By Harris S.B. No. 1617
74R4137 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the Texas Real Estate Investment Trust Act.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Texas Real Estate Investment Trust Act
1-5 (Article 6138A, Vernon's Texas Civil Statutes) is amended to read
1-6 as follows:
1-7 Art. 6138A. Texas Real Estate Investment Trust Act
1-8 Sec. 1.10 <1>. Short Title. This Act shall be known and may
1-9 be cited as the "Texas Real Estate Investment Trust Act."
1-10 Sec. 2.10 <2>. Real Estate Investment Trust Defined. A real
1-11 estate investment trust is an unincorporated trust formed by one or
1-12 more trust managers under <the provisions of> Section 3.10 <3> of
1-13 this Act and managed in accordance with <the provisions of Section
1-14 4 of> this Act.
1-15 Sec. 3.10 <3>. Formation of real estate investment trust.
1-16 (A) One or more persons, may act as trust manager(s) of a real
1-17 estate investment trust by subscribing and acknowledging to a
1-18 declaration of trust before an officer duly authorized to take
1-19 acknowledgments of deeds, which shall set forth:
1-20 (1) The name of the real estate investment trust and a
1-21 statement that an assumed name certificate setting forth such name
1-22 has been filed in the manner prescribed by law.
1-23 (2) A statement that it is formed pursuant to the
1-24 provisions of this Act and has the following as its purpose:
2-1 To purchase, hold, lease, manage, sell, exchange,
2-2 develop, subdivide and improve real property and interests in real
2-3 property, and in general, to carry on any other business and do any
2-4 other acts in connection with the foregoing and to have and
2-5 exercise all powers conferred by the laws of the State of Texas
2-6 upon real estate investment trusts formed under the Texas Real
2-7 Estate Investment Trust Act, and to do any or all of the things
2-8 hereinafter set forth to the same extent as natural persons might
2-9 or could do. The term "real property" and the term "interests in
2-10 real property" for the purposes stated herein shall not include
2-11 severed mineral, oil or gas royalty interests.
2-12 (3) <As to any real property of any character, major
2-13 capital improvements must be made within fifteen (15) years of
2-14 purchase or the property must be sold. Such major capital
2-15 improvements must equal or exceed the purchase price of such real
2-16 property, if the same is unimproved property at the time of
2-17 purchase or property outside the corporate limits of a city, town
2-18 or village. Any citizen of the State of Texas may force compliance
2-19 with this provision by filing suit in any district court of this
2-20 state and shall receive from such real estate investment trust
2-21 forced to sell under this provision the sum of five per cent (5%)
2-22 of the sale price of such real property interest as compensation.>
2-23 <(4)> The post office address of its initial principal
2-24 office and place of business.
2-25 (4) <(5)> The name and business address, and post
2-26 office address, if different from the business address, of each
2-27 trust manager<, specifying the resident trust manager>.
3-1 (5) <(6)> The period of its duration, which may be for
3-2 a term of years or perpetual.
3-3 (6) <(7)> The aggregate number of shares of beneficial
3-4 interest the real estate investment trust shall have authority to
3-5 issue and the par value to be received by the real estate
3-6 investment trust for the issuance of each of such shares. If the
3-7 shares are divided into classes as permitted by Section 3.30 <3.1>
3-8 of this Act <Article>, the declaration shall provide a description
3-9 of each class, including any preferences, conversion, and other
3-10 rights, voting powers, restrictions, limitations as to dividends,
3-11 qualifications, and terms and conditions of redemption.
3-12 (7) <(8) A statement that shares of beneficial
3-13 interests will be issued only for money or property actually
3-14 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 (8) <(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 for, contracts for services to be performed for,
3-25 or 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 (9) <(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 manager(s) 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 manager(s) 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
5-9 is, 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 manager(s)
6-3 of 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 manager(s) 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 manager(s), 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 manager 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
10-23 until the third succeeding annual meeting, if there are three
10-24 classes. A classification of trust managers does not take effect
10-25 before the next annual meeting of shareholders at which trust
10-26 managers are elected unless the classification is effected by a
10-27 bylaw adopted by the shareholders. A classification of trust
11-1 managers is not effective for any real estate investment trust if
11-2 any shareholder has the right to cumulate his votes for the
11-3 election of trust managers of the real estate investment trust
11-4 unless there are nine 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 manager(s) 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 manager(s) or officers of the real
14-8 estate investment trust are trust manager(s), directors, or
14-9 officers or have a financial interest in the other real estate
14-10 investment 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 manager(s)
14-13 or 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 manager(s) or
14-19 the committee, and the trust manager(s) 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 manager(s), even though the
14-22 number of disinterested trust manager(s) 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 manager(s), a
15-5 committee of trust managers, or the shareholders.
15-6 (B) Common or interested trust manager(s) may be counted in
15-7 determining the presence of a quorum at a meeting of the trust
15-8 manager(s) 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 manager(s), by resolution
15-13 adopted by a majority of the trust manager(s), 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 manager(s), 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 manager(s) subject to the limitations set
15-23 forth in Subsections (B) and (C) of this Section.
15-24 (B) A committee of trust manager(s) does not have the
15-25 authority of the trust manager(s) 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 manager(s) 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 manager(s);
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 members of the committee; or
16-26 (12) altering or repealing any resolution of the trust
16-27 manager(s) 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 manager(s) 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 manager(s) and
17-8 the delegation to the committee of the trust managers' authority
17-9 does not relieve any trust manager of any responsibility imposed by
17-10 law.
17-11 Sec. 5.10 <5>. Registered Office and Registered Agent
17-12 <Service of Process on Real Estate Investment Trust>. (A) Each
17-13 real estate investment trust shall have and continuously maintain
17-14 in this state:
17-15 (1) a registered office that may be, but need not be,
17-16 the same as the principal office and place of business of the real
17-17 estate investment trust; and
17-18 (2) a registered agent that may be either:
17-19 (a) an individual resident in this state whose
17-20 business office is the same as the registered office of the real
17-21 estate investment trust; or
17-22 (b) a domestic corporation or real estate
17-23 investment trust or a foreign corporation authorized to transact
17-24 business in this state that has a business office that is the same
17-25 as the registered office of the real estate investment trust <The
17-26 resident trust manager(s) and any one of them if more than one and
17-27 any officer of the trust shall be an agent of such trust upon whom
18-1 any process, notice, or demand required or permitted by law to be
18-2 served upon the trust may be served>.
18-3 (B) A real estate investment trust may change its registered
18-4 office, its registered agent, or both, on filing with the county
18-5 clerk of the county where the declaration of trust was filed a
18-6 statement that is executed by an officer on behalf of the real
18-7 estate investment trust and that sets forth:
18-8 (1) The name of the real estate investment trust.
18-9 (2) The post-office address of the registered office
18-10 of the real estate investment trust.
18-11 (3) If the post-office address of the registered
18-12 office of the real estate investment trust is to be changed, the
18-13 post-office address to which the registered office is to be
18-14 changed.
18-15 (4) The name of the registered agent of the real
18-16 estate investment trust.
18-17 (5) If the registered agent of the real estate
18-18 investment trust is to be changed, the name of the successor
18-19 registered agent.
18-20 (6) A statement that the post-office address of the
18-21 registered office of the real estate investment trust or the
18-22 post-office address of the business office of the registered agent,
18-23 as changed, will be the same.
18-24 (7) A statement that the proposed change was
18-25 authorized by the trust managers of the real estate investment
18-26 trust or by an officer of the real estate investment trust who is
18-27 authorized by the trust managers to make a decision regarding the
19-1 proposed change.
19-2 (C) Any registered agent of a real estate investment trust
19-3 may resign:
19-4 (1) by giving written notice to the real estate
19-5 investment trust at the last known address of the real estate
19-6 investment trust; and
19-7 (2) by filing written notice with the county clerk of
19-8 the county where the declaration of trust was filed within 10 days
19-9 after the date on which the notice described by Subdivision (1) of
19-10 this Subsection was mailed or delivered to the real estate
19-11 investment trust.
19-12 (D) The notice described by Subsection (C)(2) of this
19-13 Section must include the last known address of the real estate
19-14 investment trust, a statement that written notice of resignation
19-15 has been given to the real estate investment trust, and the date of
19-16 the resignation.
19-17 (E) On complying with the notice requirements of Subsections
19-18 (C) and (D), the appointment of a registered agent who wants to
19-19 resign as agent terminates on the expiration of 30 days after the
19-20 date on which the notice is filed with the county clerk of the
19-21 county where the declaration of trust was filed.
19-22 (F) The address of the location of the registered office in
19-23 this state for a real estate investment trust may be changed to
19-24 another address on filing with the county clerk of the county where
19-25 the declaration of trust was filed a statement that is executed by
19-26 an officer on behalf of the real estate investment trust and that
19-27 sets forth:
20-1 (1) The name of the real estate investment trust and
20-2 the name of the trust's registered agent.
20-3 (2) The address at which the registered agent has
20-4 maintained the registered office for the real estate investment
20-5 trust.
20-6 (3) The new address at which the registered agent will
20-7 maintain the registered office for the real estate investment
20-8 trust.
20-9 (4) A statement that written notice of the change of
20-10 address has been given to the real estate investment trust at least
20-11 10 days before the filing of the statement required by this
20-12 Section.
20-13 Sec. 5.20. SERVICE OF PROCESS. (A) The president, all vice
20-14 presidents, and the registered agent of the real estate investment
20-15 trust are agents of the real estate investment trust on whom any
20-16 process, notice, or demand required or permitted by law to be
20-17 served on the real estate investment trust may be served.
20-18 (B) When a real estate investment trust fails to appoint or
20-19 maintain a registered agent in this state, or when the registered
20-20 agent of the real estate investment trust cannot with reasonable
20-21 diligence be found at the registered office, the Secretary of State
20-22 shall be an agent of the real estate investment trust on whom any
20-23 process, notice, or demand may be served. Service of any process,
20-24 notice, or demand on the Secretary of State shall be made by
20-25 delivering to and leaving with the Secretary of State, the
20-26 Assistant Secretary of State, or any clerk having charge of the
20-27 corporation department of the office of the Secretary of State,
21-1 duplicate copies of the process, notice, or demand. If any
21-2 process, notice, or demand is served on the Secretary of State
21-3 under this Section, the Secretary of State shall immediately
21-4 forward by registered mail one of the copies of the process,
21-5 notice, or demand to the real estate investment trust at its
21-6 registered office. Any service made on the Secretary of State
21-7 shall be returnable in not less than 30 days.
21-8 (C) The Secretary of State shall keep a record of all
21-9 processes, notices, and demands served on the Secretary of State
21-10 under this Section. The record must include the time of the
21-11 service and the action of the Secretary of State with regard to the
21-12 process, notice, or demand.
21-13 Sec. 6.10 <6>. General Powers of Real Estate Investment
21-14 Trust. (A) Subject to the provisions of paragraphs (B) and (C) of
21-15 this Section, each real estate investment trust shall have power:
21-16 (1) To have perpetual succession by its trust name
21-17 unless a limited period of duration is stated in its declaration of
21-18 trust.
21-19 (2) To sue and be sued, complain and defend, in its
21-20 trust name.
21-21 (3) To purchase, receive, lease, or otherwise acquire,
21-22 own, hold, improve, use and otherwise deal in and with, real or
21-23 personal property or any interest therein, wherever situated, as
21-24 the purposes of the real estate investment trust shall require<,
21-25 but the trust shall not own more than one thousand (1,000) acres
21-26 outside the corporate limits of a town or city at any one time>.
21-27 (4) To sell, convey, mortgage, pledge, lease,
22-1 exchange, transfer and otherwise dispose of all or any part of its
22-2 property and assets.
22-3 (5) To lend money to, and otherwise assist, the
22-4 employees, officers, and trust managers of the real estate
22-5 investment trust if the loan or assistance may reasonably be
22-6 expected to benefit, directly or indirectly, the lending or
22-7 assisting real estate investment trust.
22-8 (6) <(5)> To purchase, receive, subscribe for, or
22-9 otherwise acquire, own, hold, vote, use, employ, mortgage, lend,
22-10 pledge, sell or otherwise dispose of, and otherwise use and deal in
22-11 and with, securities, shares or other interests in, or obligations
22-12 of, domestic or foreign corporations, associations, partnerships,
22-13 other real estate investment trusts, or individuals, or direct or
22-14 indirect obligations of the United States or of any other
22-15 government, state, territory, government district, or municipality,
22-16 or of any instrumentality thereof.
22-17 (7) To purchase or otherwise acquire its own bonds,
22-18 debentures, or other evidences of its indebtedness or obligations;
22-19 to purchase or otherwise acquire its own unredeemable shares and
22-20 hold those acquired shares as treasury shares or cancel or
22-21 otherwise dispose of those acquired shares; and to redeem or
22-22 purchase shares made redeemable by the provisions of its
22-23 declaration of trust.
22-24 (8) <(6)> To make contracts, and incur liabilities,
22-25 borrow money at such rates of interest as the trust may determine,
22-26 issue its notes, bonds, and other obligations, and secure any of
22-27 its obligations by mortgage or pledge of all or any of its
23-1 property, franchises, and income.
23-2 (9) <(7)> To lend money for its trust purposes, invest
23-3 and reinvest its funds, and take and hold real and personal
23-4 property as security for the payment of funds so loaned or
23-5 invested.
23-6 (10) <(8)> To conduct its business, carry on its
23-7 operations, and have offices and exercise the powers granted by
23-8 this Act in any state, territory, district or possession of the
23-9 United States, or in any foreign country.
23-10 (11) <(9)> To elect or appoint officers and agents of
23-11 the trust for such period of time as the real estate investment
23-12 trust may determine, and define their duties and fix their
23-13 compensation.
23-14 (12) <(10)> To make and alter bylaws <by-laws>, not
23-15 inconsistent with its declaration of trust or with the laws of this
23-16 state, for the administration and regulation of the affairs of the
23-17 real estate investment trust.
23-18 (13) To make donations for the public welfare or for
23-19 charitable, scientific, or educational purposes.
23-20 (14) To transact any lawful business that the trust
23-21 managers find will aid government policy.
23-22 (15) To indemnify trust managers, officers, employees,
23-23 and agents of the real estate investment trust and to purchase and
23-24 maintain liability insurance for those persons.
23-25 (16) To pay pensions and establish pension plans,
23-26 pension trusts, profit sharing plans, stock option plans, stock
23-27 bonus plans, and other incentive plans for any or all of, or any
24-1 class or classes of, its trust managers, officers or employees.
24-2 (17) To be an organizer, partner, member, associate,
24-3 or manager of any partnership, joint venture, or other enterprise,
24-4 and to the extent permitted in any other jurisdiction, to be an
24-5 incorporator of any other corporation of any type or kind.
24-6 (18) <(11)> To cease its trust activities and
24-7 terminate its existence by voluntary dissolution.
24-8 (19) To engage in activities that are mandated or
24-9 authorized by sections of the Internal Revenue Code of 1986 that
24-10 relate to or govern real estate investment trusts or the
24-11 regulations adopted under that law.
24-12 (20) <(12)> Whether included in the foregoing or not,
24-13 to have and exercise, all powers necessary or appropriate to effect
24-14 any or all of the purposes for which the real estate investment
24-15 trust is organized.
24-16 (B) Nothing in this Section grants any authority to officers
24-17 or trust manager(s) of a real estate investment trust to perform
24-18 any of the foregoing powers inconsistent with the limitations on
24-19 any of the same which may be expressly set forth in this Act or in
24-20 the declaration of trust or in any other laws of this state.
24-21 Authority of officers and trust manager(s) to act beyond the scope
24-22 of the purpose or purposes of a real estate investment trust is not
24-23 granted by any provision of this Section.
24-24 (C) Nothing contained in this Act shall be deemed to
24-25 authorize any action in violation of the antitrust laws <Anti-Trust
24-26 Laws> of this state as now existing or hereafter amended.
24-27 Sec. 7.10. SUBSCRIPTION FOR SHARES. (A) Unless otherwise
25-1 provided in the subscription, a subscription for shares of a real
25-2 estate investment trust to be organized may not be revoked within
25-3 six months, except with the consent of all other subscribers.
25-4 (B) In the case of a real estate investment trust to be
25-5 organized, the filing of the declaration of trust with the county
25-6 clerk of the county of the principal place of business of the real
25-7 estate investment trust constitutes acceptance by the real estate
25-8 investment trust of all subscriptions for shares that are contained
25-9 in a list of subscriptions filed with the declaration of trust.
25-10 The list of subscriptions shall contain the name, post-office
25-11 address, number of shares, and amount paid by each subscriber.
25-12 Failure to include a subscription for shares in the list of
25-13 subscriptions constitutes a rejection of the offer.
25-14 (C) In the case of an existing real estate investment trust,
25-15 acceptance of a subscription for shares is effected by a resolution
25-16 of acceptance by the trust manager(s) or by a written memorandum of
25-17 acceptance of the subscription for shares executed by a person
25-18 authorized to execute the memorandum by the trust manager(s) and
25-19 delivered to the subscriber or the subscriber's assignee.
25-20 (D) Subscriptions for shares, whether made before or after
25-21 the organization of a real estate investment trust, shall be paid
25-22 in full at a time determined by the trust manager(s) or in
25-23 installments and at times determined by the trust manager(s). Any
25-24 call made by the trust manager(s) for payment on subscriptions must
25-25 be uniform for all shares of the same class or all shares of the
25-26 same series, as the case may be. In case of default in the payment
25-27 of any installment or call when the payment is due, the real estate
26-1 investment trust may proceed to collect the amount due in the same
26-2 manner as the real estate investment trust would collect any debt
26-3 due the real estate investment trust. The bylaws may prescribe
26-4 other penalties for failure to pay installments or calls that may
26-5 become due, but a penalty working a forfeiture of a subscription,
26-6 or of the amounts paid on the subscription, may not be declared
26-7 against any subscriber unless the amount due on the subscription
26-8 remains unpaid on the 21st day after the day on which written
26-9 demand is made for payment. If mailed, the written demand is
26-10 considered to be made when deposited in the United States mail in a
26-11 sealed envelope, with prepaid postage, addressed to the subscriber
26-12 at the subscriber's last post-office address known to the real
26-13 estate investment trust. If the demand remains unsatisfied for the
26-14 20-day period, and if the real estate investment trust is solvent,
26-15 the real estate investment trust may declare the subscription to be
26-16 forfeited. The effect of the declaration of forfeiture is to
26-17 terminate all the rights and obligations of the subscriber as a
26-18 subscriber of shares.
26-19 Sec. 7.20. CERTIFICATES REPRESENTING SHARES. (A) A real
26-20 estate investment trust shall deliver certificates representing
26-21 shares to which shareholders are entitled, or the shares of a real
26-22 estate investment trust may be uncertificated shares. Unless
26-23 otherwise provided by the declaration of trust or bylaws, the trust
26-24 manager(s) of a real estate investment trust by resolution may
26-25 provide that some or all of any or all classes and series of its
26-26 shares shall be uncertificated shares; provided, that the
26-27 resolution may not apply to shares represented by a certificate
27-1 until the certificate is surrendered to the real estate investment
27-2 trust. Certificates representing shares shall be signed by the
27-3 officer or officers prescribed by the bylaws of the real estate
27-4 investment trust to sign the shares, and may be sealed with the
27-5 seal of the real estate investment trust, if any, or a facsimile of
27-6 the seal. The signatures of the officer or officers on a
27-7 certificate may be facsimiles. If an officer who has signed or
27-8 whose facsimile signature has been placed on the certificate ceases
27-9 to serve as officer before the certificate is issued, the real
27-10 estate investment trust may issue the certificate, and the
27-11 certificate has the same effect as if that officer were serving as
27-12 officer on the date of the certificate's issuance.
27-13 (B) If a real estate investment trust is authorized to issue
27-14 shares of more than one class or series, each certificate
27-15 representing shares issued by the real estate investment trust
27-16 shall conspicuously:
27-17 (1) set forth on the face or back of the certificate a
27-18 full statement of all the designations, preferences, limitations,
27-19 and relative rights of the shares of each class or series to the
27-20 extent they have been fixed and determined and the authority of the
27-21 trust manager(s) to fix and determine the designations,
27-22 preferences, limitations, and relative rights of subsequent series;
27-23 or
27-24 (2) state on the face or back of the certificate that:
27-25 (a) a statement that contains the information
27-26 required in Subdivision (1) of this Subsection is set forth in the
27-27 declaration of trust on file with the county clerk of the county of
28-1 the principal place of business of the real estate investment
28-2 trust; and
28-3 (b) the real estate investment trust, on written
28-4 request to the real estate investment trust at its principal place
28-5 of business or registered office, will furnish a copy of the
28-6 statement to the record holder of the certificate without charge.
28-7 (C) Each certificate representing shares shall state on the
28-8 face of the certificate:
28-9 (1) That the real estate investment trust is organized
28-10 under the laws of this state.
28-11 (2) The name of the person to whom the certificate was
28-12 issued.
28-13 (3) The number and class of shares and the designation
28-14 of the series, if any, that the certificate represents.
28-15 (4) The par value of each share represented by the
28-16 certificate, or a statement that the shares are without par value.
28-17 (D) In accordance with Chapter 8, Business & Commerce Code,
28-18 a real estate investment trust, after the issuance or transfer of
28-19 uncertificated shares, shall send to the registered owner of
28-20 uncertificated shares a written notice containing the information
28-21 required to be set forth or stated on certificates under this Act.
28-22 Except as otherwise expressly provided by law, the rights and
28-23 obligations of the holders of uncertificated shares and the rights
28-24 and obligations of the holders of certificates representing shares
28-25 of the same class and series must be identical. A share may not be
28-26 issued until the consideration for the shares, fixed as provided by
28-27 law, has been fully paid.
29-1 (E) A requirement of this Act regarding matters to be set
29-2 forth on certificates representing shares of a real estate
29-3 investment trust may not apply to or affect certificates
29-4 outstanding when the requirement first becomes applicable to the
29-5 certificates, but the requirement shall apply to all certificates
29-6 issued after the requirement becomes applicable whether the
29-7 requirement relates to an original issue of shares, a transfer of
29-8 shares, or otherwise.
29-9 (F) If any restriction on the transfer or registration of
29-10 the transfer of shares is imposed or agreed to by the real estate
29-11 investment trust, as permitted by this Act, each certificate
29-12 representing shares restricted in this manner:
29-13 (1) shall conspicuously set forth a full or summary
29-14 statement of the restriction on the face of the certificate;
29-15 (2) shall set forth the statement on the back of the
29-16 certificate and conspicuously refer to the statement on the face of
29-17 the certificate; or
29-18 (3) shall conspicuously state on the face or back of
29-19 the certificate that such a restriction exists pursuant to a
29-20 specified document and:
29-21 (a) that the real estate investment trust, on
29-22 written request to the real estate investment trust at its
29-23 principal place of business, shall furnish to the record holder of
29-24 the certificate a copy of the specific document without charge; or
29-25 (b) if the document is one required or permitted
29-26 to be and has been filed under this Act, that the specified
29-27 document is on file with the county clerk of the county of the
30-1 principal place of business of the real estate investment trust and
30-2 contains a full statement of the restriction.
30-3 (G) Unless the document described by Subdivision (3) of
30-4 Subsection (F) of this Section was on file with the county clerk of
30-5 the county of the principal place of business of the real estate
30-6 investment trust at the time of the request, a real estate
30-7 investment trust that fails within a reasonable time to furnish
30-8 without charge to a record holder of a certificate who requested a
30-9 copy of the specified document may not be permitted to enforce its
30-10 rights under the restriction imposed on the shares represented by
30-11 the certificate.
30-12 (H) If a real estate investment trust has by its declaration
30-13 of trust provided for a preemptive right of shareholders to acquire
30-14 unissued securities of the real estate investment trust, each
30-15 certificate representing shares issued by the real estate
30-16 investment trust shall conspicuously set forth on the face or back
30-17 of the certificate a full statement of the existence of preemptive
30-18 rights.
30-19 Sec. 7.30 <7>. Consideration and Payment for Shares.
30-20 (A) Shares may be issued for such consideration <expressed in
30-21 dollars> as shall be fixed from time to time by the trust
30-22 manager(s). If the shares have a par value, the consideration for
30-23 the shares may not be less than the par value.
30-24 (B) The consideration paid for the issuance of shares shall
30-25 consist of any tangible or intangible benefit to the real estate
30-26 investment trust, including cash, promissory notes, services
30-27 performed for, contracts for services to be performed for, or other
31-1 securities of the real estate investment trust <money paid or
31-2 property actually received>. Shares may not be issued until the
31-3 full amount of the consideration has been paid. When such
31-4 consideration shall have been paid to the real estate investment
31-5 trust or to another entity of which all of the outstanding shares
31-6 of each class of capital stock are owned, directly or indirectly,
31-7 by the real estate investment trust, the shares shall be deemed to
31-8 have been issued, and the shareholder entitled to receive such
31-9 issue, shall be a shareholder with respect to such shares, and the
31-10 shares shall be considered fully paid and non-assessable.
31-11 (C) <Neither promissory notes nor the promise of future
31-12 services, nor past services shall constitute payment or part
31-13 payment for shares of a real estate investment trust.>
31-14 <(D)> In the absence of fraud in the transaction, the
31-15 judgment of the trust manager(s) or the shareholders, as the case
31-16 may be, as to the value of the consideration received for shares
31-17 shall be conclusive.
31-18 Sec. 7.40. TRANSFER OF SHARES AND OTHER SECURITIES AND
31-19 RESTRICTIONS ON TRANSFER. (A) Except as otherwise provided in
31-20 this Act, the shares and other securities of a real estate
31-21 investment trust are personal property for all purposes and are
31-22 transferable in accordance with Chapter 8, Business & Commerce
31-23 Code.
31-24 (B) A restriction on the transfer or registration of
31-25 transfer of a security may be imposed by the declaration of trust
31-26 or bylaws, or by a written agreement among any number of the
31-27 holders of the securities or a written agreement among any number
32-1 of the holders and the real estate investment trust, provided the
32-2 real estate investment trust places on file a counterpart of the
32-3 agreement at its principal place of business or its registered
32-4 office. The counterpart of the agreement shall be subject to the
32-5 same right of examination by a shareholder of the real estate
32-6 investment trust, in person or by agent, attorney, or accountant,
32-7 as are the books and records of the real estate investment trust.
32-8 A restriction on the transfer or registration of transfer of a
32-9 security imposed as described by this Subsection is not valid with
32-10 respect to any security issued before the adoption of the
32-11 restriction unless the holder of the security voted in favor of the
32-12 restriction or is a party to the agreement imposing the
32-13 restriction.
32-14 (C) Any restriction on the transfer or registration of
32-15 transfer of a security of a real estate investment trust shall be
32-16 specifically enforceable against the holder of the restricted
32-17 security or any successor or transferee of the holder if the
32-18 restriction is:
32-19 (1) reasonable and noted conspicuously on the
32-20 certificate or other instrument representing the security; or
32-21 (2) in the case of an uncertificated security,
32-22 reasonable and notation of the restriction is contained in the
32-23 notice sent pursuant to Subsection (D) of Section 7.20 of this Act
32-24 with respect to the security.
32-25 (D) A restriction, even though otherwise enforceable, is
32-26 ineffective against a transferee for value without actual knowledge
32-27 of the restriction at the time of the transfer or against any
33-1 subsequent transferee (whether or not for value), unless the
33-2 restriction is noted conspicuously on the certificate or other
33-3 instrument representing the security or, in the case of an
33-4 uncertificated security, notation of the restriction is contained
33-5 in the notice sent pursuant to Subsection (D) of Section 7.20 of
33-6 this Act with respect to the security. The restriction shall be
33-7 specifically enforceable against any other person who is not a
33-8 transferee for value from and after the time that the person
33-9 acquires actual knowledge of the existence of the restriction.
33-10 (E) In particular and without limiting the general power
33-11 granted in Subsections (B), (C), and (D) of this Section to impose
33-12 reasonable restrictions, a restriction on the transfer or
33-13 registration of transfer of securities of a real estate investment
33-14 trust is valid if it reasonably:
33-15 (1) obligates the holders of the restricted securities
33-16 to offer to the real estate investment trust or to any other
33-17 holders of securities of the real estate investment trust or to any
33-18 other person, or to any combination of those persons, a prior
33-19 opportunity, to be exercised within a reasonable time, to acquire
33-20 the restricted securities;
33-21 (2) obligates the real estate investment trust, to the
33-22 extent permitted by this Act, or any holder of securities of the
33-23 real estate investment trust or any other person, or any
33-24 combination of those persons, to purchase the securities that are
33-25 the subject of an agreement regarding the purchase and sale of the
33-26 restricted securities;
33-27 (3) requires the real estate investment trust or the
34-1 holders of any class of securities of the real estate investment
34-2 trust to consent to any proposed transfer of the restricted
34-3 securities or to approve the proposed transferee of the restricted
34-4 securities for the purpose of preventing violations of federal or
34-5 state laws;
34-6 (4) prohibits the transfer of the restricted
34-7 securities to designated persons or classes of persons, and the
34-8 designation is not manifestly unreasonable; or
34-9 (5) maintains any tax advantage to the real estate
34-10 investment trust, including maintaining its status as a real estate
34-11 investment trust under the applicable provisions of the Internal
34-12 Revenue Code of 1986 or the regulations adopted under that law.
34-13 (F) A real estate investment trust that has adopted a bylaw,
34-14 or is a party to an agreement restricting the transfer of its
34-15 shares or other securities, may file the bylaw or agreement as a
34-16 matter of public record with the county clerk of the county of the
34-17 principal place of business of the real estate investment trust, as
34-18 follows:
34-19 (1) The real estate investment trust shall file a copy
34-20 of the bylaw or agreement with the county clerk and a statement
34-21 attached to the copy setting forth:
34-22 (a) the name of the real estate investment
34-23 trust;
34-24 (b) that the copy of the bylaw or agreement is a
34-25 true and correct copy of the bylaw or agreement; and
34-26 (c) that the filing has been duly authorized by
34-27 the trust manager(s) or the shareholders, as the case may be.
35-1 (2) The statement shall be executed by an officer on
35-2 behalf of the real estate investment trust.
35-3 (3) After the filing of the statement with the county
35-4 clerk, the bylaw or agreement restricting the transfer of shares or
35-5 other securities becomes a matter of public record and the fact of
35-6 the filing of the bylaw or agreement shall be stated on any
35-7 certificate representing the shares or other securities restricted
35-8 by the bylaw or agreement if required by Subsection (F) of Section
35-9 7.20 of this Act.
35-10 (G) By complying with the provisions of this Act or amending
35-11 the declaration of trust, a real estate investment trust that is a
35-12 party to an agreement restricting the transfer of its shares or
35-13 other securities may make that agreement part of its declaration of
35-14 trust without restating the provisions of the agreement in the
35-15 declaration of trust. If the agreement alters any provision of the
35-16 original or amended declaration of trust, the articles of amendment
35-17 must identify the altered provision by reference or description.
35-18 If the agreement is to be an addition to the original or amended
35-19 declaration of trust, the articles of amendment shall state that
35-20 fact. A copy of the agreement restricting the transfer of shares
35-21 or other securities must be attached to the articles of amendment.
35-22 The articles of amendment shall state that the attached copy of the
35-23 agreement is a true and correct copy of the agreement and that its
35-24 inclusion as part of the declaration of trust has been duly
35-25 authorized in the manner required by this Act to amend the
35-26 declaration of trust.
35-27 (H) When shares are registered on the books of a real estate
36-1 investment trust in the names of two or more persons as joint
36-2 owners with the right of survivorship, after the death of a joint
36-3 owner and before the time that the real estate investment trust
36-4 receives actual written notice that parties other than the
36-5 surviving joint owner or owners claim an interest in the shares of
36-6 or any distributions from the real estate investment trust, the
36-7 real estate investment trust may record on its books and otherwise
36-8 effect the transfer of those shares to any person, firm, or entity
36-9 (including that surviving joint owner individually) and may pay any
36-10 distributions made in respect of those shares, in each case as if
36-11 the surviving joint owner or owners were the absolute owners of the
36-12 shares. A real estate investment trust permitting such a transfer
36-13 by and making any distribution to a surviving joint owner or owners
36-14 before the receipt of written notice from other parties claiming an
36-15 interest in those shares or distributions is discharged from all
36-16 liability for the transfer or payment so made; provided, however,
36-17 that the discharge of the real estate investment trust from
36-18 liability and the transfer of full legal and equitable title of the
36-19 shares does not affect, reduce, or limit any cause of action
36-20 existing in favor of any owner of an interest in those shares or
36-21 distributions against the surviving owner or owners.
36-22 Sec. 8.10 <8>. LIABILITY OF SUBSCRIBERS AND SHAREHOLDERS.
36-23 (A) A holder of shares, an owner of any beneficial interest in
36-24 shares, or a subscriber for shares whose subscription has been
36-25 accepted is not under an obligation to the real estate investment
36-26 trust or to its obligees with respect to:
36-27 (1) the shares other than the obligation to pay to the
37-1 real estate investment trust the full amount of the consideration,
37-2 fixed in compliance with Section 7.30 of this Act, for which the
37-3 shares were or are to be issued;
37-4 (2) any contractual obligation of the real estate
37-5 investment trust on the basis that the holder, owner, or subscriber
37-6 is or was the alter ego of the real estate investment trust, or on
37-7 the basis of actual fraud or constructive fraud, a sham to
37-8 perpetrate a fraud, or other similar theory, unless the obligee
37-9 demonstrates that the holder, owner, or subscriber caused the real
37-10 estate investment trust to be used for the purpose of perpetrating
37-11 and did perpetrate an actual fraud on the obligee primarily for the
37-12 direct personal benefit of the holder, owner, or subscriber; or
37-13 (3) any obligation of the real estate investment trust
37-14 on the basis of the failure of the real estate investment trust to
37-15 observe any formality, including the failure to:
37-16 (a) comply with any requirement of this Act or
37-17 of the declaration of trust or bylaws of the real estate investment
37-18 trust; or
37-19 (b) observe any requirement prescribed by this
37-20 Act or by the declaration of trust or bylaws for acts taken by the
37-21 real estate investment trust, its trust manager(s), or its
37-22 shareholders.
37-23 (B) The liability of a holder, owner, or subscriber of
37-24 shares of a real estate investment trust for an obligation that is
37-25 limited by Subsection (A) of this Section is exclusive and preempts
37-26 any other liability imposed on a holder, owner, or subscriber of
37-27 shares of a real estate investment trust for that obligation under
38-1 common law or otherwise, except that this Section does not limit
38-2 the obligation of a holder, owner, or subscriber to an obligee of
38-3 the real estate investment trust when:
38-4 (1) the holder, owner, or subscriber has expressly
38-5 assumed, guaranteed, or agreed to be personally liable to the
38-6 obligee for the obligation; or
38-7 (2) the holder, owner, or subscriber is otherwise
38-8 liable to the obligee for the obligation under this Act or another
38-9 applicable statute <A holder of a certificate of shares shall not
38-10 be personally or individually liable in any manner whatsoever for
38-11 any debt, act, omission or obligation incurred by the trust or the
38-12 trust manager(s) and shall be under no obligation to the trust or
38-13 to its creditors with respect to such shares other than the
38-14 obligation to pay to the trust the full amount of the consideration
38-15 for which such shares were issued or to be issued>.
38-16 (C) <(B)> Any person becoming an assignee or transferee of
38-17 certificated shares or of uncertificated shares or of a
38-18 subscription for <a certificate of> shares in good faith and
38-19 without knowledge or notice that the full consideration therefor
38-20 has not been paid to the real estate investment trust shall not be
38-21 personally liable to the real estate investment trust or its
38-22 creditors for any unpaid portion of such consideration.
38-23 (D) <(C)> An executor, administrator, conservator, guardian,
38-24 trustee, assignee for the benefit of creditors, or receiver, shall
38-25 not be liable personally as a holder of shares of a real estate
38-26 investment trust, but the estate and funds in his hands shall be
38-27 liable to pay to the real estate investment trust the full amount
39-1 of the consideration for which such shares were issued or to be
39-2 issued.
39-3 (E) <(D)> No pledgee or other holder of shares as collateral
39-4 security shall be personally liable as a shareholder.
39-5 <(E) No real estate investment trust may impose restrictions
39-6 on the sale or other disposition of its shares and on the transfer
39-7 thereof.>
39-8 Sec. 9.10 <9>. BYLAWS <By-laws>. (A) The initial bylaws
39-9 <by-laws> of the real estate investment trust shall be adopted by
39-10 the trust manager(s) <or the shareholders>. The bylaws <by-laws>
39-11 may contain any provisions for the regulation and management of the
39-12 affairs of the real estate investment trust not inconsistent with
39-13 law or the declaration of trust.
39-14 (B) The trust manager(s) of a real estate investment trust
39-15 may amend or repeal the real estate investment trust's bylaws
39-16 <by-laws>, or adopt new bylaws <by-laws>, unless:
39-17 (1) the declaration of trust or this Act reserves the
39-18 power exclusively to the shareholders in whole or part; or
39-19 (2) the shareholders in amending, repealing, or
39-20 adopting a particular bylaw provision <by-law> expressly provide
39-21 that the trust manager(s) may not amend or repeal that bylaw
39-22 <by-law>.
39-23 (C) Unless the declaration of trust or a bylaw <by-law>
39-24 adopted by the shareholders provides otherwise as to all or some
39-25 portion of a real estate investment trust's bylaws <by-laws>, a
39-26 real estate investment trust's shareholders may amend, repeal, or
39-27 adopt the real estate investment trust's bylaws <by-laws> even
40-1 though the bylaws <by-laws> may also be amended, repealed, or
40-2 adopted by its trust manager(s).
40-3 Sec. 9.20 <9.1>. Indemnification. (A) In this Section:
40-4 (1) "Trust Manager" means any person who is or was a
40-5 trust manager of the real estate investment trust and any person
40-6 who, while a trust manager of the real estate investment trust, is
40-7 or was serving, at the request of the real estate investment trust
40-8 as a trust manager, director, officer, partner, venturer,
40-9 proprietor, trustee, employee, agent, or similar functionary of
40-10 another real estate investment trust, foreign or domestic
40-11 corporation, partnership, joint venture, sole proprietorship,
40-12 trust, employee benefit plan, or other enterprise.
40-13 (2) "Expenses" include court costs and attorney's
40-14 fees.
40-15 (3) "Official capacity":
40-16 (a) when used with respect to a trust manager,
40-17 means the office of trust manager in the real estate investment
40-18 trust; and
40-19 (b) when used with respect to a person other
40-20 than a trust manager, means the elective or appointive office in
40-21 the real estate investment trust held by the officer or the
40-22 employment or agency relationship undertaken by the employee or
40-23 agent in behalf of the real estate investment trust; but
40-24 (c) in both paragraphs (a) and (b) does not
40-25 include service for any other real estate investment trust or
40-26 foreign or domestic corporation or any partnership, joint venture,
40-27 sole proprietorship, trust, employee benefit plan, or other
41-1 enterprise.
41-2 (4) "Proceeding" means any threatened, pending, or
41-3 completed action, suit, or proceeding, whether civil, criminal,
41-4 administrative, arbitrative, or investigative, any appeal in such
41-5 an action, suit, or proceeding, and any inquiry or investigation
41-6 that could lead to such an action, suit, or proceeding.
41-7 (5) "Real estate investment trust" includes any
41-8 domestic or foreign predecessor of the real estate investment trust
41-9 in a merger, consolidation, or other transaction in which the
41-10 liabilities of the predecessor are transferred to the real estate
41-11 investment trust by operation of law and in any other transaction
41-12 in which the real estate investment trust assumes the liabilities
41-13 of the predecessor but does not specifically exclude liabilities
41-14 that are the subject matter of this Section.
41-15 (B) A real estate investment trust may indemnify a person
41-16 who was, is, or is threatened to be made a named defendant or
41-17 respondent in a proceeding because the person is or was a trust
41-18 manager only if it is determined in accordance with Subsection (F)
41-19 of this Section that the person:
41-20 (1) conducted himself in good faith;
41-21 (2) reasonably believed:
41-22 (a) in the case of conduct in his official
41-23 capacity as a trust manager of the real estate investment trust,
41-24 that his conduct was in the real estate investment trust's best
41-25 interests; and
41-26 (b) in all other cases that his conduct was at
41-27 least not opposed to the real estate investment trust's best
42-1 interests; and
42-2 (3) in the case of any criminal proceeding, had no
42-3 reasonable cause to believe that his conduct was unlawful.
42-4 (C) Except to the extent permitted by Subsection (E) of this
42-5 Section, a trust manager may not be indemnified under Subsection
42-6 (B) of this Section in respect of a proceeding:
42-7 (1) in which the person is found liable on the basis
42-8 that personal benefit was improperly received by him, whether or
42-9 not the benefit resulted from an action taken in the person's
42-10 official capacity; or
42-11 (2) in which the person is found liable to the real
42-12 estate investment trust.
42-13 (D) The termination of a proceeding by judgment, order,
42-14 settlement, or conviction, or on a plea of nolo contendere or its
42-15 equivalent is not of itself determinative that the person did not
42-16 meet the requirements set forth in Subsection (B) of this Section.
42-17 A person shall be deemed to have been found liable in respect of
42-18 any claim, issue, or matter only after the person shall have been
42-19 so adjudged by a court of competent jurisdiction after exhaustion
42-20 of all appeals therefrom.
42-21 (E) A person may be indemnified under Subsection (B) of this
42-22 Section against judgments, penalties (including excise and similar
42-23 taxes), fines, settlements, and reasonable expenses actually
42-24 incurred by the person in connection with the proceeding; but if
42-25 the person is found liable to the real estate investment trust or
42-26 is found liable on the basis that personal benefit was improperly
42-27 received by the person, the indemnification (1) is limited to
43-1 reasonable expenses actually incurred by the person in connection
43-2 with the proceeding, and (2) shall not be made in respect of any
43-3 proceeding in which the person shall have been found liable for
43-4 wilful or intentional misconduct in the performance of his duty to
43-5 the real estate investment trust.
43-6 (F) A determination to furnish indemnification under
43-7 Subsection (B) of this Section shall be made only:
43-8 (1) by a majority vote of a quorum consisting of trust
43-9 managers who at the time of the vote are not named defendants or
43-10 respondents in the proceeding;
43-11 (2) if such a quorum cannot be obtained, by a majority
43-12 vote of a committee of the trust managers, designated to act in the
43-13 matter by a majority vote of all trust managers, consisting solely
43-14 of two or more trust managers who at the time of the vote are not
43-15 named defendants or respondents in the proceeding;
43-16 (3) by special legal counsel selected by the trust
43-17 managers or a committee thereof by vote as set forth in Subdivision
43-18 (1) or (2) of this Subsection, or, if such a quorum cannot be
43-19 obtained and such a committee cannot be established, by a majority
43-20 vote of all trust managers; or
43-21 (4) by the shareholders in a vote that excludes the
43-22 shares of beneficial interest held by trust managers who are named
43-23 defendants or respondents in the proceeding.
43-24 (G) Authorization of indemnification and determination as to
43-25 reasonableness of expenses must be made in the same manner as the
43-26 determination that indemnification is permissible, except that if
43-27 the determination that indemnification is permissible is made by
44-1 special legal counsel, authorization of indemnification and
44-2 determination as to reasonableness of expenses must be made in the
44-3 manner specified by Subdivision (3) of Subsection (F) of this
44-4 Section for the selection of special legal counsel. A provision
44-5 contained in the declaration of trust, the bylaws <by-laws>, or an
44-6 agreement that makes mandatory the indemnification permitted under
44-7 Subsection (B) of this Section shall be deemed to constitute
44-8 authorization of indemnification in the manner required by this
44-9 Subsection <paragraph> even though such provision may not have been
44-10 adopted or authorized in the same manner as the determination that
44-11 indemnification is permissible.
44-12 (H) A real estate investment trust shall indemnify a trust
44-13 manager against reasonable expenses incurred by him in connection
44-14 with a proceeding in which he is a named defendant or respondent
44-15 because he is or was a trust manager if he has been wholly
44-16 successful, on the merits or otherwise, in the defense of the
44-17 proceeding.
44-18 (I) If, in a suit for the indemnification required by
44-19 Subsection (H) of this Section, a court of competent jurisdiction
44-20 determines that the trust manager is entitled to indemnification
44-21 under that Subsection, the court shall order indemnification and
44-22 shall award to the trust manager the expenses incurred in securing
44-23 the indemnification.
44-24 (J) If, upon application of a trust manager, a court of
44-25 competent jurisdiction determines, after giving any notice the
44-26 court considers necessary, that the trust manager is fairly and
44-27 reasonably entitled to indemnification in view of all the relevant
45-1 circumstances, whether or not he has met the requirements set forth
45-2 in Subsection (B) of this Section or has been found liable in the
45-3 circumstances described by Subsection (C) of this Section, the
45-4 court may order the indemnification that the court determines is
45-5 proper and equitable; but if the trust manager is found liable to
45-6 the real estate investment trust or is found liable on the basis
45-7 that personal benefit was improperly received by the trust manager,
45-8 the indemnification shall be limited to reasonable expenses
45-9 actually incurred by the trust manager in connection with the
45-10 proceeding.
45-11 (K) Reasonable expenses incurred by a trust manager who was,
45-12 is, or is threatened to be made a named defendant or respondent in
45-13 a proceeding may be paid or reimbursed by the real estate
45-14 investment trust, in advance of the final disposition of the
45-15 proceeding and without the determination specified in Subsection
45-16 (F) of this Section or the authorization or determination specified
45-17 in Subsection (G) of this Section, after the real estate investment
45-18 trust receives a written affirmation by the trust manager of his
45-19 good faith belief that he has met the standard of conduct necessary
45-20 for indemnification under this Section and a written undertaking by
45-21 or on behalf of the trust manager to repay the amount paid or
45-22 reimbursed if it is ultimately determined that he has not met that
45-23 standard or if it is ultimately determined that indemnification of
45-24 the trust manager against expenses incurred by him in connection
45-25 with that proceeding is prohibited by Subsection (E) of this
45-26 Section. A provision contained in the declaration of trust, the
45-27 bylaws, a resolution of shareholders or trust managers <by-laws>,
46-1 or an agreement that makes mandatory the payment or reimbursement
46-2 permitted under this Subsection shall be deemed to constitute
46-3 authorization of that payment or reimbursement.
46-4 (L) The written undertaking required by Subsection (K) of
46-5 this Section must be an unlimited general obligation of the trust
46-6 manager but need not be secured. It may be accepted without
46-7 reference to financial ability to make repayment.
46-8 (M) A provision for a real estate investment trust to
46-9 indemnify or to advance expenses to a trust manager who was, is, or
46-10 is threatened to be made a named defendant or respondent in a
46-11 proceeding, whether contained in the declaration of trust, the
46-12 bylaws, a resolution of shareholders or trust managers <by-laws>,
46-13 an agreement, or otherwise, except in accordance with Subsection
46-14 (R) of this Section, is valid only to the extent it is consistent
46-15 with this Section as limited by the declaration of trust, if such a
46-16 limitation exists.
46-17 (N) Notwithstanding any other provision of this Section, a
46-18 real estate investment trust may pay or reimburse expenses incurred
46-19 by a trust manager in connection with his appearance as a witness
46-20 or other participation in a proceeding at a time when he is not a
46-21 named defendant or respondent in the proceeding.
46-22 (O) An officer of the real estate investment trust shall be
46-23 indemnified as, and to the same extent, provided by Subsections
46-24 (H), (I), and (J) of this Section for a trust manager and is
46-25 entitled to seek indemnification under those Subsections <Sections>
46-26 to the same extent as a trust manager. A real estate investment
46-27 trust may indemnify and advance expenses to an officer, employee,
47-1 or agent of the real estate investment trust to the same extent
47-2 that it may indemnify and advance expenses to trust managers under
47-3 this Section.
47-4 (P) A real estate investment trust may indemnify and advance
47-5 expenses to persons who are not or were not officers, employees, or
47-6 agents of the real estate investment trust but who are or were
47-7 serving at the request of the real estate investment trust as a
47-8 trust manager, director, officer, partner, venturer, proprietor,
47-9 trustee, employee, agent, or similar functionary of another real
47-10 estate investment trust or of a foreign or domestic corporation,
47-11 partnership, joint venture, sole proprietorship, trust, employee
47-12 benefit plan, or other enterprise to the same extent that it may
47-13 indemnify and advance expenses to trust managers under this
47-14 Section.
47-15 (Q) A real estate investment trust may indemnify and advance
47-16 expenses to an officer, employee, agent, or person identified in
47-17 Subsection (P) of this Section and who is not a trust manager to
47-18 such further extent, consistent with law, as may be provided by its
47-19 declaration of trust, bylaws <by-laws>, general or specific action
47-20 of its trust managers, or contract or as permitted or required by
47-21 common law.
47-22 (R) A real estate investment trust may purchase and maintain
47-23 insurance or another arrangement on behalf of any person who is or
47-24 was a trust manager officer, employee, or agent of the real estate
47-25 investment trust or who is or was serving at the request of the
47-26 real estate investment trust as a trust manager or a director,
47-27 officer, partner, venturer, proprietor, trustee, employee, agent,
48-1 or similar functionary of another real estate investment trust or
48-2 of a foreign or domestic corporation, partnership, joint venture,
48-3 sole proprietorship, trust, employee benefit plan, or other
48-4 enterprise, against any liability asserted against him and incurred
48-5 by him in such a capacity or arising out of his status as such a
48-6 person, whether or not the real estate investment trust would have
48-7 the power to indemnify him against that liability under this
48-8 Section. If the insurance or other arrangement is with a person or
48-9 entity that is not regularly engaged in the business of providing
48-10 insurance coverage, the insurance or arrangement may provide for
48-11 payment of a liability with respect to which the real estate
48-12 investment trust would not have the power to indemnify the person
48-13 only if including coverage for the additional liability has been
48-14 approved by the shareholders of the real estate investment trust.
48-15 Without limiting the power of the real estate investment trust to
48-16 procure or maintain any kind of insurance or other arrangement, a
48-17 real estate investment trust may, for the benefit of persons
48-18 indemnified by the real estate investment trust, (1) create a trust
48-19 fund; (2) establish any form of self-insurance; (3) secure its
48-20 indemnity obligation by grant of a security interest or other lien
48-21 on the assets of the real estate investment trust; or (4) establish
48-22 a letter of credit, guaranty, or surety arrangement. The insurance
48-23 or other arrangement may be procured, maintained, or established
48-24 within the real estate investment trust or with any insurer or
48-25 other person deemed appropriate by the trust manager(s) regardless
48-26 of whether all or part of the stock or other securities of the
48-27 insurer or other person are owned in whole or part by the real
49-1 estate investment trust. In the absence of fraud, the judgment of
49-2 the trust manager(s) as to the terms and conditions of the
49-3 insurance or other arrangement and the identity of the insurer or
49-4 other person participating in an arrangement shall be conclusive
49-5 and the insurance or arrangement shall not be voidable and shall
49-6 not subject the trust manager(s) approving the insurance or
49-7 arrangement to liability, on any ground, regardless of whether a
49-8 trust manager participating in the approval is a beneficiary of the
49-9 insurance or arrangement.
49-10 (S) Any indemnification of or advance of expenses to any
49-11 person who is or was a trust manager, officer, employee, or agent
49-12 of the real estate investment trust or who is or was serving at the
49-13 request of the real estate investment trust as a trust manager or a
49-14 director, officer, partner, venturer, proprietor, trustee,
49-15 employee, agent, or similar functionary of another real estate
49-16 investment trust or of a foreign or domestic corporation,
49-17 partnership, joint venture, sole proprietorship, trust, employee
49-18 benefit plan, or other enterprise in accordance with this Section
49-19 shall be reported in writing to the shareholders with or before the
49-20 notice or waiver of notice of the next shareholders meeting or with
49-21 or before the next submission to shareholders of a consent to
49-22 action without a meeting pursuant to Section 10.30 <10.2> of this
49-23 Act and, in any case, within the 12-month period immediately
49-24 following the date of the indemnification or advance.
49-25 (T) For purposes of this Section, the real estate investment
49-26 trust is deemed to have requested a trust manager to serve an
49-27 employee benefit plan whenever the performance by him of his duties
50-1 to the real estate investment trust also imposes duties on or
50-2 otherwise involves services by him to the plan or participants or
50-3 beneficiaries of the plan. Excise taxes assessed on a trust
50-4 manager with respect to an employee benefit plan pursuant to
50-5 applicable law are deemed fines. Action taken or omitted by him
50-6 with respect to an employee benefit plan in the performance of his
50-7 duties for a purpose reasonably believed by him to be in the
50-8 interest of the participants and beneficiaries of the plan is
50-9 deemed to be for a purpose which is not opposed to the best
50-10 interests of the real estate investment trust.
50-11 (U) The declaration of trust of a real estate investment
50-12 trust may restrict the circumstances under which the real estate
50-13 investment trust is required or permitted to indemnify a person
50-14 under Subsection (H), (I), (J), (O), (P), or (Q) of this Section.
50-15 Sec. 10.10 <10>. Meetings of Shareholders. (A) Meetings of
50-16 shareholders shall be held at such place, either within or without
50-17 the state, as may be provided in the bylaws <by-laws>. In the
50-18 absence of any such provision, all meetings shall be held at the
50-19 principal office of the real estate investment trust.
50-20 (B) An annual meeting of the shareholders shall be held at
50-21 such time as may be provided in the bylaws <by-laws>. In the event
50-22 the trust manager(s) fail to call the annual meeting at the
50-23 designated time, any shareholder may make demand that such meeting
50-24 be held within a reasonable time, such demand to be made in writing
50-25 by registered mail directly to any officer or trust manager of the
50-26 real estate investment trust. If the annual meeting of the
50-27 shareholders is not called within sixty (60) days following such
51-1 demand, any shareholder may compel the holding of such annual
51-2 meeting by legal action directed against said trust manager(s), and
51-3 all of the extraordinary writs of the common law and of a court of
51-4 equity shall be available to such shareholder to compel the holding
51-5 of such annual meeting. Each and every shareholder is hereby
51-6 declared to have a justiciable interest sufficient to enable him to
51-7 institute and prosecute such legal proceedings. Failure to hold
51-8 the annual meeting at the designated time may not cause the
51-9 dissolution of the real estate investment trust.
51-10 (C) Special meetings of the shareholders may be called by
51-11 the trust manager(s), any officer of the real estate investment
51-12 trust, <the holders of not less than one-tenth (1/10) of all the
51-13 shares entitled to vote at the meetings,> or such other persons as
51-14 may be provided in the declaration of trust or the bylaws. Special
51-15 meetings of the shareholders may also be called by the holders of
51-16 at least 10 percent of all the shares entitled to vote at the
51-17 proposed special meeting, unless the declaration of trust provides
51-18 for a number of shares greater than or less than 10 percent, in
51-19 which event special meetings of the shareholders may be called by
51-20 the holders of at least the percentage of shares so specified in
51-21 the declaration of trust. The declaration of trust may not provide
51-22 for a number of shares greater than 50 percent <by-laws>.
51-23 Sec. 10.20 <10.1>. Trust manager meetings and notice of
51-24 meetings. (A) Meetings of the trust manager(s), whether regular
51-25 or special, may be held either within or without this State.
51-26 (B) Regular meetings of the trust manager(s) may be held
51-27 with or without notice as prescribed in the bylaws <by-laws>.
52-1 Special meetings of the trust manager(s) shall be held upon such
52-2 notice as is prescribed in the bylaws <by-laws>. Attendance of a
52-3 trust manager at a meeting shall constitute a waiver of notice of
52-4 such meeting, except where a trust manager attends a meeting for
52-5 the express purpose of objecting to the transaction of any business
52-6 on the ground that the meeting is not lawfully called or convened.
52-7 Neither the business to be transacted at, nor the purpose of, any
52-8 regular or special meeting of the trust manager(s) need be
52-9 specified in the notice or waiver of notice of such meeting, unless
52-10 required by the bylaws <by-laws>.
52-11 Sec. 10.30 <10.2>. Actions without a meeting;<:> telephone
52-12 meetings. (A) Unless otherwise provided by the declaration of
52-13 trust or bylaws, any <Any> action required or permitted <by this
52-14 Act> to be taken at a meeting of the shareholders of a real estate
52-15 investment trust<, or any action which may be taken at a meeting of
52-16 the shareholders,> may be taken without a meeting if a consent in
52-17 writing, setting forth the action so taken, shall be signed by all
52-18 of the shareholders entitled to vote with respect to the subject
52-19 matter thereof. Such action<, and such consent> shall then have
52-20 the same force and effect as action taken at a meeting <a unanimous
52-21 vote of shareholders>, and may be stated as such in any declaration
52-22 of trust or document filed with the county clerk of the county of
52-23 the principal place of business of the real estate investment trust
52-24 or with the secretary of state.
52-25 (B) Unless otherwise provided <restricted> by the
52-26 declaration of trust or bylaws <by-laws>, any action required or
52-27 permitted to be taken at a meeting of the trust manager(s) or any
53-1 committee may be taken without a meeting if a consent in writing,
53-2 setting forth the action so taken, is signed by all the trust
53-3 managers or members of such committee, as the case may be. Such
53-4 action <consent> shall then have the same force and effect as
53-5 action taken <a unanimous vote> at a meeting, and may be stated as
53-6 such in any document or instrument filed with the county clerk of
53-7 the county of the principal place of business of the trust or with
53-8 the secretary of state.
53-9 (C) Subject to the provisions required or permitted by this
53-10 Act for notice of meetings, unless otherwise restricted by the
53-11 declaration of trust or bylaws <by-laws>, shareholders, trust
53-12 manager(s), or members of any committee designated by such trust
53-13 manager(s), may participate in and hold a meeting of such
53-14 shareholders, trust manager(s) or committee by means of conference
53-15 telephone or similar communications equipment by means of which all
53-16 persons participating in the meeting can hear each other, and
53-17 participation in a meeting pursuant to this Section shall
53-18 constitute presence in person at such meeting, except where a
53-19 person participates in the meeting for the express purpose of
53-20 objecting to the transaction of any business on the ground that the
53-21 meeting is not lawfully called or convened.
53-22 (D) If action is taken with respect to a particular matter
53-23 by the holders of shares of a class or series by means of a written
53-24 consent in compliance with Subsection (A) of this Section, any
53-25 provision of this Act that requires advance notice of a meeting or
53-26 of the proposed action does not apply as to that class or series
53-27 for that action.
54-1 Sec. 11.10 <11>. Notice of shareholders meetings. (A)
54-2 Written or printed notice stating the place, day and hour of the
54-3 meeting and, in case of a special meeting, the purpose or purposes
54-4 for which the meeting is called, shall be delivered not less than
54-5 ten (10) nor more than sixty (60) days before the date of the
54-6 meeting, either personally or by mail, by or at the direction of
54-7 the trust manager(s) or any officer or person calling the meeting,
54-8 to each shareholder of record entitled to vote at such meeting. If
54-9 mailed, such notice shall be deemed to be delivered when deposited
54-10 in the United States Mail addressed to the shareholder at his
54-11 address as it appears on the books of the trust, with postage
54-12 thereon prepaid.
54-13 (B) Any notice otherwise required to be given to any
54-14 shareholder under this Act or the declaration of trust or bylaws of
54-15 any real estate investment trust is not required for the
54-16 shareholder if:
54-17 (1) notice of two consecutive annual meetings and all
54-18 notices of meetings held during the period between those annual
54-19 meetings, if any, have been mailed to the shareholder at the
54-20 address shown on the share transfer records of the real estate
54-21 investment trust and the notice has been returned undeliverable; or
54-22 (2) all (but in no event less than two) payments (if
54-23 sent by first class mail) of distributions or interest on
54-24 securities during a 12-month period have been mailed to the
54-25 shareholder at the address shown on the share transfer records of
54-26 the real estate investment trust, and the payments have been
54-27 returned undeliverable.
55-1 (C) Any action or meeting taken or held without notice to a
55-2 shareholder described by Subsection (B) of this Section has the
55-3 same force and effect as if the notice had been duly given to the
55-4 shareholder. If the action taken by the real estate investment
55-5 trust is reflected in any document filed with the Secretary of
55-6 State, that document may state that notice was duly given to all
55-7 persons to whom notice was required to be given. If a shareholder
55-8 described by Subsection (B) of this Section delivers to the real
55-9 estate investment trust a written notice setting forth the
55-10 shareholder's current address, the requirement that notice be given
55-11 to the shareholder shall be reinstated.
55-12 Sec. 11.20. REGISTERED HOLDERS OF SHARES, CLOSING OF SHARE
55-13 TRANSFER RECORDS, AND RECORD DATE. (A) Unless otherwise provided
55-14 in this Act, and subject to the provisions of Chapter 8, Business &
55-15 Commerce Code, a real estate investment trust may regard the person
55-16 in whose name any shares issued by the real estate investment trust
55-17 are registered in the share transfer records of the real estate
55-18 investment trust at any particular time (including shares
55-19 registered as of a record date fixed under Subsection (B) or (C) of
55-20 this Section) as the owner of those shares at that time for
55-21 purposes of:
55-22 (1) voting those shares;
55-23 (2) receiving distributions on or notices in respect
55-24 of those shares;
55-25 (3) transferring those shares;
55-26 (4) exercising rights of dissent with respect to those
55-27 shares;
56-1 (5) exercising or waiving any preemptive right with
56-2 respect to those shares;
56-3 (6) entering into agreements with respect to those
56-4 shares in accordance with Section 7.40 or 13.20 of this Act; or
56-5 (7) giving proxies with respect to those shares.
56-6 (B) Neither the real estate investment trust nor any of the
56-7 officers, trust manager(s), employees, or agents of the real estate
56-8 investment trust are liable for regarding a person described by
56-9 Subsection (A) of this Section as the owner of those shares at that
56-10 time for those purposes, regardless of whether that person does not
56-11 possess a certificate for those shares.
56-12 (C) For the purpose of determining shareholders entitled to
56-13 notice of or to vote at any meeting of shareholders or any
56-14 adjournment of a meeting of shareholders, or shareholders entitled
56-15 to receive a distribution by a real estate investment trust (other
56-16 than a distribution involving a purchase or redemption by the real
56-17 estate investment trust of any of its own shares) or a share
56-18 dividend, or in order to make a determination of shareholders for
56-19 any other proper purpose (other than determining shareholders
56-20 entitled to consent to action by shareholders proposed to be taken
56-21 without a meeting of shareholders), the trust manager(s) of a real
56-22 estate investment trust may provide that the share transfer records
56-23 shall be closed for a stated period not to exceed 60 days. If the
56-24 share transfer records are closed for the purpose of determining
56-25 shareholders entitled to notice of or to vote at a meeting of
56-26 shareholders, the share transfer records shall be closed for at
56-27 least 10 days immediately before the meeting. In lieu of closing
57-1 the share transfer records, the bylaws, or in the absence of an
57-2 applicable bylaw, the trust manager(s), may fix in advance a date
57-3 as the record date for the determination of shareholders. The
57-4 record date for any such determination of shareholders may not be
57-5 more than 60 days and, in the case of a meeting of shareholders,
57-6 not less than 10 days, before the date on which the particular
57-7 action requiring the determination of shareholders is to be taken.
57-8 If the share transfer records are not closed and no record date is
57-9 fixed for the determination of shareholders entitled to notice of
57-10 or to vote at a meeting of shareholders, or shareholders entitled
57-11 to receive a distribution (other than a distribution involving a
57-12 purchase or redemption by the real estate investment trust of any
57-13 of its own shares) or a share dividend, the date on which notice of
57-14 the meeting is mailed or the date on which the resolution of the
57-15 trust manager(s) declaring such distribution or share dividend is
57-16 adopted, as the case may be, shall be the record date for such
57-17 determination of shareholders. When a determination of
57-18 shareholders entitled to vote at any meeting of shareholders has
57-19 been made in the manner provided in this Section, the determination
57-20 of shareholders shall apply to any adjournment of the meeting of
57-21 shareholders except where the determination has been made through
57-22 the closing of the share transfer records and the stated period of
57-23 closing has expired.
57-24 (D) Unless a record date has previously been fixed or
57-25 determined under this Section, when action by shareholders is
57-26 proposed to be taken by written consent without a meeting of
57-27 shareholders, the trust manager(s) may fix a record date for the
58-1 purpose of determining shareholders entitled to consent to that
58-2 action. The record date may not precede, and may not be more than
58-3 10 days after, the date on which the trust managers adopt the
58-4 resolution fixing the record date. If no record date has been
58-5 fixed by the trust manager(s) and the prior action of the trust
58-6 manager(s) is not required by this Act, the record date for
58-7 determining shareholders entitled to consent to action in writing
58-8 without a meeting shall be the first date on which a signed written
58-9 consent setting forth the action taken or proposed to be taken is
58-10 delivered by hand or by certified or registered mail, return
58-11 receipt requested, to the real estate investment trust as provided
58-12 by Subsection (A) of Section 10.30 of this Act. Delivery to the
58-13 real estate investment trust's principal place of business shall be
58-14 addressed to the president or the principal executive officer of
58-15 the real estate investment trust. If no record date shall have
58-16 been fixed by the trust manager(s) and prior action of the trust
58-17 manager(s) is required by this Act, the record date for determining
58-18 shareholders entitled to consent to action in writing without a
58-19 meeting shall be at the close of business on the date on which the
58-20 trust manager(s) adopt a resolution taking such prior action.
58-21 (E) Distributions made by a real estate investment trust,
58-22 including those distributions that were payable but not paid to a
58-23 holder of shares, or to the holder's heirs, successors, or assigns,
58-24 and have been held in suspense by the real estate investment trust
58-25 or were paid or delivered by the real estate investment trust into
58-26 an escrow account or to a trustee or custodian, shall be payable by
58-27 the real estate investment trust, escrow agent, trustee, or
59-1 custodian of the distributions to the holder of the shares as of
59-2 the record date determined for that distribution as provided in
59-3 Subsection (B) of this Section, or to the holder's heirs,
59-4 successors, or assigns.
59-5 Sec. 12.10 <12>. QUORUM OF AND VOTING BY SHAREHOLDERS. (A)
59-6 Unless otherwise provided in the declaration of trust in accordance
59-7 with this Section, with respect to any meeting of shareholders, a
59-8 quorum shall be present for any matter to be presented at that
59-9 meeting if the holders of a majority of the shares entitled to vote
59-10 at the meeting are represented at the meeting in person or by
59-11 proxy. The declaration of trust may provide:
59-12 (1) that a quorum is present at a meeting of
59-13 shareholders only if the holders of a specified greater portion of
59-14 the shares entitled to vote are represented at the meeting in
59-15 person or by proxy; or
59-16 (2) that a quorum is present at a meeting of
59-17 shareholders if the holders of a specified lesser portion, but not
59-18 less than one-third (1/3), of the shares entitled to vote are
59-19 represented at the meeting in person or by proxy.
59-20 (B) Unless otherwise provided in the declaration of trust or
59-21 the bylaws, once a quorum is present at a meeting of shareholders,
59-22 the shareholders represented in person or by proxy at the meeting
59-23 may conduct such business as may be properly brought before the
59-24 meeting until the meeting is adjourned. The subsequent withdrawal
59-25 of any shareholder from the meeting or the refusal of any
59-26 shareholder represented in person or by proxy to vote does not
59-27 affect the presence of a quorum at the meeting. Unless otherwise
60-1 provided in the declaration of trust or the bylaws, the
60-2 shareholders represented in person or by proxy at a meeting of
60-3 shareholders at which a quorum is not present may adjourn the
60-4 meeting until such time and to such place as may be determined by a
60-5 vote of the holders of a majority of the shares represented in
60-6 person or by proxy at that meeting.
60-7 (C) With respect to any matter, other than the election of
60-8 trust manager(s) or a matter for which the affirmative vote of the
60-9 holders of a specified portion of the shares entitled to vote is
60-10 required by this Act, the affirmative vote of the holders of a
60-11 majority of the shares entitled to vote on, and that voted for or
60-12 against or expressly abstained with respect to, that matter at a
60-13 meeting of shareholders at which a quorum is present shall be the
60-14 act of the shareholders, unless otherwise provided in the
60-15 declaration of trust or the bylaws in accordance with this Section.
60-16 With respect to any matter, other than the election of trust
60-17 manager(s) or a matter for which the affirmative vote of the
60-18 holders of a specified portion of the shares entitled to vote is
60-19 required by this Act, the declaration of trust or the bylaws may
60-20 provide:
60-21 (1) that the act of the shareholders shall be the
60-22 affirmative vote of the holders of a specified portion, but not
60-23 less than a majority, of the shares entitled to vote on that
60-24 matter;
60-25 (2) that the act of the shareholders shall be the
60-26 affirmative vote of the holders of a specified portion, but not
60-27 less than a majority, of the shares entitled to vote on that matter
61-1 and represented in person or by proxy at a meeting of shareholders
61-2 at which a quorum is present;
61-3 (3) 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, and voted
61-6 for or against, that matter at a meeting of shareholders at which a
61-7 quorum is present; or
61-8 (4) 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 that
61-11 voted for or against or expressly abstained with respect to, that
61-12 matter at a meeting of shareholders at which a quorum is present.
61-13 (D) Unless otherwise provided in the declaration of trust or
61-14 the bylaws in accordance with this Section, trust manager(s) shall
61-15 be elected by two-thirds (2/3) of the votes cast by the holders of
61-16 shares entitled to vote in the election of trust manager(s) at a
61-17 meeting of shareholders at which a quorum is present. The
61-18 declaration of trust or the bylaws may provide:
61-19 (1) that a trust manager shall be elected only if the
61-20 trust manager receives the vote of the holders of a specified
61-21 portion, but not less than a majority, of the shares entitled to
61-22 vote in the election of trust manager(s);
61-23 (2) that a trust manager shall be elected only if the
61-24 trust manager receives the vote of the holders of a specified
61-25 portion, but not less than a majority, of the shares entitled to
61-26 vote in the election of trust manager(s) and represented in person
61-27 or by proxy at a meeting of shareholders at which a quorum is
62-1 present; or
62-2 (3) that a trust manager shall be elected only if the
62-3 trust manager receives a specified portion, but not less than a
62-4 majority, of the votes cast by the holders of shares entitled to
62-5 vote in the election of trust manager(s) at a meeting of
62-6 shareholders at which a quorum is present.
62-7 (E) With respect to any matter for which the affirmative
62-8 vote of the holders of a specified portion of the shares entitled
62-9 to vote is required by this Act, the declaration of trust may
62-10 provide that the act of the shareholders on that matter shall be
62-11 the affirmative vote of the holders of a specified portion, but not
62-12 less than a majority, of the shares entitled to vote on that
62-13 matter, rather than the affirmative vote otherwise required by this
62-14 Act. With respect to any matter for which the affirmative vote of
62-15 the holders of a specified portion of the shares of any class or
62-16 series is required by this Act, the declaration of trust also may
62-17 provide that the act of the holders of shares of that class or
62-18 series on that matter shall be the affirmative vote of the holders
62-19 of a specified portion, but not less than a majority, of the shares
62-20 of that class or series, rather than the affirmative vote of the
62-21 holders of shares of that class or series otherwise required by
62-22 this Act. If any provision of the declaration of trust provides
62-23 that the act of the shareholders on any matter shall be the
62-24 affirmative vote of the holders of a specified portion of the
62-25 shares entitled to vote on that matter that is greater than a
62-26 majority of the shares so entitled to vote, that provision of the
62-27 declaration of trust may not be amended or modified, directly or
63-1 indirectly, without the affirmative vote of the holders of that
63-2 greater portion of the shares entitled to vote on that matter,
63-3 unless otherwise provided in the declaration of trust. If any
63-4 provision of the declaration of trust provides that the act of the
63-5 holders of shares of any class or series on any matter shall be the
63-6 affirmative vote of the holders of a specified portion of the
63-7 shares of that class or series that is greater than a majority of
63-8 the shares of that class or series, that provision of the
63-9 declaration of trust may not be amended or modified, directly or
63-10 indirectly, without the affirmative vote of the holders of that
63-11 greater portion of the shares of that class or series, unless
63-12 otherwise provided in the declaration of trust.
63-13 (F) A real estate investment trust may establish procedures
63-14 in its bylaws, consistent with this Act, for determining the
63-15 validity of proxies and whether shares that are held of record by a
63-16 bank, broker, or other nominee are represented at a meeting of
63-17 shareholders with respect to any matter. Those procedures may
63-18 incorporate or look to rules and determinations of self regulatory
63-19 organizations regulating that bank, broker, or other nominee
63-20 <Unless otherwise provided in the declaration of trust, the holders
63-21 of a majority of the shares entitled to vote, represented in person
63-22 or by proxy, shall constitute a quorum at a meeting of
63-23 shareholders, but in no event shall a quorum consist of the holders
63-24 of less than one-third (1/3) of the shares entitled to vote and
63-25 thus represented at such meeting. The vote of the holders of a
63-26 majority of the shares entitled to vote and thus represented at a
63-27 meeting at which a quorum is present, shall be the act of the
64-1 shareholders meeting, unless the vote of a greater number is
64-2 required by law, the declaration of trust or by-laws>.
64-3 Sec. 13.10 <13>. VOTING OF SHARES. (A)(1) Each outstanding
64-4 share, regardless of class, shall be entitled to one vote on each
64-5 matter submitted to a vote at a meeting of shareholders, except:
64-6 (a) to the extent that the declaration of trust
64-7 provides for more or less than one vote per share or (if and to the
64-8 extent permitted by this Act) limits or denies voting rights to the
64-9 holders of the shares of any class or series; or
64-10 (b) as otherwise provided by this Act.
64-11 (2) If the declaration of trust provides for more or
64-12 less than one vote per share for all the outstanding shares or for
64-13 the shares of any class or any series on any matter, every
64-14 reference in this Act (or in the declaration of trust or bylaws,
64-15 unless expressly stated otherwise in the declaration of trust or
64-16 bylaws), in connection with such matter, to a specified portion of
64-17 those shares shall mean the portion of the votes entitled to be
64-18 cast in respect of the shares by virtue of the provisions of the
64-19 declaration of trust.
64-20 (B) Shares of the stock of a real estate investment trust
64-21 that are owned by another real estate investment trust or
64-22 corporation, if a majority of the voting stock of the other real
64-23 estate investment trust or corporation is owned or controlled by
64-24 the real estate investment trust, may not be voted, directly or
64-25 indirectly, at any meeting, and may not be counted in determining
64-26 the total number of outstanding shares at any given time. Nothing
64-27 in this Subsection shall be construed as limiting the right of any
65-1 real estate investment trust to vote stock, including voting its
65-2 own stock, held or controlled by the real estate investment trust
65-3 in a fiduciary capacity or with respect to which the real estate
65-4 investment trust otherwise exercises voting power in a fiduciary
65-5 capacity.
65-6 (C) Any shareholder may vote either in person or by proxy
65-7 executed in writing by the shareholder. A telegram, telex,
65-8 cablegram, or similar transmission by the shareholder, or a
65-9 photographic, photostatic, facsimile, or similar reproduction of a
65-10 writing executed by the shareholder, shall be treated as an
65-11 execution in writing for purposes of this Section. No proxy shall
65-12 be valid after 11 months from the date of its execution unless
65-13 provided otherwise in the proxy. A proxy shall be revocable unless
65-14 the proxy form conspicuously states that the proxy is irrevocable
65-15 and the proxy is coupled with an interest. Proxies coupled with an
65-16 interest include the appointment as proxy of:
65-17 (1) a pledgee;
65-18 (2) a person who purchased or agreed to purchase, or
65-19 owns or holds an option to purchase, the shares;
65-20 (3) a creditor of the real estate investment trust who
65-21 extended to the real estate investment trust credit under terms
65-22 requiring the appointment;
65-23 (4) an employee of the real estate investment trust
65-24 whose employment contract requires the appointment; or
65-25 (5) a party to a voting agreement created under
65-26 Subsection (B) of Section 13.20 of this Act.
65-27 (D) An irrevocable proxy, if noted conspicuously on the
66-1 certificate representing the shares that are subject to the
66-2 irrevocable proxy or, in the case of uncertificated shares, if
66-3 notation of the irrevocable proxy is contained in the notice sent
66-4 pursuant to Subsection (D) of Section 7.20 of this Act with respect
66-5 to the shares that are subject to the irrevocable proxy, shall be
66-6 specifically enforceable against the holder of those shares or any
66-7 successor or transferee of the holder. Unless noted conspicuously
66-8 on the certificate representing the shares that are subject to the
66-9 irrevocable proxy or, in the case of uncertificated shares, unless
66-10 notation of the irrevocable proxy is contained in the notice sent
66-11 pursuant to Subsection (D) of Section 7.20 of this Act with respect
66-12 to the shares that are subject to the irrevocable proxy, an
66-13 irrevocable proxy, even though otherwise enforceable, is
66-14 ineffective against a transferee for value without actual knowledge
66-15 of the existence of the irrevocable proxy at the time of the
66-16 transfer or against any subsequent transferee (whether or not for
66-17 value). The irrevocable proxy shall be specifically enforceable
66-18 against any other person who is not a transferee for value from and
66-19 after the time that the person acquires actual knowledge of the
66-20 existence of the irrevocable proxy.
66-21 (E)(1) At each election of trust manager(s), every
66-22 shareholder entitled to vote at the election shall have the right
66-23 to vote, in person or by proxy, the number of shares owned by the
66-24 shareholder for as many persons as there are trust manager(s) to be
66-25 elected and for whose election the shareholder has a right to vote.
66-26 (2) Cumulative voting, whereby a shareholder gives one
66-27 candidate as many votes as the number of trust manager(s)
67-1 multiplied by the shareholder's shares shall equal, or by
67-2 distributing such votes on the same principle among any number of
67-3 candidates, may not be permitted unless specifically authorized in
67-4 the declaration of trust. If cumulative voting is authorized in
67-5 the declaration of trust, any shareholder who intends to cumulate
67-6 the shareholder's votes accordingly must give written notice of the
67-7 shareholder's intention to cumulate the shareholder's votes to the
67-8 trust manager(s) on or before the day preceding the election at
67-9 which the shareholder intends to cumulate the shareholder's votes.
67-10 (F) Shares standing in the name of another real estate
67-11 investment trust or corporation, domestic or foreign, may be voted
67-12 by an officer, agent, or proxy that is authorized to vote those
67-13 shares by the bylaws of the real estate investment trust or
67-14 corporation, or, in the absence of such authorization, by an
67-15 officer, agent, or proxy as determined by the trust manager(s) or
67-16 board of directors of the real estate investment trust or
67-17 corporation. When any foreign real estate investment trust or
67-18 corporation without a permit to do business in this state lawfully
67-19 owns or may lawfully own or acquire stock in a Texas real estate
67-20 investment trust, the foreign real estate investment trust or
67-21 corporation may vote that stock and participate in the management
67-22 and control of the business and affairs of the Texas real estate
67-23 investment trust, as other shareholders, subject to all laws and
67-24 rules governing real estate investment trusts in this state,
67-25 including especially the provisions of the antitrust laws of this
67-26 state.
67-27 (G) Shares held by a person who is an administrator,
68-1 executor, guardian, or conservator may be voted by the person so
68-2 long as the shares forming a part of an estate are in the
68-3 possession and forming a part of the estate being served by the
68-4 person, either personally or by proxy, without a transfer of such
68-5 shares into the person's name. Shares standing in the name of a
68-6 trustee may be voted by the trustee, either personally or by proxy,
68-7 but a trustee is not entitled to vote shares held by the trustee
68-8 without a transfer of those shares into the trustee's name as
68-9 trustee.
68-10 (H) Shares standing in the name of, held by, or under the
68-11 control of a receiver may be voted by the receiver, without
68-12 transferring the shares into the receiver's name if authority to
68-13 vote the shares is contained in an appropriate court order by which
68-14 the receiver was appointed to serve as receiver.
68-15 (I) A shareholder whose shares are pledged is entitled to
68-16 vote those shares until the shares have been transferred into the
68-17 pledgee's name. After the shares have been transferred into the
68-18 pledgee's name, the pledgee shall be entitled to vote the
68-19 transferred shares <A shareholder may vote either in person or by
68-20 proxy executed in writing by the shareholder or by his duly
68-21 authorized attorney in fact. No proxy shall be valid after eleven
68-22 (11) months from the date of its execution unless otherwise
68-23 provided in the proxy. Each proxy shall be revocable unless
68-24 expressly provided therein to be irrevocable, but in no event shall
68-25 it remain irrevocable for a period of more than eleven (11) months.>
68-26 <(C)(1) At each election for trust manager(s) every
68-27 shareholder entitled to vote at such election shall have the right
69-1 to vote, in person or by proxy, the number of shares owned by him
69-2 for as many persons as there are trust manager(s) to be elected and
69-3 for whose election he has a right to vote, or unless expressly
69-4 prohibited by the declaration of trust, to cumulate his votes by
69-5 giving one (1) candidate as many votes as the number of such trust
69-6 manager(s) multiplied by his shares shall equal, or by distributing
69-7 such votes on the same principle among any number of such
69-8 candidates.>
69-9 <(2) No amendment of the declaration of trust
69-10 prohibiting the right of cumulative voting shall be effective
69-11 unless at least sixty-six and two-thirds per cent (66 2/3%) of the
69-12 outstanding shares entitled to vote upon such amendment shall have
69-13 been voted in favor of such amendment.>
69-14 <(3) Any shareholder who intends to cumulate his votes
69-15 as herein authorized shall give written notice of such intention to
69-16 the trust manager(s) on or before the day preceding the election at
69-17 which such shareholder intends to cumulate his votes>.
69-18 Sec. 13.20. VOTING TRUSTS AND VOTING AGREEMENTS. (A) Any
69-19 number of shareholders of a real estate investment trust may enter
69-20 into a written voting trust agreement to confer on a trustee or
69-21 trustees the right to vote or otherwise represent shares of the
69-22 real estate investment trust. The shares that are to be subject to
69-23 the agreement shall be transferred to the trustee or trustees for
69-24 purposes of the agreement, and a counterpart of the agreement shall
69-25 be deposited with the real estate investment trust at its principal
69-26 place of business or registered office. The counterpart of the
69-27 voting trust agreement deposited with the real estate investment
70-1 trust shall be subject to the same right of examination by a
70-2 shareholder of the real estate investment trust, in person or by
70-3 agent or attorney, as are the books and records of the real estate
70-4 investment trust, and shall be subject to examination by any holder
70-5 of a beneficial interest in the voting trust, either in person or
70-6 by agent or attorney, at any reasonable time for any proper
70-7 purpose.
70-8 (B) Any number of shareholders of a real estate investment
70-9 trust, or any number of shareholders of a real estate investment
70-10 trust and the real estate investment trust itself, may enter into a
70-11 written voting agreement for the purpose of providing that shares
70-12 of the real estate investment trust must be voted in the manner
70-13 prescribed in the agreement. A counterpart of the agreement shall
70-14 be deposited with the real estate investment trust at its principal
70-15 place of business or registered office and shall be subject to the
70-16 same right of examination by a shareholder of the real estate
70-17 investment trust, in person or by agent or attorney, as are the
70-18 books and records of the real estate investment trust. The
70-19 agreement is specifically enforceable against the holders of those
70-20 shares or any successor or transferee of the holder, if the
70-21 agreement is noted conspicuously on the certificate representing
70-22 the shares that are subject to the agreement or, in the case of
70-23 uncertificated shares, if notation of the agreement is contained in
70-24 the notice sent pursuant to Subsection (D) of Section 7.20 of this
70-25 Act with respect to the shares that are subject to the agreement.
70-26 Unless noted conspicuously on the certificate representing the
70-27 shares that are subject to the agreement or, in the case of
71-1 uncertificated shares, unless notation of the agreement is
71-2 contained in the notice sent pursuant to Subsection (D) of Section
71-3 7.20 of this Act with respect to the shares that are subject to the
71-4 agreement, the agreement, even though otherwise enforceable, is
71-5 ineffective against a transferee for value without actual knowledge
71-6 of the existence of the agreement at the time of the transfer or
71-7 against any subsequent transferee (whether or not for value). The
71-8 agreement is specifically enforceable against any other person who
71-9 is not a transferee for value from and after the time that the
71-10 person acquires actual knowledge of the existence of the agreement.
71-11 A voting agreement entered into pursuant to this Subsection is not
71-12 subject to Subsection (A) of this Section.
71-13 Sec. 14.10 <14>. DISTRIBUTIONS <DIVIDENDS>. (A) The trust
71-14 manager(s) may authorize and the real estate investment trust may
71-15 make distributions subject to any restrictions in its declaration
71-16 of trust and to the limitations set forth in this Section.
71-17 (B) A real estate investment trust may not make a
71-18 distribution if:
71-19 (1) after giving effect to the distribution, the real
71-20 estate investment trust would be insolvent; or
71-21 (2) the distribution exceeds the surplus of the real
71-22 estate investment trust.
71-23 (C) Notwithstanding the limitation set forth in Subdivision
71-24 (2) of Subsection (B) of this Section, if the net assets of a real
71-25 estate investment trust are not less than the amount of the
71-26 proposed distribution, the real estate investment trust may make a
71-27 distribution involving a purchase or redemption of any of its own
72-1 shares if the purchase or redemption is made by the real estate
72-2 investment trust to:
72-3 (1) eliminate fractional shares;
72-4 (2) collect or compromise indebtedness owed by or to
72-5 the real estate investment trust;
72-6 (3) pay dissenting shareholders entitled to payment
72-7 for their shares under this Act; or
72-8 (4) effect the purchase or redemption of redeemable
72-9 shares in accordance with this Act.
72-10 (D) A real estate investment trust's indebtedness to a
72-11 shareholder incurred by reason of a distribution made in accordance
72-12 with this Section shall be at parity with the real estate
72-13 investment trust's indebtedness to its general, unsecured
72-14 creditors, except to the extent the indebtedness is subordinated,
72-15 or payment of that indebtedness is secured, by agreement <The trust
72-16 manager(s) may from time to time, declare and the trust may pay,
72-17 dividends on its outstanding shares in cash, in property, or in its
72-18 own shares, except when the trust is insolvent or when the payment
72-19 thereof would render the trust insolvent, or when the declaration
72-20 or payment thereof would be contrary to any restrictions contained
72-21 in the declaration of trust.>
72-22 <(B) The trust manager(s) must, when requested by the
72-23 holders of at least one-third (1/3) of the outstanding shares of
72-24 the trust, present written reports of the situation and amount of
72-25 business of the trust and, subject to limitations on the authority
72-26 of the trust manager(s) by provisions of law, or the declaration of
72-27 trust or the by-laws, the trust manager(s) shall declare and
73-1 provide for payment of such dividends of the profits from the
73-2 business of the trust as such trust manager(s) shall deem
73-3 expedient>.
73-4 Sec. 14.20. SHARE DIVIDENDS. (A) The trust manager(s) of a
73-5 real estate investment trust may authorize and the real estate
73-6 investment trust may pay share dividends subject to any
73-7 restrictions in the declaration of trust of the real estate
73-8 investment trust and to the limitations set forth in this Section.
73-9 (B) A real estate investment trust may not pay a share
73-10 dividend payable in authorized but unissued shares if the surplus
73-11 of the real estate investment trust is less than the amount
73-12 required by this Section to be transferred to stated capital at the
73-13 time that share dividend is paid.
73-14 (C) If a share dividend is payable in authorized but
73-15 unissued shares having a par value, those shares shall be issued at
73-16 the par value. At the time that share dividend is paid, an amount
73-17 of surplus designated by the trust manager(s), in an amount not
73-18 less than the aggregate par value of the shares to be issued as a
73-19 share dividend, shall be transferred to stated capital.
73-20 (D) If a share dividend is payable in authorized but
73-21 unissued shares without par value, those shares shall be issued at
73-22 the value fixed by resolution of the trust manager(s) adopted at
73-23 the time the share dividend is authorized. At the time the share
73-24 dividend is paid, an amount of surplus equal to the aggregate value
73-25 fixed in respect of those shares shall be transferred to stated
73-26 capital.
73-27 (E) A share dividend payable in shares of any class may not
74-1 be paid to the holders of shares of any other class unless the
74-2 declaration of trust so provides or unless the payment is
74-3 authorized by the affirmative vote or the written consent of the
74-4 holders of at least a majority of the outstanding shares of the
74-5 class in which the payment is to be made.
74-6 Sec. 14.30. SPLIT-UP OR DIVISION WITHOUT STATED CAPITAL
74-7 INCREASE. A split-up or division of the issued shares of any class
74-8 of a real estate investment trust into a greater number of shares
74-9 of the same class without increasing the stated capital of the real
74-10 estate investment trust does not constitute a share dividend or a
74-11 distribution and may therefore be approved and authorized by the
74-12 trust manager(s) and carried out by the real estate investment
74-13 trust.
74-14 Sec. 14.40. DETERMINATION OF NET ASSETS, STATED CAPITAL, AND
74-15 SURPLUS. (A) Determinations whether a real estate investment
74-16 trust is insolvent and determinations of the value of the net
74-17 assets and of stated capital and surplus of the real estate
74-18 investment trust, and each of their components, may, but are not
74-19 required to, be based on:
74-20 (1) financial statements of the real estate investment
74-21 trust that present the financial condition of the real estate
74-22 investment trust in accordance with generally accepted accounting
74-23 principles, including financial statements that include subsidiary
74-24 or other entities accounted for on a consolidated basis or on the
74-25 equity method of accounting;
74-26 (2) financial statements prepared on the basis of
74-27 accounting used to file the real estate investment trust's federal
75-1 income tax return or any other accounting practices and principles
75-2 that are reasonable in the circumstances;
75-3 (3) financial information that is prepared on a basis
75-4 consistent with the financial statements referred to in
75-5 Subdivisions (1) and (2) of this Subsection, including condensed or
75-6 summary financial statements;
75-7 (4) projection, forecast, or other forward-looking
75-8 information relating to the future economic performance, financial
75-9 condition, or liquidity of the real estate investment trust that is
75-10 reasonable in the circumstances;
75-11 (5) a fair valuation or information from any other
75-12 method that is reasonable in the circumstances; or
75-13 (6) any combination of the statements, valuations, or
75-14 information authorized by this Subsection.
75-15 (B) Subsection (A) of this Section and the determinations
75-16 made in accordance with that Subsection do not apply to the
75-17 calculation of any tax imposed under the laws of this state.
75-18 Sec. 14.50. DATE OF DETERMINATION OF SURPLUS. (A) In the
75-19 case of a distribution by a real estate investment trust or the
75-20 payment of a share dividend, the surplus of the real estate
75-21 investment trust shall be determined, and the determination whether
75-22 the real estate investment trust would be insolvent after giving
75-23 effect to the distribution shall be made:
75-24 (1) if the action is to be taken on or before the
75-25 120th day after the date of authorization, on the date that action
75-26 is authorized by the trust manager(s); or
75-27 (2) if the action is taken after the 120th day after
76-1 the date of authorization, on the date:
76-2 (a) that is within 120 days before the date the
76-3 action is to be taken and that is designated by the trust
76-4 manager(s); or
76-5 (b) on the date the action is taken if the trust
76-6 manager(s) does not make the designation described by Subdivision
76-7 (2)(a) of this Subsection.
76-8 (B) For the purposes of this Section, a distribution that
76-9 involves the incurrence by a real estate investment trust of any
76-10 indebtedness or deferred payment obligation or a distribution that
76-11 involves a contract by the real estate investment trust to acquire
76-12 any of its own shares is considered to have been made on the date
76-13 the indebtedness or obligation is incurred or, in the case of a
76-14 contract to purchase shares, at the option of the real estate
76-15 investment trust, either the date the contract is made or is
76-16 effective or the date on which the shares to be acquired are
76-17 acquired.
76-18 Sec. 14.60. SURPLUS AND RESERVES. A real estate investment
76-19 trust, by resolution of its trust managers, may:
76-20 (1) create a reserve or reserves out of its surplus or
76-21 designate or allocate any part or all of its surplus in any manner
76-22 for any proper purpose or purposes; and
76-23 (2) increase, decrease, or abolish the reserve,
76-24 designation, or allocation in the same manner.
76-25 Sec. 15.10 <15>. Liability of trust manager(s). (A) In
76-26 addition to any other liabilities imposed by law upon trust
76-27 manager(s) of a real estate investment trust:
77-1 (1) The trust manager(s) of a real estate investment
77-2 trust who vote for or assent to any distribution of assets of a
77-3 real estate investment trust to its shareholders during the
77-4 liquidation of the real estate investment trust without the payment
77-5 and discharge of, or making adequate provisions for, all known
77-6 debts, obligations and liabilities of the real estate investment
77-7 trust shall be jointly and severally liable to the real estate
77-8 investment trust for the value of such assets which are
77-9 distributed, to the extent that such debts, obligations and
77-10 liabilities of the real estate investment trust are not thereafter
77-11 paid and discharged.
77-12 (2) The trust manager(s) of a real estate investment
77-13 trust who vote for or assent to the making of a loan to an officer
77-14 or real estate investment trust manager(s) of the real estate
77-15 investment trust or the making of any loans secured by the shares
77-16 of the real estate investment trust, shall be jointly and severally
77-17 liable to the real estate investment trust for the amount of such
77-18 loan until the repayment thereof.
77-19 (3) If the real estate investment trust shall commence
77-20 business <operations> before the real estate investment trust has
77-21 received for the issuance of shares of beneficial interest
77-22 consideration of at least a $1,000 value, consisting of any
77-23 tangible or intangible benefit to the real estate investment trust,
77-24 including cash, promissory notes, services performed for, contracts
77-25 for services to be performed for, or other securities of the real
77-26 estate investment trust <beneficial ownership is held by one
77-27 hundred (100) or more persons with no five (5) persons owning more
78-1 than fifty per cent (50%) of the total number of outstanding shares
78-2 of beneficial interest>, the real estate investment trust
78-3 manager(s) who assent thereto shall be jointly and severally liable
78-4 to the trust for the part of the required consideration that has
78-5 not been received before commencing business <all debts and
78-6 obligations incurred by the trust prior to the time the beneficial
78-7 ownership is so held>, but such liability shall be terminated when
78-8 the real estate investment trust has actually received the required
78-9 consideration for the issuance <issued the required number> of
78-10 shares.
78-11 (B) The trust manager(s) shall not be liable under
78-12 Subsection (A)(1) <Subsection 1 of paragraph (A)> of this Section
78-13 if, in the exercise of ordinary care, in good faith, in determining
78-14 the amount available for any such dividend or distribution, he (i)
78-15 considered the assets to be of their book value or (ii) relied on
78-16 information, opinions, reports, or statements, including financial
78-17 statements and other financial data, concerning the real estate
78-18 investment trust or another person, that were prepared or presented
78-19 by:
78-20 (a) one or more officers or employees of the
78-21 real estate investment trust, other than the trust manager;
78-22 (b) legal counsel, public accountants,
78-23 investment bankers, or other persons as to matters the trust
78-24 manager reasonably believes are within the person's professional or
78-25 expert competence; or
78-26 (c) a committee of the trust managers of which
78-27 the trust manager is not a member.
79-1 (C) A trust manager(s) shall not be liable for any claims or
79-2 damages that may result from his acts in the discharge of any duty
79-3 imposed or power conferred upon him by the real estate investment
79-4 trust, if, in the exercise of ordinary care, he acted in good faith
79-5 and in reliance upon information, opinions, reports, or statements,
79-6 including financial statements and other financial data, concerning
79-7 the real estate investment trust or another person, that were
79-8 prepared or presented by:
79-9 (1) one or more officers or employees of the real
79-10 estate investment trust, other than the real estate investment
79-11 trust manager;
79-12 (2) legal counsel, public accountants, investment
79-13 bankers, or other persons as to matters the trust manager
79-14 reasonably believes are within the person's professional or expert
79-15 competence; or
79-16 (3) a committee of the trust managers of which the
79-17 trust manager is not a member.
79-18 (D) A trust manager is not relying in good faith within the
79-19 meaning of this Section if the trust manager has knowledge
79-20 concerning the matter in question that makes reliance otherwise
79-21 permitted by this Section unwarranted <the written opinion of an
79-22 attorney for the trust>.
79-23 (E) <(D)> No trust manager shall be liable to the real
79-24 estate investment trust for any act, omission, loss, damage, or
79-25 expense arising from the performance of his duty under a real
79-26 estate investment trust, save only for his own wilful misfeasance,
79-27 wilful <or> malfeasance, or gross negligence.
80-1 (F) A trust manager found liable with respect to a claim is
80-2 entitled to receive contribution, as appropriate to achieve equity,
80-3 from each of the other trust managers who are liable with respect
80-4 to that claim.
80-5 (G) An action may not be brought against a trust manager for
80-6 liability imposed by this Section after two years after the date on
80-7 which the act alleged to give rise to the liability occurred.
80-8 <Sec. 16. ><Share as Personal Property><. A share of beneficial
80-9 ownership in a real estate investment trust shall be considered
80-10 personal property.>
80-11 Sec. 17.10 <17>. Joinder of Shareholders Not Required. The
80-12 joinder of shareholders in any sale, mortgage, lease, or other
80-13 disposition of all or any part of assets of a real estate
80-14 investment trust shall not be required.
80-15 Sec. 18.10 <18>. Books and Records. (A) Each real estate
80-16 investment trust shall keep complete and correct books of account
80-17 and shall keep minutes of the proceedings of its shareholders and
80-18 trust manager(s) and shall keep at its principal office or place of
80-19 business a record of its shareholders giving the names and
80-20 addresses of all shareholders and the number of shares held by
80-21 each.
80-22 (B) Any person who shall have been a shareholder of record
80-23 for at least six (6) months immediately preceding his demand, or
80-24 who shall be the holder of record of at least five per cent (5%) of
80-25 all the outstanding shares of a real estate investment trust, upon
80-26 written demand stating the purpose thereof, shall have the right to
80-27 examine, in person or by agent or attorney, at any reasonable time
81-1 or times, for any proper purpose, its books and records of account,
81-2 minutes and record of shareholders, and shall be entitled to make
81-3 extracts therefrom.
81-4 (C) Nothing herein contained shall impair the power of any
81-5 court of competent jurisdiction, upon proof by a shareholder of
81-6 proper purpose, irrespective of the period of time during which
81-7 such shareholder shall have been a shareholder of record, and
81-8 irrespective of the number of shares held by him, to compel
81-9 production, for examination by such shareholder, of the books and
81-10 records of account, minutes, and record of shareholders of a real
81-11 estate investment trust.
81-12 <Sec. 19. ><Transfer of Shares><. The shares of ownership shall
81-13 be transferable by an appropriate instrument in writing and by the
81-14 surrender of the shares of ownership to the trust manager(s) or to
81-15 the persons designated by them, but no transfer shall be of any
81-16 effect as against the trust of the trust manager(s) until it has
81-17 been recorded upon the books of the trust kept for that purpose.>
81-18 Sec. 19.10 <20>. Termination and liquidation. A real estate
81-19 investment trust may be dissolved by the affirmative vote of the
81-20 holders of at least two-thirds (2/3) of the outstanding voting
81-21 shares of the real estate investment trust, unless any class or
81-22 series of shares is entitled to vote as a class on the dissolution,
81-23 in which case the resolution shall require for its adoption the
81-24 affirmative vote of the holders of at least two-thirds of the
81-25 outstanding shares within each class or series of shares entitled
81-26 to vote as a class on the dissolution and at least two-thirds of
81-27 the outstanding shares otherwise entitled to vote on the
82-1 dissolution. Shares entitled to vote as a class shall be entitled
82-2 to vote only as a class unless otherwise entitled to vote on each
82-3 matter generally or provided in the declaration of trust. Upon
82-4 receiving such vote, the trust manager(s) shall liquidate the real
82-5 estate investment trust and distribute the remaining property and
82-6 assets of the real estate investment trust among its shareholders
82-7 in accordance with their respective rights and interests after
82-8 applying such property as far as it will go to the just and
82-9 equitable payment of the liabilities and obligations of the real
82-10 estate investment trust. Upon the filing by the trust manager(s)
82-11 of a withdrawal of assumed name certificate as provided by law, the
82-12 real estate investment trust shall cease to carry on its business,
82-13 except insofar as may be necessary for the winding up thereof.
82-14 <Sec. 21. ><Greater Voting Requirements><. Whenever, with
82-15 respect to any action taken by the shareholders of a trust, the
82-16 declaration of trust requires the vote or concurrence of the
82-17 holders of a greater portion of the shares than is required by this
82-18 Act, with respect to such action, the provisions of the declaration
82-19 of trust shall control.>
82-20 Sec. 21.10 <22>. Waiver of Notice. Whenever any notice is
82-21 required to be given to any shareholder of a real estate investment
82-22 trust under the provisions of this Act or under the provisions of
82-23 the declaration of trust or bylaws <by-laws> of the real estate
82-24 investment trust, a waiver thereof in writing, signed by the person
82-25 or persons entitled to such notice, whether before or after the
82-26 time stated therein, shall be equivalent to the giving of such
82-27 notice.
83-1 Sec. 22.10 <23>. Right to Amend Declaration of Trust. (A)
83-2 A real estate investment trust may amend its declaration of trust,
83-3 from time to time, in any and as many respects as may be desired,
83-4 so long as its declaration of trust as amended contains only such
83-5 provisions as may be lawfully contained in original declaration of
83-6 trust at the time of making such amendment, and, if a change in
83-7 shares or the rights of shareholders, or an exchange,
83-8 reclassification, or cancellation of shares or rights of
83-9 shareholders is to be made, such provisions as may be necessary to
83-10 effect such change, exchange, reclassification or cancellation.
83-11 <The declaration of trust may be amended upon receipt of the
83-12 affirmative vote of the holders of at least two-thirds (2/3) of the
83-13 outstanding shares of the trust. Any and all amendments to the
83-14 declaration of trust shall be made of record in the same manner as
83-15 the original declaration of trust.>
83-16 (B) A shareholder of a real estate investment trust does not
83-17 have a vested property right resulting from any provision in the
83-18 declaration of trust, including a provision relating to management,
83-19 control, capital structure, dividend entitlement, or purpose or
83-20 duration of the real estate investment trust.
83-21 Sec. 22.20. PROCEDURE TO AMEND DECLARATION OF TRUST. (A)
83-22 The declaration of trust may be amended in the following manner:
83-23 (1) The trust manager(s) shall adopt a resolution
83-24 setting forth the proposed amendment and, if shares have been
83-25 issued, directing that the amendment be submitted to a vote at an
83-26 annual or special meeting of shareholders. If no shares have been
83-27 issued, the amendment shall be adopted by resolution of the trust
84-1 manager(s) and the provisions for adoption by shareholders may not
84-2 apply. The resolution may incorporate the proposed amendment in a
84-3 restated declaration of trust that contains a statement that except
84-4 for the designated amendment the restated declaration of trust
84-5 correctly sets forth without change the corresponding provisions of
84-6 the original declaration of trust, and that the restated
84-7 declaration of trust together with the designated amendment
84-8 supersedes the original declaration of trust and all amendments to
84-9 the original declaration of trust.
84-10 (2) Written or printed notice setting forth the
84-11 proposed amendment or a summary of the changes to be effected by
84-12 the proposed amendment shall be given to each shareholder of record
84-13 entitled to vote on the proposed amendment within the time and in
84-14 the manner provided in this Act for giving notice of meetings of
84-15 shareholders. If the meeting is an annual meeting, the proposed
84-16 amendment or the summary of the changes may be included in the
84-17 notice of the annual meeting.
84-18 (3) At the meeting, a vote of the shareholders
84-19 entitled to vote on the proposed amendment shall be taken on the
84-20 proposed amendment. The proposed amendment is adopted on receiving
84-21 the affirmative vote of the holders of at least two-thirds (2/3) of
84-22 the outstanding shares entitled to vote on the proposed amendment,
84-23 unless any class or series of shares is entitled to vote on the
84-24 proposed amendment as a class, in which case the proposed amendment
84-25 shall be adopted on receiving the affirmative vote of the holders
84-26 of at least two-thirds (2/3) of the shares within each class or
84-27 series of outstanding shares entitled to vote on the proposed
85-1 amendment as a class and of at least two-thirds (2/3) of the total
85-2 outstanding shares entitled to vote on the proposed amendment.
85-3 (B) Any number of amendments may be submitted to and voted
85-4 on by the shareholders at one meeting.
85-5 Sec. 22.30. CLASS VOTING ON AMENDMENTS. (A) The holders of
85-6 the outstanding shares of a class shall be entitled to vote as a
85-7 class on a proposed amendment, and the holders of the outstanding
85-8 shares of a series shall be entitled to vote as a class on a
85-9 proposed amendment, whether or not entitled to vote on the proposed
85-10 amendment by the provisions of the declaration of trust, if the
85-11 amendment would accomplish any of the following, unless the
85-12 amendment is undertaken pursuant to authority granted to the trust
85-13 manager(s) in the declaration of trust in accordance with Section
85-14 3.30 of this Act:
85-15 (1) Increase or decrease the aggregate number of
85-16 authorized shares of such class or series.
85-17 (2) Increase or decrease the par value of the shares
85-18 of such class, including changing shares having a par value into
85-19 shares without par value, or shares without par value into shares
85-20 with par value.
85-21 (3) Effect an exchange, reclassification, or
85-22 cancellation of all or part of the shares of such class or series.
85-23 (4) Effect an exchange, or create a right of exchange,
85-24 of all or any part of the shares of another class into the shares
85-25 of such class or series.
85-26 (5) Change the designations, preferences, limitations,
85-27 or relative rights of the shares of such class or series.
86-1 (6) Change the shares of such class or series, whether
86-2 with or without par value, into the same or a different number of
86-3 shares, either with or without par value, of the same class or
86-4 series or another class or series.
86-5 (7) Create a new class or series of shares having
86-6 rights and preferences equal, prior, or superior to the shares of
86-7 the class or series, or increase the rights and preferences of any
86-8 class or series having rights and preferences equal, prior, or
86-9 superior to the shares of the class or series, or increase the
86-10 rights and preferences of any class or series having rights or
86-11 preferences later or inferior to the shares of the class or series
86-12 in such a manner as to become equal, prior, or superior to the
86-13 shares of the class or series.
86-14 (8) Divide the shares of the class into series and fix
86-15 and determine the designation of the series and the variations in
86-16 the relative rights and preferences between the shares of the
86-17 series.
86-18 (9) Limit or deny the existing preemptive rights of
86-19 the shares of the class or series, if the rights have previously
86-20 been granted pursuant to this Act.
86-21 (10) Cancel or otherwise affect dividends on the
86-22 shares of the class or series that had accrued but had not been
86-23 declared.
86-24 (B) Unless otherwise provided in a real estate investment
86-25 trust's declaration of trust, if the holders of the outstanding
86-26 shares of a class that is divided into series are entitled to vote
86-27 as a class on a proposed amendment and the amendment would affect
87-1 all series of the class (other than any series of which no shares
87-2 are outstanding or any series that is not affected by the
87-3 amendment) equally, the holders of the separate series are not
87-4 entitled to separate class votes.
87-5 (C) Unless otherwise provided in a real estate investment
87-6 trust's declaration of trust, a proposed amendment to the real
87-7 estate investment trust's declaration of trust that would solely
87-8 effect changes in the designations, preferences, limitations, or
87-9 relative rights, including voting rights, of one or more series of
87-10 shares of the real estate investment trust that have been
87-11 established pursuant to the authority granted the trust manager(s)
87-12 in the declaration of trust in accordance with this Act does not
87-13 require the approval of the holders of the outstanding shares of
87-14 any class or series other than that series if the preferences,
87-15 limitations and relative rights of that series after giving effect
87-16 to the amendment and of any series that may be established as a
87-17 result of a reclassification of that series are, in each case,
87-18 within those permitted to be fixed and determined by the trust
87-19 manager(s) with respect to the establishment of any new series of
87-20 shares pursuant to the authority granted to the trust manager(s) in
87-21 the declaration of trust in accordance with this Act.
87-22 Sec. 22.40. ARTICLES OF AMENDMENT. (A) An officer shall
87-23 execute the articles of amendment on behalf of the real estate
87-24 investment trust. If no shares have been issued, and the articles
87-25 of amendment are adopted by the trust manager(s), a majority of the
87-26 trust manager(s) may execute the articles of amendment on behalf of
87-27 the real estate investment trust.
88-1 (B) The articles of amendment shall set forth:
88-2 (1) The name of the real estate investment trust.
88-3 (2) If the amendment alters any provision of the
88-4 original or amended declaration of trust, an identification by
88-5 reference or description of the altered provision and a statement
88-6 of its text as it is amended to read. If the amendment is an
88-7 addition to the original or amended declaration of trust, a
88-8 statement of that fact and the full text of each added provision.
88-9 (3) The date of the adoption of the amendment by the
88-10 shareholders, or by the trust manager(s), where no shares have been
88-11 issued.
88-12 (4) The number of shares outstanding, and the number
88-13 of shares entitled to vote on the amendment, and if the shares of
88-14 any class or series are entitled to vote on the amendment as a
88-15 class, the designation and number of outstanding shares entitled to
88-16 vote on the amendment of each such class or series.
88-17 (5) The number of shares voted for and against the
88-18 amendment, respectively, and, if the shares of any class are
88-19 entitled to vote on the amendment as a class or series, the number
88-20 of shares of each such class or series voted for and against the
88-21 amendment, respectively, or if no shares have been issued, a
88-22 statement to that effect.
88-23 (6) If the amendment provides for an exchange,
88-24 reclassification, or cancellation of issued shares, and if the
88-25 manner in which the exchange, reclassification, or cancellation of
88-26 issued shares shall be effected is not set forth in the amendment,
88-27 then a statement of the manner in which the exchange,
89-1 reclassification, or cancellation of the issued shares shall be
89-2 effected.
89-3 (7) If the amendment effects a change in the amount of
89-4 stated capital, then a statement of the manner in which the change
89-5 in the amount of stated capital is effected and a statement,
89-6 expressed in dollars, of the amount of stated capital as changed by
89-7 the amendment.
89-8 Sec. 22.50. FILING OF ARTICLES OF AMENDMENT. A copy of the
89-9 articles of amendment shall be filed with the county clerk of the
89-10 county of the principal place of business of the real estate
89-11 investment trust.
89-12 Sec. 22.60. EFFECT OF CERTIFICATE OF AMENDMENT. (A) On the
89-13 filing of the articles of amendment with the county clerk of the
89-14 county of the principal place of business of the real estate
89-15 investment trust, the amendment becomes effective and the
89-16 declaration of trust is considered to be amended accordingly.
89-17 (B) An amendment may not affect any existing cause of action
89-18 in favor of or against the real estate investment trust, or any
89-19 pending suit to which the real estate investment trust is a party,
89-20 or the existing rights of persons other than shareholders. If the
89-21 name of a real estate investment trust is changed by amendment, a
89-22 suit brought by or against the real estate investment trust under
89-23 its former name may not be abated for that reason.
89-24 Sec. 22.70. RESTATED DECLARATION OF TRUST. (A) A real
89-25 estate investment trust, by following the procedure to amend the
89-26 declaration of trust provided by this Act (except that no
89-27 shareholder approval shall be required where no amendment is made),
90-1 may authorize, execute, and file a restated declaration of trust
90-2 that may restate:
90-3 (1) the entire text of the declaration of trust as
90-4 amended or supplemented by all articles of amendment previously
90-5 filed with the county clerk of the county of the principal place of
90-6 business of the real estate investment trust; or
90-7 (2) the entire text of the declaration of trust as
90-8 amended or supplemented by all articles of amendment previously
90-9 filed with the county clerk of the county of the principal place of
90-10 business of the real estate investment trust, and as further
90-11 amended by the restated declaration of trust.
90-12 (B) If the restated declaration of trust restates the entire
90-13 declaration of trust, as amended and supplemented by all articles
90-14 of amendment previously filed with the county clerk of the county
90-15 of the principal place of business of the real estate investment
90-16 trust, without making any further amendment to the declaration of
90-17 trust, the introductory paragraph shall contain a statement that
90-18 the instrument accurately copies the declaration of trust and all
90-19 amendments to the declaration of trust that are in effect on that
90-20 date and that the instrument contains no change in any provision of
90-21 the declaration of trust. The number of trust manager(s) and the
90-22 names and addresses of the persons serving as trust manager(s) may
90-23 be inserted in lieu of similar information concerning the initial
90-24 trust manager(s).
90-25 (C) If the restated declaration of trust restates the entire
90-26 declaration of trust, as amended and supplemented by all articles
90-27 of amendment previously filed with the county clerk of the county
91-1 of the principal place of business of the real estate investment
91-2 trust, and as further amended by the restated declaration of trust,
91-3 the instrument containing the declaration of trust shall:
91-4 (1) Set forth, for any amendment made by the restated
91-5 declaration of trust, a statement that the amendment has been
91-6 effected in conformity with the provisions of this Act, and the
91-7 statements required by this Act to be contained in articles of
91-8 amendment.
91-9 (2) Contain a statement that the instrument accurately
91-10 copies the declaration of trust and all amendments to the
91-11 declaration of trust that are in effect on that date and as further
91-12 amended by the restated declaration of trust and that the
91-13 instrument contains no other change in any provision in the
91-14 declaration of trust; provided that the number of trust manager(s)
91-15 and the names and addresses of the persons serving as trust
91-16 manager(s) may be inserted in lieu of similar information
91-17 concerning the initial trust manager(s).
91-18 (3) Restate the text of the entire declaration of
91-19 trust as amended and supplemented by all articles of amendment
91-20 previously filed with the county clerk of the county of the
91-21 principal place of business of the real estate investment trust and
91-22 as further amended by the restated declaration of trust.
91-23 (D) An officer shall execute the restated declaration of
91-24 trust on behalf of the real estate investment trust. If no shares
91-25 have been issued and the restated declaration of trust is adopted
91-26 by the trust manager(s), a majority of the trust manager(s) may
91-27 execute the restated declaration of trust on behalf of the real
92-1 estate investment trust.
92-2 (E) On the filing of the copy of the restated declaration of
92-3 trust with the county clerk of the county of the principal place of
92-4 business of the real estate investment trust, the original
92-5 declaration of trust and all amendments to the original declaration
92-6 of trust shall be superseded and the restated declaration of trust
92-7 is considered to be the declaration of trust of the real estate
92-8 investment trust.
92-9 Sec. 23.10 <23.1>. MERGER. (A) A domestic real estate
92-10 investment trust may adopt a plan of merger and one or more
92-11 domestic real estate investment trusts may merge with one or more
92-12 domestic or foreign corporations, real estate investment trusts,
92-13 partnerships or other entities if:
92-14 (1) the trust manager(s) of each domestic real estate
92-15 investment trust that is a party to the plan of merger act on, and
92-16 its shareholders (if required by Section 23.30 of this Act)
92-17 approve, the plan of merger in the manner prescribed in Section
92-18 23.30 of this Act;
92-19 (2)(i) the merger is permitted by the laws of the
92-20 state or country under whose law each foreign corporation, if any,
92-21 that is a party to the merger is incorporated, (ii) the merger is
92-22 either permitted by the laws under which each other entity that is
92-23 a party to the merger is organized or by the constituent documents
92-24 of the other entity that are not inconsistent with those laws, and
92-25 (iii) each foreign corporation, real estate investment trust,
92-26 partnership or other entity that is a party to the merger complies
92-27 with those laws or documents in effecting the merger, if one or
93-1 more foreign corporations, real estate investment trusts,
93-2 partnerships or other entities is a party to the merger or is to be
93-3 created by the terms of the plan of merger; and
93-4 (3) no shareholder of a domestic real estate
93-5 investment trust that is a party to the merger will, as a result of
93-6 the merger, become personally liable, without the shareholder's
93-7 consent, for the liabilities or obligations of any other person or
93-8 entity.
93-9 (B) A plan of merger shall set forth:
93-10 (1) the name of each domestic or foreign corporation,
93-11 real estate investment trust, partnership or other entity that is a
93-12 party to the merger and the name of each domestic or foreign
93-13 corporation, real estate investment trust, partnership or other
93-14 entity, if any, that shall survive the merger, which may be one or
93-15 more of the domestic or foreign corporations, real estate
93-16 investment trusts, partnerships or other entities that are a party
93-17 to the merger, and the name of each new domestic or foreign
93-18 corporation, real estate investment trust, partnership or other
93-19 entity, if any, that may be created by the terms of the plan of
93-20 merger;
93-21 (2) the terms and conditions of the merger including
93-22 the following, if more than one domestic or foreign corporation,
93-23 real estate investment trust, partnership or other entity is to
93-24 survive or to be created by the terms of the plan of merger:
93-25 (a) the manner and basis of allocating and
93-26 vesting the real estate and other property of each domestic or
93-27 foreign real estate investment trust and of each other entity that
94-1 is a party to the merger among one or more of the surviving or new
94-2 domestic or foreign corporations, real estate investment trusts,
94-3 partnerships and other entities;
94-4 (b) the name of the surviving or new domestic or
94-5 foreign corporation, real estate investment trust, partnership or
94-6 other entity that is to be obligated for the payment of the fair
94-7 value of any shares held by a shareholder of any domestic real
94-8 estate investment trust that is a party to the merger who has
94-9 complied with the requirements of Section 25.20 of this Act; and
94-10 (c) the manner and basis of allocating all other
94-11 liabilities and obligations of each domestic or foreign
94-12 corporation, real estate investment trust, partnership and other
94-13 entity that is a party to the merger (or making adequate provision
94-14 for the payment and discharge thereof) among one or more of the
94-15 surviving or new domestic or foreign corporations, real estate
94-16 investment trusts, partnerships and other entities;
94-17 (3) the manner and basis of converting any of the
94-18 shares or other evidence of ownership of each domestic or foreign
94-19 corporation, real estate investment trust, partnership and other
94-20 entity that is a party to the merger into shares, obligations,
94-21 evidences of ownership, rights to purchase securities or other
94-22 securities of one or more of the surviving or new domestic or
94-23 foreign corporations, real estate investment trusts, partnerships
94-24 or other entities, into cash or other property, including shares,
94-25 obligations, evidences of ownership, rights to purchase securities
94-26 or other securities of any other person or entity, or into any
94-27 combination of the foregoing; and
95-1 (4) the declaration of trust, articles of
95-2 incorporation, partnership agreement, or other organizational
95-3 documents of each real estate investment trust, corporation,
95-4 partnership or other entity that is a party to the merger and that
95-5 is to survive the merger or is to be created by the terms of the
95-6 plan of merger.
95-7 (C) The plan of merger may set forth:
95-8 (1) any amendments to the organizational documents of
95-9 any surviving entity;
95-10 (2) provisions relating to a share exchange; and
95-11 (3) any other provisions relating to the merger.
95-12 (D) On the merger's taking effect, the surviving or new
95-13 foreign corporation, real estate investment trust, partnership or
95-14 other entity, if any, that is the sole surviving or new foreign
95-15 corporation, real estate investment trust, partnership or other
95-16 entity in the merger, or if more than one domestic or foreign
95-17 corporation, real estate investment trust, partnership or other
95-18 entity is to survive or to be created by the terms of the plan of
95-19 the merger, the surviving or new foreign corporation, real estate
95-20 investment trust, partnership or other entity that is designated in
95-21 the plan of merger to be the entity obligated for the payment of
95-22 the fair value of any shares held by a shareholder who has complied
95-23 with the requirements of Section 25.20 of this Act for the recovery
95-24 of the fair value of the shareholder's shares, is considered to:
95-25 (1) appoint the Secretary of State in this state as
95-26 its agent for service of process in a proceeding to enforce any
95-27 obligation or the rights of dissenting shareholders of each
96-1 domestic entity that is a party to the merger; and
96-2 (2) agree that it will promptly pay to the dissenting
96-3 shareholders of each domestic entity that is a party to the merger
96-4 the amount, if any, to which the dissenting shareholders are
96-5 entitled under Section 25.10 of this Act.
96-6 (E) This Section does not limit the power of a domestic or
96-7 foreign corporation, real estate investment trust, partnership or
96-8 other entity to acquire all or part of the shares of one or more
96-9 classes or series of a domestic real estate investment trust
96-10 through a voluntary exchange or otherwise.
96-11 (F) This Section does not limit the power of domestic or
96-12 foreign subsidiary entities to merge into a parent pursuant to
96-13 applicable law <Definitions. In this Section the following words
96-14 have the meanings indicated.>
96-15 <(1) "Business trust" means an unincorporated trust or
96-16 association, including a Texas real estate investment trust, a
96-17 common-law trust, or a Massachusetts trust, which is engaged in
96-18 business and in which property is acquired, held, managed,
96-19 administered, controlled, invested, or disposed of by trust
96-20 managers or trustees for the benefit and profit of any person who
96-21 may become a holder of a transferable unit of beneficial interest
96-22 in the trust.>
96-23 <(2) "Foreign business trust" means a business trust
96-24 organized under the laws of the United States, another state of the
96-25 United States, or a territory, possession, or district of the
96-26 United States.>
96-27 <(3) "Texas real estate investment trust" means a real
97-1 estate investment trust formed under the provisions of this Act.>
97-2 <(B) Merger authorized. Unless the declaration of trust
97-3 provides otherwise, a Texas real estate investment trust may merge
97-4 into a Texas or foreign business trust or into a Texas or foreign
97-5 corporation having capital stock, or one or more such business
97-6 trusts or such corporations may merge into it.>
97-7 <(C) Approval generally; exceptions. A merger shall be
97-8 approved in the manner provided by this Section, except that:>
97-9 <(1) A foreign business trust, a Texas business trust,
97-10 other than a Texas real estate investment trust, or a corporation
97-11 party to the merger shall have the merger advised, authorized, and
97-12 approved in the manner and by the vote required by its declaration
97-13 of trust or charter and the laws of the place where it is
97-14 organized; and>
97-15 <(2) A merger need be approved by a Texas real estate
97-16 investment trust successor only by a majority of its trust managers
97-17 if:>
97-18 <(a) The merger does not reclassify or change
97-19 its outstanding shares or otherwise amend its declaration of trust;
97-20 and>
97-21 <(b) The number of shares to be issued or
97-22 delivered in the merger is not more than fifteen per cent (15%) of
97-23 the number of its shares of the same class or series outstanding
97-24 immediately before the merger becomes effective.>
97-25 <(D) Trust managers' actions. The trust managers of each
97-26 Texas real estate investment trust proposing to merge shall:>
97-27 <(1) Adopt a resolution that declares the proposed
98-1 transaction is advisable on substantially the terms and conditions
98-2 set forth or referred to in the resolution; and>
98-3 <(2) Direct that the proposed transaction be submitted
98-4 for consideration at either an annual or special meeting of
98-5 shareholders.>
98-6 <(E) Notice to shareholders. Notice which states that a
98-7 purpose of a meeting will be to act upon the proposed merger shall
98-8 be given by each Texas real estate investment trust in the manner
98-9 provided for corporations by Article 5.03 of the Texas Business
98-10 Corporation Act to:>
98-11 <(1) Each of its shareholders entitled to vote on the
98-12 proposed transaction; and>
98-13 <(2) Each of its shareholders not entitled to vote on
98-14 the proposed transaction, except the shareholders of a successor in
98-15 a merger if the merger does not alter the contract rights of their
98-16 shares as expressly set forth in the declaration of trust.>
98-17 <(F) Shareholders' approval. The proposed merger shall be
98-18 approved by the shareholders of each Texas real estate investment
98-19 trust by the affirmative vote of two-thirds (2/3) of all the votes
98-20 entitled to be cast on the matter.>
98-21 <(G) Articles of merger. Articles of merger containing
98-22 provisions required by Article 5.04 of the Texas Business
98-23 Corporation Act and such other provisions as may be permitted by
98-24 that Article shall be:>
98-25 <(1) Executed for each party to the articles in the
98-26 manner required by this Section or by Part Five of the Texas
98-27 Business Corporation Act; and>
99-1 <(2) Filed for the record with the secretary of state
99-2 in the manner required by Part Five of the Texas Business
99-3 Corporation Act and filed with the county clerk in each county
99-4 where the principal place of business of a Texas real estate
99-5 investment trust which is a party to the merger is located.>
99-6 <(H) Abandonment of proposed merger. (1) A proposed merger
99-7 may be abandoned before the effective date of the articles:>
99-8 <(a) If the articles so provide, by majority
99-9 vote of the trust manager(s) of any one business trust party to the
99-10 articles or of the entire board of directors of any one corporation
99-11 party to the articles; or>
99-12 <(b) Unless the articles provide otherwise, by
99-13 majority vote of the trust manager(s) of each Texas real estate
99-14 investment trust party to the articles.>
99-15 <(2) If the articles have been filed with the county
99-16 clerk and the secretary of state, notice of the abandonment shall
99-17 be given promptly to such parties.>
99-18 <(3)(a) If the proposed merger is abandoned as
99-19 provided in this subdivision, no legal liability arises under the
99-20 articles.>
99-21 <(b) An abandonment does not prejudice the
99-22 rights of any person under any other contract made by a business
99-23 trust or a corporation party to the proposed articles in connection
99-24 with the proposed merger.>
99-25 <(I) Dissenting shareholders. Each shareholder of a Texas
99-26 real estate investment trust dissenting to a merger of the Texas
99-27 real estate investment trust shall have the same rights as a
100-1 dissenting shareholder of a Texas corporation under Part Five of
100-2 the Texas Business Corporation Act and under the same procedures.>
100-3 <(J) Certificates of merger. (1) The secretary of state
100-4 shall prepare certificates of merger which specify:>
100-5 <(a) The name of each party to the articles;>
100-6 <(b) The name of the successor and the location
100-7 of its principal office in this state or, if it has none, its
100-8 principal place of business; and>
100-9 <(c) The time the articles are accepted for
100-10 record by the secretary of state.>
100-11 <(2) In addition to any other provision of law with
100-12 respect to recording, the secretary of state shall send one of the
100-13 certificates to the successor entity in the merger, and such
100-14 successor shall send a copy of the certificate to the county clerk
100-15 in each county where the principal place of business of a Texas
100-16 real estate investment trust which was a party to the merger is
100-17 located.>
100-18 <(3) On receipt of the certificate, each such county
100-19 clerk promptly shall record it with the declaration of trust to
100-20 which such articles of merger relate.>
100-21 <(k) Time merger effective. (1) Texas real estate
100-22 investment trust successor. If the successor in a merger is a
100-23 Texas real estate investment trust, a merger is effective as of the
100-24 time the secretary of state accepts the articles of merger for
100-25 record.>
100-26 <(2) Successor other than Texas real estate investment
100-27 trust. (a) If the successor in a merger is a Texas or foreign
101-1 corporation or a Texas or foreign business trust, other than a
101-2 Texas real estate investment trust, the merger is effective as of
101-3 the later of:>
101-4 <(i) The time specified by the law of the
101-5 place where the successor is organized; or>
101-6 <(ii) The time the secretary of state
101-7 accepts the articles of merger for record.>
101-8 <(b) A foreign successor in a merger shall file
101-9 for record with the secretary of state a certificate from the place
101-10 where it is organized which certifies the date the articles of
101-11 merger were filed. However, the failure to file this certificate
101-12 does not invalidate the merger.>
101-13 <(L) Effect of merger. (1) Consummation of a merger has
101-14 the effects provided in this Subsection.>
101-15 <(2) The separate existence of each business trust and
101-16 corporation party to the articles, except the successor, ceases.>
101-17 <(3) The shares of each business trust party to the
101-18 articles which are to be converted or exchanged under the terms of
101-19 the articles cease to exist, subject to the rights of a dissenting
101-20 shareholder under Subsection (I) of this Section.>
101-21 <(4) In addition to any other purposes and powers set
101-22 forth in the articles, if the articles provide, the successor has
101-23 the purposes and powers of each party to the articles.>
101-24 <(5)(a) The assets of each party to the articles,
101-25 including any legacies which it would have been capable of taking,
101-26 transfer to, vest in, and devolve on the successor without further
101-27 act or deed.>
102-1 <(b) Confirmatory deeds, assignments, or similar
102-2 instruments to evidence the transfer may be executed and delivered
102-3 at any time in the name of the transferring party to the articles
102-4 by its last acting officers or trustees or by the appropriate
102-5 officers or trustees of the successor.>
102-6 <(6)(a) The successor is liable for all the debts and
102-7 obligations of each nonsurviving party to the articles. An
102-8 existing claim, action, or proceeding pending by or against any
102-9 nonsurviving party to the articles may be prosecuted to judgment as
102-10 if the merger had not taken place, or, on motion of the successor
102-11 or any party, the successor may be substituted as a party and the
102-12 judgment against the nonsurviving party to the articles constitutes
102-13 a lien on the property of the successor.>
102-14 <(b) A merger does not impair the rights of
102-15 creditors or any liens on the property of any business trust or
102-16 corporation party to the articles>.
102-17 Sec. 23.20. SHARE EXCHANGE OR ACQUISITION. (A) One or more
102-18 domestic or foreign corporations, real estate investment trusts,
102-19 partnerships or other entities may acquire all of the outstanding
102-20 shares of one or more classes or series of one or more domestic
102-21 real estate investment trusts if:
102-22 (1) the trust manager(s) of each domestic real estate
102-23 investment trust that is a party to the plan of exchange acts on a
102-24 plan of exchange in the manner prescribed by Section 23.30 of this
102-25 Act and its shareholders (if required by Section 23.30 of this Act)
102-26 approve the plan of exchange;
102-27 (2) the issuance of shares or interests issued as part
103-1 of the plan of exchange is either permitted by the laws under which
103-2 the foreign corporations, real estate investment trusts,
103-3 partnerships or other entities are incorporated or organized or not
103-4 inconsistent with those laws, if one or more foreign corporations,
103-5 real estate investment trusts, partnerships or other entities are
103-6 to issue shares or other interests as part of the plan of exchange;
103-7 and
103-8 (3) each acquiring domestic or foreign corporation,
103-9 real estate investment trust, partnership or other entity takes all
103-10 action that may be required by the laws of the state or country
103-11 under which the entity was incorporated or organized and by its
103-12 constituent documents to effect the exchange.
103-13 (B) A plan of exchange must set forth:
103-14 (1) the name of the real estate investment trust or
103-15 trusts whose shares will be acquired and the name of each acquiring
103-16 domestic or foreign corporation, real estate investment trust,
103-17 partnership or other entity;
103-18 (2) the terms and conditions of the exchange
103-19 including, if there is more than one acquiring domestic or foreign
103-20 corporation, real estate investment trust, partnership or other
103-21 entity, the shares to be acquired by each such entity; and
103-22 (3) the manner and basis of exchanging the shares to
103-23 be acquired for shares, obligations, evidences of ownership, rights
103-24 to purchase securities or other securities of one or more of the
103-25 acquiring domestic or foreign corporations, real estate investment
103-26 trusts, partnerships or other entities that are parties to the plan
103-27 of exchange, or for cash or other property, including shares,
104-1 obligations, evidences of ownership, rights to purchase securities
104-2 or other securities of any other person or entity, or for any
104-3 combination of the foregoing.
104-4 (C) The plan of exchange may set forth any other provisions
104-5 relating to the exchange and may be contained in and be a part of a
104-6 plan of merger.
104-7 (D) A plan of exchange may not be effected if any
104-8 shareholder of a domestic real estate investment trust that is a
104-9 party to the share exchange will, as a result of the share
104-10 exchange, become personally liable, without the shareholder's
104-11 consent, for the liabilities or obligations of any other person or
104-12 entity.
104-13 (E) This Section does not limit the power of a domestic or
104-14 foreign corporation, real estate investment trust, partnership or
104-15 other entity to acquire all or part of the shares of one or more
104-16 classes or series of a domestic real estate investment trust
104-17 through a voluntary exchange or otherwise.
104-18 Sec. 23.30. ACTION ON PLAN OF MERGER OR EXCHANGE. (A)
104-19 Except as provided by Subsection (G) of this Section, after acting
104-20 on a plan of merger or exchange in the manner prescribed by
104-21 Subdivision (1) of Subsection (B) of this Section, the trust
104-22 manager(s) of each domestic real estate investment trust that is a
104-23 party to the merger, and the trust manager(s) of each domestic real
104-24 estate investment trust whose shares are to be acquired in the
104-25 share exchange, shall submit the plan of merger or exchange for
104-26 approval by its shareholders.
104-27 (B) Except as provided by Subsection (G) of this Section,
105-1 for a plan of merger or exchange to be approved:
105-2 (1) the trust manager(s) of the real estate investment
105-3 trust may adopt a resolution recommending that the plan of merger
105-4 or exchange be approved by the shareholders of the real estate
105-5 investment trust, unless the trust manager(s) determines that for
105-6 any reason the trust manager(s) should not make that
105-7 recommendation, in which case the trust manager(s) may adopt a
105-8 resolution directing that the plan of merger or exchange be
105-9 submitted to shareholders for approval without recommendation and,
105-10 in connection with the submission, communicate the basis for the
105-11 trust manager's determination that the plan be submitted to
105-12 shareholders without any recommendation; and
105-13 (2) the shareholders entitled to vote on the plan of
105-14 merger or exchange must approve the plan.
105-15 (C) The trust manager(s) may condition the trust manager's
105-16 submission to shareholders of a plan of merger or exchange on any
105-17 basis.
105-18 (D) The real estate investment trust shall notify each
105-19 shareholder, whether or not the shareholder is entitled to vote, of
105-20 the meeting of shareholders at which the plan of merger or exchange
105-21 is to be submitted for approval in accordance with Section 11.10 of
105-22 this Act. The notice shall be given at least 20 days before the
105-23 meeting and shall state that the purpose, or one of the purposes,
105-24 of the meeting is to consider the plan of merger or exchange and
105-25 shall contain or be accompanied by a copy or summary of the plan.
105-26 (E) Unless the trust manager(s) (acting pursuant to
105-27 Subsection (C) of this Section) requires a greater vote or a vote
106-1 by class or series, the vote of shareholders required for approval
106-2 of a plan of merger or exchange shall be the affirmative vote of
106-3 the holders of at least two-thirds (2/3) of the outstanding shares
106-4 of each real estate investment trust entitled to vote on the plan
106-5 of merger or exchange, unless any class or series of shares of any
106-6 such real estate investment trust is entitled to vote as a class on
106-7 the plan of merger or exchange, in which event the vote required
106-8 for approval by the shareholders of the real estate investment
106-9 trust shall be the affirmative vote of the holders of at least
106-10 two-thirds (2/3) of the outstanding shares otherwise entitled to
106-11 vote on the plan of merger or exchange as a class and at least
106-12 two-thirds (2/3) of the outstanding shares otherwise entitled to
106-13 vote on the plan of merger or exchange. Shares entitled to vote as
106-14 a class shall be entitled to vote only as a class unless otherwise
106-15 entitled to vote on each matter submitted to the shareholders
106-16 generally or as provided in the declaration of trust.
106-17 (F) Separate voting by a class or series of shares of a
106-18 declaration of trust shall be required:
106-19 (1) for approval of a plan of merger if:
106-20 (a) the plan contains a provision that if
106-21 contained in a proposed amendment to the declaration of trust would
106-22 require approval by that class or series of shares under Section
106-23 22.30 of this Act; or
106-24 (b) that class or series of shares is entitled
106-25 under the declaration of trust to vote as a class on the plan of
106-26 merger or exchange; and
106-27 (2) on a plan of exchange if:
107-1 (a) shares of that class or series are to be
107-2 exchanged pursuant to the terms of the plan, or
107-3 (b) that class or series is entitled under the
107-4 declaration of trust to vote as a class on the plan of merger or
107-5 exchange.
107-6 (G) Unless the declaration of trust otherwise requires,
107-7 approval by the shareholders of a real estate investment trust on a
107-8 plan of merger is not required and Subsections (A) through (F) of
107-9 this Section do not apply if:
107-10 (1) the real estate investment trust is the sole
107-11 surviving real estate investment trust in the merger;
107-12 (2) the declaration of trust of the real estate
107-13 investment trust will not differ from its declaration of trust
107-14 before the merger;
107-15 (3) each shareholder of the real estate investment
107-16 trust whose shares were outstanding immediately before the
107-17 effective date of the merger will hold the same number of shares,
107-18 with identical designations, preferences, limitations, and relative
107-19 rights, immediately after the effective date of the merger;
107-20 (4) the voting power of the number of voting shares
107-21 outstanding immediately after the merger, plus the voting power of
107-22 the number of voting shares issuable as a result of the merger
107-23 (either by the conversion of securities issued pursuant to the
107-24 merger or the exercise of rights to purchase securities issued
107-25 pursuant to the merger), will not exceed by more than 20 percent
107-26 the voting power of the total number of voting shares of the real
107-27 estate investment trust outstanding immediately before the merger;
108-1 (5) the number of participating shares outstanding
108-2 immediately after the merger, plus the number of participating
108-3 shares issuable as a result of the merger (either by the conversion
108-4 of securities issued pursuant to the merger or the exercise of
108-5 rights to purchase securities issued pursuant to the merger), will
108-6 not exceed by more than 20 percent the total number of
108-7 participating shares of the real estate investment trust
108-8 outstanding immediately before the merger; and
108-9 (6) the trust manager(s) of the real estate investment
108-10 trust adopt a resolution approving the plan of merger.
108-11 (H) In this Section:
108-12 (1) "Participating shares" means shares that entitle
108-13 the holders of the shares to participate in distributions without
108-14 limitation.
108-15 (2) "Voting shares" means shares that entitle the
108-16 holders of the shares to vote unconditionally in elections of trust
108-17 manager(s).
108-18 (I) After a merger or share exchange is approved, and at any
108-19 time before the merger or share exchange has become effective, the
108-20 plan of merger or share exchange may be abandoned (subject to any
108-21 contractual rights) by any of the real estate investment trusts
108-22 that are a party to the merger, without shareholder action, in
108-23 accordance with the procedures set forth in the plan of merger or
108-24 exchange, or, if no such procedures are set forth in the plan, in
108-25 the manner determined by the trust manager(s). If articles of
108-26 merger or exchange have been filed with the Secretary of State but
108-27 the merger or share exchange has not become effective, the merger
109-1 or share exchange may be abandoned as provided in this Subsection
109-2 if a statement, executed on behalf of each domestic and foreign
109-3 entity that is a party to the merger or share exchange by an
109-4 officer or other duly authorized representative of the domestic or
109-5 foreign entity, and stating that the plan of merger or exchange has
109-6 been abandoned in accordance with the plan and this Subsection, is
109-7 filed with the Secretary of State before the merger or share
109-8 exchange takes effect. If the Secretary of State finds that the
109-9 statement conforms to law, the Secretary of State, when all fees
109-10 have been paid as required by law, shall:
109-11 (1) Endorse on the original and each copy the word
109-12 "Filed" and the month, day, and year of the filing of the statement
109-13 thereof.
109-14 (2) File the original in the office of the Secretary
109-15 of State.
109-16 (3) Issue a certificate of abandonment to each
109-17 domestic or foreign entity that is a party to the plan of merger or
109-18 exchange.
109-19 (J) On the filing by the Secretary of State of the statement
109-20 described by Subsection (I) of this Section, the merger or share
109-21 exchange is considered abandoned and may not take effect.
109-22 Sec. 23.40. ARTICLES OF MERGER OR EXCHANGE. (A) If a plan
109-23 of merger or exchange has been approved in accordance with Section
109-24 23.30 of this Act and has not been abandoned, or approved by the
109-25 trust manager(s) if shareholder approval is not required under that
109-26 Section, articles of merger or exchange shall be executed on behalf
109-27 of each domestic or foreign corporation, real estate investment
110-1 trust, partnership or other entity that is a party to the plan of
110-2 merger or exchange by an officer or other duly authorized
110-3 representative of that entity and shall set forth:
110-4 (1) The plan of merger or exchange or statement
110-5 certifying the following:
110-6 (a) the name and state of incorporation or
110-7 organization of each domestic or foreign corporation, real estate
110-8 investment trust, partnership or other entity that is a party to
110-9 the plan of merger or exchange or that is to be created by the plan
110-10 of merger or exchange;
110-11 (b) that a plan of merger or exchange has been
110-12 approved;
110-13 (c) in the case of a merger, the amendments or
110-14 changes in the declaration of trust of each domestic surviving real
110-15 estate investment trust, or if no amendments are to be effected by
110-16 the merger, a statement to that effect;
110-17 (d) the declaration of trust of each new
110-18 domestic real estate investment trust to be created pursuant to the
110-19 terms of the plan of merger;
110-20 (e) that an executed plan of merger or exchange
110-21 is on file at the principal place of business of each surviving,
110-22 acquiring, or new domestic or foreign corporation, real estate
110-23 investment trust, partnership or other entity, stating the address
110-24 of that entity; and
110-25 (f) that a copy of the plan of merger or
110-26 exchange will be furnished by each surviving, acquiring, or new
110-27 domestic or foreign corporation, real estate investment trust,
111-1 partnership or other entity, on written request and without cost,
111-2 to any shareholder, creditor or other obligee of each domestic real
111-3 estate investment trust that is a party to or created by the plan
111-4 of merger or exchange.
111-5 (2) If shareholder approval is not required by Section
111-6 23.30 of this Act, a statement to that effect.
111-7 (3) For each real estate investment trust the approval
111-8 of whose shareholders is required, the number of shares
111-9 outstanding, and, if the shares of any class or series are entitled
111-10 to vote as a class, the designation and number of outstanding
111-11 shares of each such class or series.
111-12 (4) For each real estate investment trust the approval
111-13 of whose shareholders is required, the number of shares not
111-14 entitled to vote only as a class, voted for and against the plan,
111-15 respectively, and, if the shares of any class or series are
111-16 entitled to vote as a class, the number of shares of each such
111-17 class or series voted for and against the plan, respectively.
111-18 (5) For each acquiring domestic or foreign
111-19 corporation, real estate investment trust, partnership or other
111-20 entity in a plan of exchange, a statement that the plan and
111-21 performance of its terms were duly authorized by all action
111-22 required by the laws under which it was incorporated or organized
111-23 and by its constituent documents.
111-24 (6) For each foreign corporation, or other entity that
111-25 is a party to the plan of merger, a statement that the approval of
111-26 the plan of merger was duly authorized by all action required by
111-27 the laws under which it was incorporated or organized and by its
112-1 constituent documents.
112-2 (B) The original of the articles of merger or exchange, and
112-3 the number of copies of the articles that is equal to the number of
112-4 surviving, new, and acquiring domestic or foreign corporations,
112-5 real estate investment trusts, partnerships and other entities that
112-6 are parties to the plan of merger or exchange or that will be
112-7 created by the terms of the plan of merger or exchange thereof,
112-8 shall be delivered to the Secretary of State.
112-9 (C) If the Secretary of State finds that the articles of
112-10 merger or exchange conform to law, and when all fees and franchise
112-11 taxes, if any, have been paid as required by law or if the plan of
112-12 merger or exchange (or statement provided) provides that one or
112-13 more of the surviving, new or acquiring domestic or foreign
112-14 corporations, real estate investment trusts, partnerships or other
112-15 entities will be responsible for the payment of all fees and
112-16 franchise taxes, if any, and that all surviving, new or acquiring
112-17 domestic or foreign corporations, real estate investment trusts,
112-18 partnerships and other entities will be obligated to pay fees and
112-19 franchise taxes, if any, if the fees and franchise taxes are not
112-20 timely paid, the Secretary of State shall:
112-21 (1) Endorse on the original and each copy the word
112-22 "Filed," and the month, day, and year of the filing of articles of
112-23 merger or exchange.
112-24 (2) File the original in the office of the Secretary
112-25 of State.
112-26 (3) Issue a certificate of merger or exchange,
112-27 together with a copy of the articles attached to the certificate,
113-1 to each surviving, new, and acquiring domestic or foreign
113-2 corporation, real estate investment trust, partnership or other
113-3 entity that is a party to the plan of merger or exchange or that is
113-4 created by the plan of merger or exchange, or its or their
113-5 respective representatives.
113-6 (D) A copy of the certificate of merger or exchange, with a
113-7 copy of the articles attached to the copy of the certificate of
113-8 merger or exchange, shall be filed with the county clerk in each
113-9 county where the principal place of business of a Texas real estate
113-10 investment trust that is a party to the merger or exchange is
113-11 located.
113-12 Sec. 23.50. EFFECTIVE DATE OF MERGER OR SHARE EXCHANGE.
113-13 Except as otherwise provided by Section 27.10 of this Act, the
113-14 merger or share exchange is effective on the issuance of the
113-15 certificate of merger or exchange by the Secretary of State.
113-16 Sec. 23.60. EFFECT OF MERGER OR SHARE EXCHANGE. (A) When a
113-17 merger under Section 23.10 or 23.20 of this Act takes effect:
113-18 (1) the separate existence of every domestic real
113-19 estate investment trust that is a party to the merger, except any
113-20 surviving or new domestic real estate investment trust, ceases;
113-21 (2) all rights, title, and interest to all real estate
113-22 and other property owned by each domestic or foreign corporation,
113-23 real estate investment trust, partnership or other entity that is a
113-24 party to the merger shall be allocated to and vested in one or more
113-25 of the surviving or new domestic or foreign corporations, real
113-26 estate investment trusts, partnerships and other entities as
113-27 provided in the plan of merger without reversion or impairment,
114-1 without further act or deed, and without any transfer or assignment
114-2 having occurred, but subject to any existing liens or other
114-3 encumbrances on the real estate and property;
114-4 (3) all liabilities and obligations of each domestic
114-5 or foreign corporation, real estate investment trust, partnership
114-6 and other entity that is a party to the merger shall be allocated
114-7 to one or more of the surviving or new domestic or foreign
114-8 corporations, real estate investment trusts, partnerships or other
114-9 entities in the manner set forth in the plan of merger, and each
114-10 surviving or new domestic or foreign corporation, real estate
114-11 investment trust, partnership or other entity to which a liability
114-12 or obligation shall have been allocated pursuant to the plan of
114-13 merger shall be the primary obligor for the liability or obligation
114-14 and, except as otherwise set forth in the plan of merger or as
114-15 provided by law or contract, no other party to the merger, other
114-16 than a surviving domestic or foreign corporation, real estate
114-17 investment trust, partnership or other entity created thereby,
114-18 shall be liable for the liability or obligation;
114-19 (4) a proceeding pending by or against any domestic or
114-20 foreign corporation, real estate investment trust, partnership or
114-21 other entity that is a party to the merger may be continued as if
114-22 the merger did not occur, or the surviving or new entity or
114-23 entities to which the liability, obligation, asset or right
114-24 associated with such proceeding is allocated to and vested in
114-25 pursuant to the plan of merger, may be substituted in the
114-26 proceeding;
114-27 (5) the declaration of trust of each surviving real
115-1 estate investment trust shall be amended to the extent provided in
115-2 the plan of merger;
115-3 (6) each new domestic real estate investment trust
115-4 that has a declaration of trust set forth in the plan of merger
115-5 pursuant to Section 23.10 of this Act shall be formed as a real
115-6 estate investment trust under this Act; and each other entity to be
115-7 incorporated or organized under the laws of this State that has
115-8 organizational documents set forth in the plan of merger, on an
115-9 executed copy of the articles of merger being delivered to or filed
115-10 with any required governmental entity with which organizational
115-11 documents of such other entity are required to be delivered or
115-12 filed, and on meeting such additional requirements, if any, of law
115-13 for its incorporation or organization, shall be incorporated or
115-14 organized as provided in the plan of merger; and
115-15 (7) the shares of each domestic or foreign real estate
115-16 investment trust and the shares or evidences of ownership in each
115-17 other entity that is a party to the merger that are to be converted
115-18 or exchanged, in whole or part, into shares, obligations, evidences
115-19 of ownership, rights to purchase securities or other securities of
115-20 one or more of the surviving or new domestic or foreign
115-21 corporations, real estate investment trusts, partnerships or other
115-22 entities, into cash or other property, including shares,
115-23 obligations, evidences of ownership, rights to purchase securities
115-24 or other securities of any other person or entity, or into any
115-25 combination of the foregoing, shall be so converted and exchanged
115-26 and the former holders of the shares of each domestic real estate
115-27 investment trust that is a party to the merger shall be entitled
116-1 only to the rights provided in the articles of merger or to their
116-2 rights of dissent under Section 25.10 of this Act.
116-3 (B) When a share exchange takes effect, the shares of each
116-4 acquired real estate investment trust are considered to have been
116-5 exchanged as provided in the plan of exchange, and the former
116-6 holders of the shares exchanged pursuant to the plan of exchange
116-7 shall be entitled only to the exchange rights provided in the
116-8 articles of exchange or to their rights of dissent under Section
116-9 25.10 of this Act. When a share exchange takes effect, the
116-10 acquiring domestic or foreign entity or entities of the shares to
116-11 be acquired and exchanged in the share exchange shall be entitled
116-12 to all rights, title, and interests with respect to the shares so
116-13 acquired and exchanged subject to the provisions in the articles of
116-14 exchange.
116-15 (C) If the plan of merger fails to provide for the
116-16 allocation and vesting of the right, title, and interest in any
116-17 particular item of real estate or other property or for the
116-18 allocation of any liability or obligation of any party to the
116-19 merger, that item of real estate or other property shall be owned
116-20 in undivided interest by, or such liability or obligation shall be
116-21 the joint and several liability and obligation of, each of the
116-22 surviving and new domestic and foreign corporations, real estate
116-23 investment trusts, partnerships and other entities, pro rata to the
116-24 total number of surviving and new domestic and foreign
116-25 corporations, real estate investment trusts, partnerships and other
116-26 entities resulting from the merger.
116-27 Sec. 24.10. DISPOSITION OF ASSETS AUTHORIZED BY TRUST
117-1 MANAGERS. (A) Except as otherwise provided in the declaration of
117-2 trust and except as provided in the next sentence of this
117-3 Subsection, the sale, lease, exchange, or other disposition of all,
117-4 or substantially all, of the property and assets of a real estate
117-5 investment trust, when made in the usual and regular course of the
117-6 business of the real estate investment trust, may be made on the
117-7 terms and conditions and for the consideration that may consist in
117-8 whole or in part of money or real or personal property, including
117-9 shares of any real estate investment trust or domestic or foreign
117-10 corporation, as authorized by its trust manager(s) without
117-11 authorization or consent of the shareholders. Except as otherwise
117-12 provided in the declaration of trust, the trust manager(s) may
117-13 authorize any pledge, mortgage, deed of trust, or trust indenture,
117-14 and no authorization or consent of the shareholders shall be
117-15 required for the validity of or for any sale pursuant to the terms
117-16 of the pledge, mortgage, deed of trust, or trust indenture.
117-17 (B) A transaction referred to in this Section of this Act is
117-18 in the usual and regular course of business if the real estate
117-19 investment trust, directly or indirectly, continues to engage in
117-20 one or more businesses or applies a portion of the consideration
117-21 received in connection with the transaction to the conduct of a
117-22 business in which it engages following the transaction.
117-23 (C) When authorized by appropriate resolution of the trust
117-24 manager(s), any real estate investment trust may convey land by
117-25 deed, with or without the seal, if any, of the real estate
117-26 investment trust, signed by an officer or attorney in fact of the
117-27 real estate investment trust. The deed, when acknowledged by the
118-1 officer or attorney in fact to be the act of the real estate
118-2 investment trust, or proved in the manner prescribed for other
118-3 conveyances of lands, may be recorded in the same manner and with
118-4 the same effect as other deeds. The deed when recorded, if signed
118-5 by an officer of the real estate investment trust, constitutes
118-6 prima facie evidence that the resolution of the trust manager(s)
118-7 was duly adopted.
118-8 Sec. 24.20. DISPOSITION OF ASSETS REQUIRING SPECIAL
118-9 AUTHORIZATION OF SHAREHOLDERS; EFFECT OF DISPOSITION REQUIRING OR
118-10 NOT REQUIRING AUTHORIZATION; LIABILITY OF ACQUIRING ENTITY. (A) A
118-11 sale, lease, exchange, or other disposition (not including any
118-12 pledge, mortgage, deed of trust or trust indenture unless otherwise
118-13 provided in the declaration of trust) of all, or substantially all,
118-14 the property and assets, with or without the good will, of a real
118-15 estate investment trust, if not made in the usual and regular
118-16 course of its business, may be made on the terms and conditions and
118-17 for the consideration that may consist in whole or in part of money
118-18 or real or personal property, including shares of any real estate
118-19 investment trust or domestic or foreign corporation, as may be
118-20 authorized in the following manner:
118-21 (1) The trust manager(s) may adopt a resolution
118-22 recommending that the sale, lease, exchange, or other disposition
118-23 of the property and assets of a real estate investment trust be
118-24 approved by shareholders of the real estate investment trust,
118-25 unless the trust manager(s) determine that for any reason they
118-26 should not make the recommendation in which case the trust
118-27 manager(s) may adopt a resolution directing that the sale, lease,
119-1 exchange, or other disposition be submitted to shareholders without
119-2 approval and, in connection with the submission, communicate the
119-3 basis for its determination that the sale, lease, exchange or other
119-4 disposition be submitted without shareholder approval.
119-5 (2) The trust manager(s) may submit the proposed sale,
119-6 lease, exchange, or other disposition for authorization by the real
119-7 estate investment trust's shareholders at an annual or special
119-8 meeting of shareholders.
119-9 (3) Written or printed notice shall be given to each
119-10 shareholder of record entitled to vote at the meeting within the
119-11 time and in the manner provided for in this Act for giving notice
119-12 of meetings to shareholders. The notice must state that the
119-13 purpose, or one of the purposes, of the meeting is to consider the
119-14 proposed sale, lease, exchange, or other disposition of the assets
119-15 or property of the real estate investment trust.
119-16 (4) At the meeting, the shareholders may authorize the
119-17 sale, lease, exchange or other disposition of the assets and
119-18 property and may fix, or may authorize the trust manager(s) to fix,
119-19 any or all of the terms and conditions of the disposition and the
119-20 consideration to be received by the real estate investment trust
119-21 for the disposition. The authorization shall require the
119-22 affirmative vote of the holders of at least two-thirds (2/3) of the
119-23 outstanding shares of the real estate investment trust entitled to
119-24 vote on the authorization, unless any class or series of shares of
119-25 the real estate investment trust is entitled to vote as a class on
119-26 the authorization, in which case the vote required for
119-27 authorization by the shareholders shall be the affirmative vote of
120-1 the holders of at least two-thirds (2/3) of the outstanding shares
120-2 within each such class or series entitled to vote on the
120-3 authorization as a class and at least two-thirds (2/3) of the
120-4 outstanding shares otherwise entitled to vote on the authorization.
120-5 Shares entitled to vote as a class shall be entitled to vote only
120-6 as a class unless otherwise entitled to vote on each matter
120-7 submitted to the shareholders generally or provided in the
120-8 declaration of trust.
120-9 (5) After the authorization for the disposition of the
120-10 assets and property by vote of shareholders, the trust manager(s),
120-11 nevertheless, in their discretion, may abandon the sale, lease,
120-12 exchange or other disposition of assets, subject to the rights of
120-13 third parties under any contracts relating to the assets, without
120-14 further action or approval by shareholders.
120-15 (B) A disposition of any, all, or substantially all, of the
120-16 property and assets of a real estate investment trust, whether or
120-17 not it requires the special authorization of the shareholders of
120-18 the real estate investment trust, effected under Subsection (A) of
120-19 this Section or under Section 23.60 of this Act or otherwise:
120-20 (1) is not considered to be a merger pursuant to this
120-21 Act or otherwise; and
120-22 (2) except as otherwise expressly provided by another
120-23 statute, does not make the acquiring real estate investment trust,
120-24 corporation, partnership, or other entity responsible or liable for
120-25 any liability or obligation of the selling real estate investment
120-26 trust that the acquiring entity did not expressly assume.
120-27 Sec. 25.10. RIGHTS OF DISSENTING SHAREHOLDERS IN THE EVENT
121-1 OF CERTAIN ACTIONS. (A) Any shareholder of a domestic real estate
121-2 investment trust may dissent from any of the following actions:
121-3 (1) any plan of merger to which the real estate
121-4 investment trust is a party if shareholder approval is required by
121-5 Section 23.30 of this Act and the shareholder holds shares of a
121-6 class or series that was entitled to vote on the plan of merger as
121-7 a class or otherwise;
121-8 (2) any sale, lease, exchange or other disposition
121-9 (not including any pledge, mortgage, deed of trust, or trust
121-10 indenture unless otherwise provided in the declaration of trust) of
121-11 all, or substantially all, of the property and assets, with or
121-12 without good will, of a real estate investment trust requiring the
121-13 special authorization of the shareholders as provided by this Act;
121-14 or
121-15 (3) any plan of exchange pursuant to Section 23.20 of
121-16 this Act in which the shares of the real estate investment trust of
121-17 the class or series held by the shareholder are to be acquired.
121-18 (B) Notwithstanding Subsection (A) of this Section, a
121-19 shareholder may not dissent from any plan of merger in which there
121-20 is a single surviving or new domestic or foreign corporation, real
121-21 estate investment trust, partnership, or other entity, or from any
121-22 plan of exchange, if:
121-23 (1) the shares held by the shareholder are part of a
121-24 class or series, and on the record date fixed to determine the
121-25 shareholders entitled to vote on the plan of merger or plan of
121-26 exchange, the shares are:
121-27 (a) listed on a national securities exchange,
122-1 (b) designated as a national market security on an interdealer
122-2 quotation system by the National Association of Securities Dealers,
122-3 Inc., or successor entity, or (c) held of record by not less than
122-4 2,000 holders; and
122-5 (2) the shareholder is not required by the terms of
122-6 the plan of merger or the plan of exchange to accept any
122-7 consideration for the shareholder's shares other than:
122-8 (a) shares of a domestic or foreign entity that,
122-9 immediately after the effective date of the merger or exchange,
122-10 will be part of a class or series, shares of which are (i) listed,
122-11 or authorized for listing upon official notice of issuance, on a
122-12 national securities exchange, (ii) approved for quotation as a
122-13 national market security on an interdealer quotation system by the
122-14 National Association of Securities Dealers, Inc., or successor
122-15 entity, or (iii) held of record by not less than 2,000 holders;
122-16 (b) cash in lieu of fractional shares otherwise
122-17 entitled to be received; or
122-18 (c) any combination of the securities and cash
122-19 described in this Subdivision.
122-20 Sec. 25.20. PROCEDURE FOR DISSENT BY SHAREHOLDERS AS TO
122-21 ACTIONS. (A) Any shareholder of any domestic real estate
122-22 investment trust who has the right to dissent from any of the
122-23 actions referred to in Section 25.10 of this Act may exercise that
122-24 right to dissent only by complying with the following procedures:
122-25 (1)(a) With respect to a proposed action that is
122-26 submitted to a vote of shareholders at a meeting, the shareholder
122-27 shall file with the real estate investment trust, before the
123-1 meeting, a written objection to the action. The shareholder's
123-2 objection must state that the shareholder will exercise the
123-3 shareholder's right to dissent if the action is effective and must
123-4 contain the shareholder's address, to which notice of the action
123-5 shall be delivered or mailed in that event. If the action is
123-6 effected and the shareholder did not vote in favor of the action,
123-7 the real estate investment trust, in the case of action other than
123-8 a merger, or the surviving or new entity that is liable in the case
123-9 of a merger to discharge the shareholder's right of dissent, shall
123-10 deliver or mail to the shareholder written notice that the action
123-11 has been effected within ten (10) days after the action is
123-12 effected. The shareholder may make a written demand on the
123-13 existing, surviving, or new entity for payment of the fair value of
123-14 the shareholder's shares within 10 days from the delivery or
123-15 mailing of the notice. The fair value of the shares shall be the
123-16 value of the shares on the day before the meeting, excluding any
123-17 appreciation or depreciation in anticipation of the proposed
123-18 action. The demand shall state the number and class of the shares
123-19 owned by the shareholder and the fair value of the shares as
123-20 estimated by the shareholder. A shareholder who fails to make a
123-21 demand within the 10-day period is bound by the action.
123-22 (b) With respect to a proposed action that is
123-23 approved pursuant to Subsection (A) of Section 10.30 of this Act,
123-24 the real estate investment trust, in the case of action other than
123-25 a merger, and the surviving or new entity that is liable in the
123-26 case of a merger to discharge the shareholder's right of dissent,
123-27 within 10 days after the date the action takes effect, shall mail
124-1 to each shareholder of record as of the date the action takes
124-2 effect notice of the fact and date of the action and that the
124-3 shareholder may exercise the shareholder's right to dissent from
124-4 the action. The notice shall be accompanied by a copy of this
124-5 Section and any articles or documents filed by the real estate
124-6 investment trust with the Secretary of State to effect the action.
124-7 If the shareholder did not consent to the taking of the action, the
124-8 shareholder may make written demand on the existing, surviving, or
124-9 new entity for payment of the fair value of the shareholder's
124-10 shares within 20 days after the mailing of the notice. The fair
124-11 value of the shares shall be the value of the shares on the date
124-12 the written consent authorizing the action was delivered to the
124-13 real estate investment trust pursuant to Subsection (A) of Section
124-14 10.20 of this Act, excluding any appreciation or depreciation in
124-15 anticipation of the action. The demand shall state the number and
124-16 class of shares owned by the dissenting shareholder and the fair
124-17 value of the shares as estimated by the shareholder. Any
124-18 shareholder failing to make demand within the 20-day period is
124-19 bound by the action.
124-20 (2) Within 20 days after receipt by the existing,
124-21 surviving, or new entity of a demand for payment made by a
124-22 dissenting shareholder in accordance with Subdivision (1) of this
124-23 Subsection, the entity shall deliver or mail to the shareholder a
124-24 written notice that shall either set out that the entity accepts
124-25 the amount claimed in the demand and agrees to pay that amount
124-26 within 90 days after the date on which the action was effected,
124-27 and, in the case of shares represented by certificates, on the
125-1 surrender of the certificates duly endorsed, or shall contain an
125-2 estimate by the entity of the fair value of the shares and an offer
125-3 to pay the amount of that estimate within 90 days after the date on
125-4 which the action was effected, on receipt of notice within 60 days
125-5 after that date from the shareholder that the shareholder agrees to
125-6 accept that amount and, in the case of shares represented by
125-7 certificates, on the surrender of the certificates duly endorsed.
125-8 (3) If, within 60 days after the date on which the
125-9 real estate investment trust action was effected, the value of the
125-10 shares is agreed on between the shareholder and the existing,
125-11 surviving, or new entity, payment for the shares shall be made
125-12 within 90 days after the date on which the action was effected and,
125-13 in the case of shares represented by certificates, on surrender of
125-14 the certificates duly endorsed. On payment of the agreed value,
125-15 the shareholder ceases to have any interest in the shares or in the
125-16 real estate investment trust.
125-17 (B) If, within 60 days after the date on which the action
125-18 was effected, the shareholder and the existing, surviving, or new
125-19 entity do not agree on the value of the shares, the shareholder or
125-20 entity, within 60 days after the expiration of the 60-day period,
125-21 may file a petition in any court of competent jurisdiction in the
125-22 county in which the principal office of the domestic real estate
125-23 investment trust is located, asking for a finding and determination
125-24 of the fair value of the shareholder's shares. On the filing of a
125-25 petition by the shareholder, service of a copy of the petition must
125-26 be made on the entity. The entity, within 10 days after receiving
125-27 the service, shall file in the office of the clerk of the court in
126-1 which the petition was filed a list containing the names and
126-2 addresses of all shareholders of the domestic real estate
126-3 investment trust who have demanded payment for their shares and
126-4 with whom agreements as to the value of their shares have not been
126-5 reached by the entity. If the petition is filed by the entity, the
126-6 list described in this Subsection must be attached to the petition.
126-7 The clerk of the court shall give notice of the time and place
126-8 fixed for the hearing of the petition by registered mail to the
126-9 entity and to the shareholders named on the list at the addresses
126-10 stated in the list. The court shall approve the forms of notices
126-11 sent by mail. All shareholders notified as required by this
126-12 Subsection and the entity are bound by the final judgment of the
126-13 court.
126-14 (C) After the hearing of a petition filed under this
126-15 Section, the court shall determine which shareholders have complied
126-16 with the provisions of this Section and have become entitled to the
126-17 valuation of and payment of their shares. The court shall appoint
126-18 one or more qualified appraisers to determine that value. The
126-19 appraisers may examine any books and records of the real estate
126-20 investment trust that relate to the shares the appraisers are
126-21 charged with the duty of valuing. The appraisers shall make a
126-22 determination of the fair value of the shares after conducting an
126-23 investigation. The appraisers shall also afford a reasonable
126-24 opportunity to allow interested parties to submit to the appraisers
126-25 pertinent evidence relating to the value of the shares. The
126-26 appraisers also have the power and authority that may be conferred
126-27 on masters in chancery by the Rules of Civil Procedure.
127-1 (D) The appraisers shall determine the fair value of the
127-2 shares of the shareholders adjudged by the court to be entitled to
127-3 payment for their shares and shall file their report of that value
127-4 in the office of the clerk of the court. The clerk shall give
127-5 notice of the filing of the appraisers report to interested
127-6 parties. The appraisers report shall be subject to exceptions to
127-7 be heard before the court both on the law and the facts. The court
127-8 shall determine the fair value of the shares of the shareholders
127-9 entitled to payment for their shares and shall order the existing,
127-10 surviving, or new entity to pay that value, together with interest
127-11 on the value of shares to the shareholders entitled to payment,
127-12 beginning 91 days after the date on which the applicable action
127-13 from which the shareholder elected to dissent was effected to the
127-14 date of such judgment. The judgment shall be immediately payable
127-15 to the holders of uncertificated shares. The judgment shall be
127-16 payable to the holders of shares represented by certificates only
127-17 on, and simultaneously with, the surrender to the existing,
127-18 surviving, or new entity of duly endorsed certificates for those
127-19 shares. On payment of the judgment, the dissenting shareholders
127-20 cease to have any interest in those shares or in the real estate
127-21 investment trust. The court shall allow the appraisers a
127-22 reasonable fee as court costs, and all court costs shall be
127-23 allocated between the parties in the manner that the court
127-24 determines to be fair and equitable.
127-25 (E) Shares acquired by the existing, surviving, or new
127-26 entity, pursuant to the payment of the agreed value of the shares,
127-27 to the payment of the agreed value of the shares, or to payment of
128-1 the judgment entered for the value of the shares, as in this
128-2 Section provided, in the case of a merger, shall be treated as
128-3 provided in the plan of merger and, in all other cases, may be held
128-4 and disposed of by the real estate investment trust as in the case
128-5 of other treasury shares.
128-6 (F) This Section does not apply to a merger if, on the date
128-7 of the filing of the articles of merger, the surviving entity is
128-8 the owner of all the outstanding shares of the other entities,
128-9 domestic or foreign, that are parties to the merger.
128-10 (G) In the absence of fraud in the transaction, the remedy
128-11 provided by this Section to a shareholder objecting to any action
128-12 referred to in Section 25.10 of this Act is the exclusive remedy
128-13 for the recovery of the value of the shareholder's shares or money
128-14 damages to the shareholder with respect to the action. If the
128-15 existing, surviving, or new entity complies with the requirements
128-16 of this Section, any shareholder who fails to comply with the
128-17 requirements of this Section is not entitled to bring suit for the
128-18 recovery of the value of the shareholder's shares or money damages
128-19 to the shareholder with respect to the action.
128-20 Sec. 25.30. PROVISIONS AFFECTING REMEDIES OF DISSENTING
128-21 SHAREHOLDERS. (A) Any shareholder who has demanded payment for
128-22 the shareholder's shares in accordance with Section 25.20 of this
128-23 Act is not entitled to vote or exercise any other rights of a
128-24 shareholder except the right to receive payment for the
128-25 shareholder's shares pursuant to the provisions of that Section and
128-26 the right to maintain an appropriate action to obtain relief on the
128-27 ground that the action would be or was fraudulent. The respective
129-1 shares for which payment has been demanded may not be considered
129-2 outstanding for the purposes of any subsequent vote of
129-3 shareholders.
129-4 (B) On receiving a demand for payment from any dissenting
129-5 shareholder, the real estate investment trust shall make an
129-6 appropriate notation of the demand in its shareholder records.
129-7 Within 20 days after demanding payment for shares in accordance
129-8 with Section 25.20 of this Act, each holder of certificates
129-9 representing those shares shall submit the certificates to the real
129-10 estate investment trust for notation on the certificates that such
129-11 demand has been made. The failure of holders of certificated
129-12 shares to submit the certificates to the real estate investment
129-13 trust, at the option of the real estate investment trust, shall
129-14 terminate the shareholder's rights under Section 25.20 of this Act
129-15 unless a court of competent jurisdiction for good and sufficient
129-16 cause shown directs otherwise. If uncertificated shares for which
129-17 payment has been demanded or shares represented by a certificate on
129-18 which the real estate investment trust has made a notation under
129-19 this Subsection are transferred, any new certificate issued for
129-20 those shares shall bear similar notation together with the name of
129-21 the original dissenting holder of those shares, and a transferee of
129-22 those shares shall acquire by the transfer no rights in the real
129-23 estate investment trust other than those which the original
129-24 dissenting shareholder had after making demand for payment of the
129-25 fair value of the shares.
129-26 (C) Any shareholder who has demanded payment for the
129-27 shareholder's shares in accordance with Section 25.20 of this Act
130-1 may withdraw that demand at any time before payment of those shares
130-2 has been made or before any petition has been filed pursuant to
130-3 Section 25.20 of this Act. The demand may not be withdrawn after
130-4 the payment of the shares has been made or after any such petition
130-5 has been filed, unless the real estate investment trust consents to
130-6 the withdrawal of the demand. The shareholder and all persons
130-7 claiming under the shareholder shall be conclusively presumed to
130-8 have approved and ratified the action from which the shareholder
130-9 dissented and shall be bound by the action, the rights of the
130-10 shareholder to be paid the fair value of the shareholder's shares
130-11 shall cease, and the shareholder's status as a shareholder shall be
130-12 restored without prejudice to any proceedings that may have been
130-13 taken during the interim, and the shareholder is entitled to
130-14 receive any dividends or other distributions made to the
130-15 shareholders in the interim if:
130-16 (1) the demand is withdrawn as provided in this
130-17 Subsection;
130-18 (2) pursuant to Subsection B of this Section, the
130-19 demand terminates the shareholder's rights under Section 25.20 of
130-20 this Act;
130-21 (3) no petition asking for a court finding and
130-22 determination of fair value of such shares has been filed within
130-23 the time provided in Section 25.20 of this Act; or
130-24 (4) the court determines, after the hearing of a
130-25 petition filed under Section 25.20, that the shareholder is not
130-26 entitled to the relief provided by that Section.
130-27 Sec. 26.10. REORGANIZATION UNDER A FEDERAL STATUTE.
131-1 (A) Notwithstanding any other provision of this Act to the
131-2 contrary, a trustee appointed for a real estate investment trust
131-3 being reorganized under a federal statute, the designated officers
131-4 of the real estate investment trust, or any other individual or
131-5 individuals designated by the court to act on behalf of the real
131-6 estate investment trust may do any of the following without action
131-7 by or notice to its trust managers or shareholders in order to
131-8 carry out a plan of reorganization ordered or decreed by a court of
131-9 competent jurisdiction under the federal statute:
131-10 (1) amend or restate its declaration of trust if the
131-11 declaration of trust after amendment or restatement contains only
131-12 provisions required or permitted in a declaration of trust;
131-13 (2) merge or engage in a share exchange with one or
131-14 more domestic or foreign real estate investment trusts,
131-15 corporations, partnerships or other entities pursuant to a plan of
131-16 merger or exchange having such terms and provisions as required or
131-17 permitted by Sections 23.10 and 23.20 of this Act;
131-18 (3) change the location of its registered office,
131-19 change its registered agent, and remove or appoint any agent to
131-20 receive service of process;
131-21 (4) alter, amend, or repeal its bylaws;
131-22 (5) constitute or reconstitute and classify or
131-23 reclassify its trust managers, and name, constitute, or appoint
131-24 trust managers and officers in place of or in addition to all or
131-25 some of the officers or trust managers then in place;
131-26 (6) sell, lease, exchange or otherwise dispose of all,
131-27 or substantially all, of its property and assets;
132-1 (7) authorize and fix the terms, manner, and
132-2 conditions of the issuance of bonds, debentures, or other
132-3 obligations, whether or not convertible into shares of any class or
132-4 bearing warrants or other evidences of optional rights to purchase
132-5 or subscribe for any shares of any class; or
132-6 (8) dissolve.
132-7 (B) Actions taken under Subdivision (4) or (5) of Subsection
132-8 (A) of this Section take effect on the date the order or decree
132-9 approving the plan of reorganization is entered or on another
132-10 effective date as may be specified, without further action of the
132-11 real estate investment trust, as and to the extent set forth in the
132-12 plan of reorganization or the order or decree approving the plan of
132-13 reorganization.
132-14 (C) A trustee appointed for a real estate investment trust
132-15 being reorganized under a federal statute, the designated officers
132-16 of the real estate investment trust, or any other individual or
132-17 individuals designated by the court on behalf of a real estate
132-18 investment trust that is being reorganized, may sign:
132-19 (1) articles of amendment or a restated declaration of
132-20 trust setting forth:
132-21 (a) the name of the real estate investment
132-22 trust;
132-23 (b) the text of each amendment or the
132-24 restatement approved by the court;
132-25 (c) the date of the court's order or decree
132-26 approving the articles of amendment or restatement;
132-27 (d) the court, file name, and case number of the
133-1 reorganization case in which the order or decree was entered; and
133-2 (e) a statement that the court had jurisdiction
133-3 of the case under federal statute;
133-4 (2) articles of merger or exchange setting forth:
133-5 (a) the name of the real estate investment
133-6 trust;
133-7 (b) the text of the part of the plan of
133-8 reorganization that contains the plan of merger or exchange
133-9 approved by the court and that shall include the information
133-10 required by Section 23.40 of this Act, as applicable;
133-11 (c) the date of the court's order or decree
133-12 approving the plan of merger or consolidation;
133-13 (d) the court, file name, and case number of the
133-14 reorganization case in which the order or decree was entered; and
133-15 (e) a statement that the court had jurisdiction
133-16 of the case under federal statute; or
133-17 (3) articles of dissolution setting forth:
133-18 (a) the name of the real estate investment
133-19 trust;
133-20 (b) the information required by Section 19.10 of
133-21 this Act, if any;
133-22 (c) the date of the court's order or decree
133-23 approving the articles of dissolution;
133-24 (d) a statement that the debts, obligations and
133-25 liabilities of the real estate investment trust have been paid or
133-26 discharged as provided in the plan of reorganization and that the
133-27 remaining property and assets of the real estate investment trust
134-1 have been distributed as provided in the plan of reorganization;
134-2 (e) the court, file name, and case number of the
134-3 reorganization case in which the order or decree was entered; and
134-4 (f) a statement that the court had jurisdiction
134-5 of the case under federal statute.
134-6 (D) The following apply when a domestic or foreign real
134-7 estate investment trust, corporation, partnership or other entity
134-8 that is not being reorganized merges or engages in a share exchange
134-9 with a real estate investment trust that is being reorganized
134-10 pursuant to a plan of reorganization:
134-11 (1) Sections 23.10, 23.20, 23.30, 25.10, 25.20, and
134-12 25.30 of this Act apply to the domestic or foreign real estate
134-13 investment trust, corporation, partnership, or other entity that is
134-14 not being reorganized to the same extent those sections would apply
134-15 if that entity were merging or engaging in a share exchange with a
134-16 real estate investment trust that is not being reorganized.
134-17 (2) Section 23.60 of this Act applies to the domestic
134-18 or foreign real estate investment trust, corporation, partnership
134-19 or other entity that is not being reorganized to the same extent
134-20 that Section would apply if the domestic or foreign real estate
134-21 investment trust, corporation, partnership or other entity were
134-22 merging or engaging in a share exchange with a real estate
134-23 investment trust that is not being reorganized, except as otherwise
134-24 provided in the plan of reorganization ordered or decreed by a
134-25 court of competent jurisdiction under the federal statute.
134-26 (3) On receiving all of the required authorization for
134-27 all action required by this Act for each real estate investment
135-1 trust that is a party to the plan of merger or exchange that is not
135-2 being reorganized and all action by each domestic or foreign real
135-3 estate investment trust, corporation, partnership or other entity
135-4 that is a party to the plan of merger or exchange required by the
135-5 laws under which it is incorporated or organized and its
135-6 constituent documents, each domestic or foreign real estate
135-7 investment trust, corporation, partnership or other entity that is
135-8 a party to the merger or exchange other than the real estate
135-9 investment trust that is being reorganized as provided in Section
135-10 23.40 of this Act the persons described by Subsection (C) of this
135-11 Section, on behalf of the real estate investment trust that is
135-12 being reorganized, shall sign the articles of merger or exchange.
135-13 (4) The articles of merger or exchange shall set forth
135-14 the information required in Subdivision (2) of Subsection (C) of
135-15 this Section.
135-16 (5) The articles of merger or exchange shall be filed
135-17 with the Secretary of State in the manner and with the number of
135-18 copies provided in Section 23.40 of this Act.
135-19 (6) On the issuance of the certificate of merger or
135-20 share exchange by the Secretary of State as provided in Section
135-21 23.40 of this Act, the merger or share exchange becomes effective
135-22 with the same effect as if the merger or share exchange had been
135-23 adopted by unanimous action of the trust managers and shareholders
135-24 of the real estate investment trust being reorganized. The
135-25 effectiveness of the merger or share exchange shall be determined
135-26 as provided in Section 23.50 of this Act.
135-27 (E) Shareholders of a real estate investment trust being
136-1 reorganized under a federal statute do not have a right to dissent
136-2 under this Act, unless the plan of reorganization provides
136-3 otherwise.
136-4 (F) This Section does not apply after a final decree is
136-5 entered by a court in the reorganization case even though the court
136-6 may retain jurisdiction of the case for limited purposes unrelated
136-7 to consummation of the plan of reorganization.
136-8 (G) This Section does not preclude other changes in real
136-9 estate investment securities by a plan of reorganization ordered or
136-10 decreed by a court of competent jurisdiction under federal statute.
136-11 Sec. 27.10. DELAYED EFFECTIVENESS OF CERTAIN FILINGS. (A)
136-12 A permitted act may be made effective at a time and date after the
136-13 time and date otherwise provided for the permitted act in this Act
136-14 or may be made effective on the occurrence of future events or
136-15 facts, including future acts of any person or entity, if:
136-16 (1) the articles, statement, application, or other
136-17 filing that is required to be filed with the Secretary of State by
136-18 this Act to make effective the permitted act clearly and expressly
136-19 set forth, in addition to any other statement or information
136-20 required to be set forth in those documents:
136-21 (a) the time and date on which the permitted act
136-22 is to become effective or whether the permitted act is to become
136-23 effective on the occurrence of a future event or fact;
136-24 (b) the manner in which the future event or fact
136-25 shall operate to cause the permitted act to become effective; and
136-26 (c) the date of the 90th day after the date of
136-27 the filing of the articles, statement, application or other filing;
137-1 (2) in the case of a permitted act that is to become
137-2 effective as of a time or date after the time and date otherwise
137-3 provided in this Act, the subsequent time and date is not more than
137-4 90 days after the date of the filing of the articles, statement,
137-5 application, or other filing that is otherwise required by this Act
137-6 to be filed with the Secretary of State to make effective the
137-7 permitted act and the time on which the permitted act is to become
137-8 effective is not midnight or noon; and
137-9 (3) in the case of a permitted act that is to take
137-10 effect on the occurrence of events or facts that may occur in the
137-11 future, other than the mere passage of time, a statement that all
137-12 the events or facts on which the effectiveness of the permitted act
137-13 is conditioned have been satisfied or waived, including the date on
137-14 which the condition was satisfied or waived, is filed with the
137-15 Secretary of State within 90 days of the date of the filing of the
137-16 articles, statement, application or other filing that is otherwise
137-17 required by this Act for the permitted act to become effective.
137-18 (B) The statement required by Subdivision (3) of Subsection
137-19 (A) of this Section shall be executed on behalf of each domestic or
137-20 foreign real estate investment trust, corporation, partnership, or
137-21 other entity that was required to execute the articles, statement,
137-22 application, or other filing that is otherwise required to be filed
137-23 with the Secretary of State to make effective the permitted act by
137-24 this Act by an officer or other duly authorized representative of
137-25 the entity, including an officer or duly authorized representative
137-26 of any successor domestic or foreign real estate investment trust,
137-27 corporation, partnership, or other entity. The original statement
138-1 and a copy of the original statement must be filed with the
138-2 Secretary of State. If the Secretary of State finds that the
138-3 statement conforms to the provisions of this Act, the Secretary of
138-4 State shall:
138-5 (1) Endorse on the original and the copy the word
138-6 "Filed" and the month, day, and year of the filing of the
138-7 statement.
138-8 (2) File the original in the office of the Secretary
138-9 of State.
138-10 (3) Return the copy to the filing party or its
138-11 representative.
138-12 (C) If any permitted act is to take effect as of a time or
138-13 date after the time and date otherwise provided in this Act for the
138-14 permitted act to become effective, notwithstanding any other
138-15 provision of this Act to the contrary, the permitted act, to the
138-16 extent permitted by Subsection (A) of this Section, shall take
138-17 effect on that subsequent time and date. Any certificate issued by
138-18 the Secretary of State on the filing of the articles, statement,
138-19 application or other filing that is otherwise required by this Act
138-20 for the permitted act to become effective shall expressly set forth
138-21 the time and date on which the permitted act is to take effect.
138-22 (D) If any permitted act is to be made effective on the
138-23 occurrence of future events or facts, other than the mere passage
138-24 of time, and the statement required by Subdivision (3) of
138-25 Subsection (A) of this Section is filed with the Secretary of State
138-26 within the time prescribed in that Subdivision, the permitted act
138-27 takes effect on the time and date on which the latest specified
139-1 event or fact occurs or the time and date on which the condition is
139-2 otherwise satisfied or waived. Any certificate issued, or
139-3 notation, acknowledgement or other statement made by the Secretary
139-4 of State on the filing of the articles, statement, application, or
139-5 other filing that is otherwise required by this Act for the
139-6 permitted act to take effect shall state that "The effectiveness of
139-7 the action to which this instrument relates is conditioned on the
139-8 occurrence of certain facts or events described in the filing to
139-9 which this instrument relates" or shall make reference, in such
139-10 manner as the Secretary of State considers appropriate, to the fact
139-11 that the effectiveness of the action is conditioned on the
139-12 occurrence of those facts or events. The time and date on which a
139-13 condition to the effectiveness of a permitted act is satisfied or
139-14 waived as set forth in a statement filed with the Secretary of
139-15 State under Subdivision (3) of Subsection (A) of this Section shall
139-16 be conclusively regarded as the time and date on which the
139-17 condition was satisfied or waived for purposes of this Section.
139-18 (E) If the effectiveness of any permitted act is conditioned
139-19 on the occurrence of future events or facts, other than the mere
139-20 passage of time, and the statement required by Subdivision (3) of
139-21 Subsection (A) of this Section is not filed with the Secretary of
139-22 State within the time prescribed in that Subdivision, the permitted
139-23 act may not take effect unless the articles, statement,
139-24 application, or other filing required by this Act to be filed with
139-25 the Secretary of State to make the permitted act effective are
139-26 subsequently filed with the Secretary of State.
139-27 (F) In this section, "permitted act" means:
140-1 (1) the formation of a real estate investment trust
140-2 under this Act;
140-3 (2) an amendment to a real estate investment trust's
140-4 declaration of trust, including an amendment effected pursuant to a
140-5 statement of resolution establishing a series of shares;
140-6 (3) the restatement of declaration of trust of a real
140-7 estate investment trust;
140-8 (4) a merger or share exchange;
140-9 (5) a cancellation of redeemable or reacquired shares
140-10 or a reduction in stated capital;
140-11 (6) a voluntary dissolution;
140-12 (7) a bylaw or agreement restricting the transfer of
140-13 shares or securities of a real estate investment trust pursuant to
140-14 this Act;
140-15 (8) a change in registered office or registered agent;
140-16 or
140-17 (9) a change of address of a registered agent.
140-18 Sec. 28.10 <24>. CASES NOT PROVIDED FOR. (A) In any case
140-19 not provided for in this Act, analogous provisions of the Texas
140-20 Business Corporation Act, and the case law construing that Act,
140-21 shall govern; provided, however, that in any case where a provision
140-22 of this Act conflicts with a provision of the Texas Business
140-23 Corporation Act, the provisions of this Act control. Nothing in
140-24 this Section shall be construed to cause a provision of the Texas
140-25 Business Corporation Act to control over a similar provision of
140-26 this Act on the grounds that the Texas Business Corporation Act
140-27 provision is more or less extensive, restrictive, or detailed. <the
141-1 rules of law and equity, including the law of merchant shall
141-2 govern. For purposes of the Texas Trust Code (Subtitle B, Title 9,
141-3 Property Code) and this Act, a real estate investment trust created
141-4 hereunder shall be considered a "business trust.">
141-5 (B) Any unincorporated trust which does not meet the
141-6 requirements of this Act shall be treated as an unincorporated
141-7 association pursuant to Chapter 2 of this Title 105.
141-8 SECTION 2. This Act takes effect September 1, 1995, and
141-9 changes in law made by this Act apply only to an action or
141-10 proceeding that is commenced on or after that date. An action or
141-11 proceeding that was commenced before the effective date of this Act
141-12 is governed by the law as it existed immediately before the
141-13 effective date, and that law is continued in effect for that
141-14 purpose.
141-15 SECTION 3. The importance of this legislation and the
141-16 crowded condition of the calendars in both houses create an
141-17 emergency and an imperative public necessity that the
141-18 constitutional rule requiring bills to be read on three several
141-19 days in each house be suspended, and this rule is hereby suspended.