a
125-2 dissenting shareholder in accordance with Subdivision (1) of this
125-3 Subsection, the entity shall deliver or mail to the shareholder a
125-4 written notice that shall either set out that the entity accepts
125-5 the amount claimed in the demand and agrees to pay that amount
125-6 within 90 days after the date on which the action was effected,
125-7 and, in the case of shares represented by certificates, on the
125-8 surrender of the certificates duly endorsed, or shall contain an
125-9 estimate by the entity of the fair value of the shares and an offer
125-10 to pay the amount of that estimate within 90 days after the date on
125-11 which the action was effected, on receipt of notice within 60 days
125-12 after that date from the shareholder that the shareholder agrees to
125-13 accept that amount and, in the case of shares represented by
125-14 certificates, on the surrender of the certificates duly endorsed.
125-15 (3) If, within 60 days after the date on which the
125-16 real estate investment trust action was effected, the value of the
125-17 shares is agreed on between the shareholder and the existing,
125-18 surviving, or new entity, payment for the shares shall be made
125-19 within 90 days after the date on which the action was effected and,
125-20 in the case of shares represented by certificates, on surrender of
125-21 the certificates duly endorsed. On payment of the agreed value,
125-22 the shareholder ceases to have any interest in the shares or in the
125-23 real estate investment trust.
125-24 (B) If, within 60 days after the date on which the action
125-25 was effected, the shareholder and the existing, surviving, or new
125-26 entity do not agree on the value of the shares, the shareholder or
125-27 entity, within 60 days after the expiration of the 60-day period,
126-1 may file a petition in any court of competent jurisdiction in the
126-2 county in which the principal office of the domestic real estate
126-3 investment trust is located, asking for a finding and determination
126-4 of the fair value of the shareholder's shares. On the filing of a
126-5 petition by the shareholder, service of a copy of the petition must
126-6 be made on the entity. The entity, within 10 days after receiving
126-7 the service, shall file in the office of the clerk of the court in
126-8 which the petition was filed a list containing the names and
126-9 addresses of all shareholders of the domestic real estate
126-10 investment trust who have demanded payment for their shares and
126-11 with whom agreements as to the value of their shares have not been
126-12 reached by the entity. If the petition is filed by the entity, the
126-13 list described in this Subsection must be attached to the petition.
126-14 The clerk of the court shall give notice of the time and place
126-15 fixed for the hearing of the petition by registered mail to the
126-16 entity and to the shareholders named on the list at the addresses
126-17 stated in the list. The court shall approve the forms of notices
126-18 sent by mail. All shareholders notified as required by this
126-19 Subsection and the entity are bound by the final judgment of the
126-20 court.
126-21 (C) After the hearing of a petition filed under this
126-22 Section, the court shall determine which shareholders have complied
126-23 with the provisions of this Section and have become entitled to the
126-24 valuation of and payment of their shares. The court shall appoint
126-25 one or more qualified appraisers to determine that value. The
126-26 appraisers may examine any books and records of the real estate
126-27 investment trust that relate to the shares the appraisers are
127-1 charged with the duty of valuing. The appraisers shall make a
127-2 determination of the fair value of the shares after conducting an
127-3 investigation. The appraisers shall also afford a reasonable
127-4 opportunity to allow interested parties to submit to the appraisers
127-5 pertinent evidence relating to the value of the shares. The
127-6 appraisers also have the power and authority that may be conferred
127-7 on masters in chancery by the Texas Rules of Civil Procedure.
127-8 (D) The appraisers shall determine the fair value of the
127-9 shares of the shareholders adjudged by the court to be entitled to
127-10 payment for their shares and shall file their report of that value
127-11 in the office of the clerk of the court. The clerk shall give
127-12 notice of the filing of the appraisers report to interested
127-13 parties. The appraisers report shall be subject to exceptions to
127-14 be heard before the court both on the law and the facts. The court
127-15 shall determine the fair value of the shares of the shareholders
127-16 entitled to payment for their shares and shall order the existing,
127-17 surviving, or new entity to pay that value, together with interest
127-18 on the value of shares to the shareholders entitled to payment,
127-19 beginning 91 days after the date on which the applicable action
127-20 from which the shareholder elected to dissent was effected to the
127-21 date of such judgment. The judgment shall be immediately payable
127-22 to the holders of uncertificated shares. The judgment shall be
127-23 payable to the holders of shares represented by certificates only
127-24 on, and simultaneously with, the surrender to the existing,
127-25 surviving, or new entity of duly endorsed certificates for those
127-26 shares. On payment of the judgment, the dissenting shareholders
127-27 cease to have any interest in those shares or in the real estate
128-1 investment trust. The court shall allow the appraisers a
128-2 reasonable fee as court costs, and all court costs shall be
128-3 allocated between the parties in the manner that the court
128-4 determines to be fair and equitable.
128-5 (E) Shares acquired by the existing, surviving, or new
128-6 entity, pursuant to the payment of the agreed value of the shares,
128-7 to the payment of the agreed value of the shares, or to payment of
128-8 the judgment entered for the value of the shares, as provided in
128-9 this Section, in the case of a merger, shall be treated as provided
128-10 in the plan of merger and, in all other cases, may be held and
128-11 disposed of by the real estate investment trust as in the case of
128-12 other treasury shares.
128-13 (F) This Section does not apply to a merger if, on the date
128-14 of the filing of the articles of merger, the surviving entity is
128-15 the owner of all the outstanding shares of the other entities,
128-16 domestic or foreign, that are parties to the merger.
128-17 (G) In the absence of fraud in the transaction, the remedy
128-18 provided by this Section to a shareholder objecting to any action
128-19 referred to in Section 25.10 of this Act is the exclusive remedy
128-20 for the recovery of the value of the shareholder's shares or money
128-21 damages to the shareholder with respect to the action. If the
128-22 existing, surviving, or new entity complies with the requirements
128-23 of this Section, any shareholder who fails to comply with the
128-24 requirements of this Section is not entitled to bring suit for the
128-25 recovery of the value of the shareholder's shares or money damages
128-26 to the shareholder with respect to the action.
128-27 Sec. 25.30. PROVISIONS AFFECTING REMEDIES OF DISSENTING
129-1 SHAREHOLDERS. (A) Any shareholder who has demanded payment for
129-2 the shareholder's shares in accordance with Section 25.20 of this
129-3 Act is not entitled to vote or exercise any other rights of a
129-4 shareholder except the right to receive payment for the
129-5 shareholder's shares pursuant to the provisions of that Section and
129-6 the right to maintain an appropriate action to obtain relief on the
129-7 ground that the action would be or was fraudulent. The respective
129-8 shares for which payment has been demanded may not be considered
129-9 outstanding for the purposes of any subsequent vote of
129-10 shareholders.
129-11 (B) On receiving a demand for payment from any dissenting
129-12 shareholder, the real estate investment trust shall make an
129-13 appropriate notation of the demand in its shareholder records.
129-14 Within 20 days after demanding payment for shares in accordance
129-15 with Section 25.20 of this Act, each holder of certificates
129-16 representing those shares shall submit the certificates to the real
129-17 estate investment trust for notation on the certificates that such
129-18 demand has been made. The failure of holders of certificated
129-19 shares to submit the certificates to the real estate investment
129-20 trust, at the option of the real estate investment trust, shall
129-21 terminate the shareholder's rights under Section 25.20 of this Act
129-22 unless a court of competent jurisdiction for good and sufficient
129-23 cause shown directs otherwise. If uncertificated shares for which
129-24 payment has been demanded or shares represented by a certificate on
129-25 which the real estate investment trust has made a notation under
129-26 this Subsection are transferred, any new certificate issued for
129-27 those shares shall bear similar notation together with the name of
130-1 the original dissenting holder of those shares, and a transferee of
130-2 those shares shall acquire by the transfer no rights in the real
130-3 estate investment trust other than those which the original
130-4 dissenting shareholder had after making demand for payment of the
130-5 fair value of the shares.
130-6 (C) Any shareholder who has demanded payment for the
130-7 shareholder's shares in accordance with Section 25.20 of this Act
130-8 may withdraw that demand at any time before payment of those shares
130-9 has been made or before any petition has been filed pursuant to
130-10 Section 25.20 of this Act. The demand may not be withdrawn after
130-11 the payment of the shares has been made or after any such petition
130-12 has been filed, unless the real estate investment trust consents to
130-13 the withdrawal of the demand. The shareholder and all persons
130-14 claiming under the shareholder shall be conclusively presumed to
130-15 have approved and ratified the action from which the shareholder
130-16 dissented and shall be bound by the action, the rights of the
130-17 shareholder to be paid the fair value of the shareholder's shares
130-18 shall cease, and the shareholder's status as a shareholder shall be
130-19 restored without prejudice to any proceedings that may have been
130-20 taken during the interim, and the shareholder is entitled to
130-21 receive any dividends or other distributions made to the
130-22 shareholders in the interim if:
130-23 (1) the demand is withdrawn as provided in this
130-24 Subsection;
130-25 (2) pursuant to Subsection (B) of this Section, the
130-26 demand terminates the shareholder's rights under Section 25.20 of
130-27 this Act;
131-1 (3) no petition asking for a court finding and
131-2 determination of fair value of such shares has been filed within
131-3 the time provided in Section 25.20 of this Act; or
131-4 (4) the court determines, after the hearing of a
131-5 petition filed under Section 25.20, that the shareholder is not
131-6 entitled to the relief provided by that Section.
131-7 Sec. 26.10. REORGANIZATION UNDER A FEDERAL STATUTE.
131-8 (A) Notwithstanding any other provision of this Act to the
131-9 contrary, a trustee appointed for a real estate investment trust
131-10 being reorganized under a federal statute, the designated officers
131-11 of the real estate investment trust, or any other individual or
131-12 individuals designated by the court to act on behalf of the real
131-13 estate investment trust may do any of the following without action
131-14 by or notice to its trust managers or shareholders in order to
131-15 carry out a plan of reorganization ordered or decreed by a court of
131-16 competent jurisdiction under the federal statute:
131-17 (1) amend or restate its declaration of trust if the
131-18 declaration of trust after amendment or restatement contains only
131-19 provisions required or permitted in a declaration of trust;
131-20 (2) merge or engage in a share exchange with one or
131-21 more domestic or foreign real estate investment trusts,
131-22 corporations, partnerships, or other entities pursuant to a plan of
131-23 merger or exchange having such terms and provisions as required or
131-24 permitted by Sections 23.10 and 23.20 of this Act;
131-25 (3) change the location of its registered office,
131-26 change its registered agent, and remove or appoint any agent to
131-27 receive service of process;
132-1 (4) alter, amend, or repeal its bylaws;
132-2 (5) constitute or reconstitute and classify or
132-3 reclassify its trust managers, and name, constitute, or appoint
132-4 trust managers and officers in place of or in addition to all or
132-5 some of the officers or trust managers then in place;
132-6 (6) sell, lease, exchange, or otherwise dispose of
132-7 all, or substantially all, of its property and assets;
132-8 (7) authorize and fix the terms, manner, and
132-9 conditions of the issuance of bonds, debentures, or other
132-10 obligations, whether or not convertible into shares of any class or
132-11 bearing warrants or other evidences of optional rights to purchase
132-12 or subscribe for any shares of any class; or
132-13 (8) dissolve.
132-14 (B) Actions taken under Subdivision (4) or (5) of Subsection
132-15 (A) of this Section take effect on the date the order or decree
132-16 approving the plan of reorganization is entered or on another
132-17 effective date as may be specified, without further action of the
132-18 real estate investment trust, as and to the extent set forth in the
132-19 plan of reorganization or the order or decree approving the plan of
132-20 reorganization.
132-21 (C) A trustee appointed for a real estate investment trust
132-22 being reorganized under a federal statute, the designated officers
132-23 of the real estate investment trust, or any other individual or
132-24 individuals designated by the court on behalf of a real estate
132-25 investment trust that is being reorganized, may sign:
132-26 (1) articles of amendment or a restated declaration of
132-27 trust setting forth:
133-1 (a) the name of the real estate investment
133-2 trust;
133-3 (b) the text of each amendment or the
133-4 restatement approved by the court;
133-5 (c) the date of the court's order or decree
133-6 approving the articles of amendment or restatement;
133-7 (d) the court, file name, and case number of the
133-8 reorganization case in which the order or decree was entered; and
133-9 (e) a statement that the court had jurisdiction
133-10 of the case under federal statute;
133-11 (2) articles of merger or exchange setting forth:
133-12 (a) the name of the real estate investment
133-13 trust;
133-14 (b) the text of the part of the plan of
133-15 reorganization that contains the plan of merger or exchange
133-16 approved by the court and that shall include the information
133-17 required by Section 23.40 of this Act, as applicable;
133-18 (c) the date of the court's order or decree
133-19 approving the plan of merger or consolidation;
133-20 (d) the court, file name, and case number of the
133-21 reorganization case in which the order or decree was entered; and
133-22 (e) a statement that the court had jurisdiction
133-23 of the case under federal statute; or
133-24 (3) articles of dissolution setting forth:
133-25 (a) the name of the real estate investment
133-26 trust;
133-27 (b) the information required by Section 19.10 of
134-1 this Act, if any;
134-2 (c) the date of the court's order or decree
134-3 approving the articles of dissolution;
134-4 (d) a statement that the debts, obligations, and
134-5 liabilities of the real estate investment trust have been paid or
134-6 discharged as provided in the plan of reorganization and that the
134-7 remaining property and assets of the real estate investment trust
134-8 have been distributed as provided in the plan of reorganization;
134-9 (e) the court, file name, and case number of the
134-10 reorganization case in which the order or decree was entered; and
134-11 (f) a statement that the court had jurisdiction
134-12 of the case under federal statute.
134-13 (D) The following apply when a domestic or foreign real
134-14 estate investment trust, corporation, partnership, or other entity
134-15 that is not being reorganized merges or engages in a share exchange
134-16 with a real estate investment trust that is being reorganized
134-17 pursuant to a plan of reorganization:
134-18 (1) Sections 23.10, 23.20, 23.30, 25.10, 25.20, and
134-19 25.30 of this Act apply to the domestic or foreign real estate
134-20 investment trust, corporation, partnership, or other entity that is
134-21 not being reorganized to the same extent those sections would apply
134-22 if that entity were merging or engaging in a share exchange with a
134-23 real estate investment trust that is not being reorganized.
134-24 (2) Section 23.60 of this Act applies to the domestic
134-25 or foreign real estate investment trust, corporation, partnership,
134-26 or other entity that is not being reorganized to the same extent
134-27 that Section would apply if the domestic or foreign real estate
135-1 investment trust, corporation, partnership, or other entity were
135-2 merging or engaging in a share exchange with a real estate
135-3 investment trust that is not being reorganized, except as otherwise
135-4 provided in the plan of reorganization ordered or decreed by a
135-5 court of competent jurisdiction under the federal statute.
135-6 (3) On receiving all of the required authorization for
135-7 all action required by this Act for each real estate investment
135-8 trust that is a party to the plan of merger or exchange that is not
135-9 being reorganized and all action by each domestic or foreign real
135-10 estate investment trust, corporation, partnership, or other entity
135-11 that is a party to the plan of merger or exchange required by the
135-12 laws under which it is incorporated or organized and its
135-13 constituent documents, each domestic or foreign real estate
135-14 investment trust, corporation, partnership, or other entity that is
135-15 a party to the merger or exchange other than the real estate
135-16 investment trust that is being reorganized as provided in Section
135-17 23.40 of this Act, the persons described by Subsection (C) of this
135-18 Section, on behalf of the real estate investment trust that is
135-19 being reorganized, shall sign the articles of merger or exchange.
135-20 (4) The articles of merger or exchange shall set forth
135-21 the information required in Subdivision (2) of Subsection (C) of
135-22 this Section.
135-23 (5) The articles of merger or exchange shall be filed
135-24 with the county clerk in each county where the principal place of
135-25 business of a Texas real estate investment trust that is a party to
135-26 the merger or exchange is located in the manner and with the number
135-27 of copies provided in Section 23.40 of this Act.
136-1 (6) On the filing of the articles of merger or share
136-2 exchange as provided in Section 23.40 of this Act, the merger or
136-3 share exchange becomes effective with the same effect as if the
136-4 merger or share exchange had been adopted by unanimous action of
136-5 the trust managers and shareholders of the real estate investment
136-6 trust being reorganized. The effectiveness of the merger or share
136-7 exchange shall be determined as provided in Section 23.50 of this
136-8 Act.
136-9 (E) Shareholders of a real estate investment trust being
136-10 reorganized under a federal statute do not have a right to dissent
136-11 under this Act, unless the plan of reorganization provides
136-12 otherwise.
136-13 (F) This Section does not apply after a final decree is
136-14 entered by a court in the reorganization case even though the court
136-15 may retain jurisdiction of the case for limited purposes unrelated
136-16 to consummation of the plan of reorganization.
136-17 (G) This Section does not preclude other changes in real
136-18 estate investment securities by a plan of reorganization ordered or
136-19 decreed by a court of competent jurisdiction under federal statute.
136-20 Sec. 27.10. DELAYED EFFECTIVENESS OF CERTAIN FILINGS.
136-21 (A) A permitted act may be made effective at a time and date after
136-22 the time and date otherwise provided for the permitted act in this
136-23 Act or may be made effective on the occurrence of future events or
136-24 facts, including future acts of any person or entity, if:
136-25 (1) the articles, statement, application, or other
136-26 filing that is required to be filed with the county clerk of the
136-27 county of the principal place of business of the real estate
137-1 investment trust by this Act to make effective the permitted act
137-2 clearly and expressly set forth, in addition to any other statement
137-3 or information required to be set forth in those documents:
137-4 (a) the time and date on which the permitted act
137-5 is to become effective or whether the permitted act is to become
137-6 effective on the occurrence of a future event or fact;
137-7 (b) the manner in which the future event or fact
137-8 shall operate to cause the permitted act to become effective; and
137-9 (c) the date of the 90th day after the date of
137-10 the filing of the articles, statement, application, or other
137-11 filing;
137-12 (2) in the case of a permitted act that is to become
137-13 effective as of a time or date after the time and date otherwise
137-14 provided in this Act, the subsequent time and date is not more than
137-15 90 days after the date of the filing of the articles, statement,
137-16 application, or other filing that is otherwise required by this Act
137-17 to be filed with the county clerk of the county of the principal
137-18 place of business of the real estate investment trust to make
137-19 effective the permitted act and the time on which the permitted act
137-20 is to become effective is not midnight or noon; and
137-21 (3) in the case of a permitted act that is to take
137-22 effect on the occurrence of events or facts that may occur in the
137-23 future, other than the mere passage of time, a statement that all
137-24 the events or facts on which the effectiveness of the permitted act
137-25 is conditioned have been satisfied or waived, including the date on
137-26 which the condition was satisfied or waived, is filed with the
137-27 county clerk of the county of the principal place of business of
138-1 the real estate investment trust within 90 days of the date of the
138-2 filing of the articles, statement, application, or other filing
138-3 that is otherwise required by this Act for the permitted act to
138-4 become effective.
138-5 (B) The statement required by Subdivision (3) of Subsection
138-6 (A) of this Section shall be executed on behalf of each domestic or
138-7 foreign real estate investment trust, corporation, partnership, or
138-8 other entity that was required to execute the articles, statement,
138-9 application, or other filing that is otherwise required to be filed
138-10 with the county clerk of the county of the principal place of
138-11 business of the real estate investment trust to make effective the
138-12 permitted act by this Act by an officer or other duly authorized
138-13 representative of the entity, including an officer or duly
138-14 authorized representative of any successor domestic or foreign real
138-15 estate investment trust, corporation, partnership, or other entity.
138-16 The original statement and a copy of the original statement must be
138-17 filed with the county clerk of the county of the principal place of
138-18 business of the real estate investment trust.
138-19 (C) If any permitted act is to take effect as of a time or
138-20 date after the time and date otherwise provided in this Act for the
138-21 permitted act to become effective, notwithstanding any other
138-22 provision of this Act to the contrary, the permitted act, to the
138-23 extent permitted by Subsection (A) of this Section, shall take
138-24 effect on that subsequent time and date.
138-25 (D) If any permitted act is to be made effective on the
138-26 occurrence of future events or facts, other than the mere passage
138-27 of time, and the statement required by Subdivision (3) of
139-1 Subsection (A) of this Section is filed with the county clerk of
139-2 the county of the principal place of business of the real estate
139-3 investment trust within the time prescribed in that Subdivision,
139-4 the permitted act takes effect on the time and date on which the
139-5 latest specified event or fact occurs or the time and date on which
139-6 the condition is otherwise satisfied or waived. The time and date
139-7 on which a condition to the effectiveness of a permitted act is
139-8 satisfied or waived as set forth in a statement filed with the
139-9 county clerk of the county of the principal place of business of
139-10 the real estate investment trust under Subdivision (3) of
139-11 Subsection (A) of this Section shall be conclusively regarded as
139-12 the time and date on which the condition was satisfied or waived
139-13 for purposes of this Section.
139-14 (E) If the effectiveness of any permitted act is conditioned
139-15 on the occurrence of future events or facts, other than the mere
139-16 passage of time, and the statement required by Subdivision (3) of
139-17 Subsection (A) of this Section is not filed with the county clerk
139-18 of the county of the principal place of business of the real estate
139-19 investment trust within the time prescribed in that Subdivision,
139-20 the permitted act may not take effect unless the articles,
139-21 statement, application, or other filing required by this Act to be
139-22 filed with the county clerk to make the permitted act effective are
139-23 subsequently filed with the county clerk of the county of the
139-24 principal place of business of the real estate investment trust.
139-25 (F) In this section, "permitted act" means:
139-26 (1) the formation of a real estate investment trust
139-27 under this Act;
140-1 (2) an amendment to a real estate investment trust's
140-2 declaration of trust, including an amendment effected pursuant to a
140-3 statement of resolution establishing a series of shares;
140-4 (3) the restatement of the declaration of trust of a
140-5 real estate investment trust;
140-6 (4) a merger or share exchange;
140-7 (5) a cancellation of redeemable or reacquired shares
140-8 or a reduction in stated capital;
140-9 (6) a voluntary dissolution;
140-10 (7) a bylaw or agreement restricting the transfer of
140-11 shares or securities of a real estate investment trust pursuant to
140-12 this Act;
140-13 (8) a change in registered office or registered agent;
140-14 or
140-15 (9) a change of address of a registered agent.
140-16 Sec. 28.10 <24>. CASES NOT PROVIDED FOR. (A) In any case
140-17 not provided for in this Act, analogous provisions of the Texas
140-18 Business Corporation Act, and the case law construing that Act,
140-19 shall govern; provided, however, that in any case where a provision
140-20 of this Act conflicts with a provision of the Texas Business
140-21 Corporation Act, the provisions of this Act control. Nothing in
140-22 this Section shall be construed to cause a provision of the Texas
140-23 Business Corporation Act to control over a similar provision of
140-24 this Act on the grounds that the Texas Business Corporation Act
140-25 provision is more or less extensive, restrictive, or detailed. <the
140-26 rules of law and equity, including the law of merchant shall
140-27 govern. For purposes of the Texas Trust Code (Subtitle B, Title 9,
141-1 Property Code) and this Act, a real estate investment trust created
141-2 hereunder shall be considered a "business trust.">
141-3 (B) Any unincorporated trust which does not meet the
141-4 requirements of this Act shall be treated as an unincorporated
141-5 association pursuant to Chapter 2 of this Title 105.
141-6 SECTION 2. This Act takes effect September 1, 1995, and
141-7 changes in law made by this Act apply only to an action or
141-8 proceeding that is commenced on or after that date. An action or
141-9 proceeding that was commenced before the effective date of this Act
141-10 is governed by the law as it existed immediately before the
141-11 effective date, and that law is continued in effect for that
141-12 purpose.
141-13 SECTION 3. The importance of this legislation and the
141-14 crowded condition of the calendars in both houses create an
141-15 emergency and an imperative public necessity that the
141-16 constitutional rule requiring bills to be read on three several
141-17 days in each house be suspended, and this rule is hereby suspended.