CHAPTER 200. REAL ESTATE INVESTMENT TRUSTS
BUSINESS ORGANIZATIONS CODE
TITLE 5. REAL ESTATE INVESTMENT TRUSTS
CHAPTER 200. REAL ESTATE INVESTMENT TRUSTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 200.001. DEFINITION. In this chapter, "real estate
investment trust" means an unincorporated trust:
(1) formed by one or more trust managers under this chapter and
Chapter 3; and
(2) managed under this chapter.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.002. APPLICABILITY OF CHAPTER. (a) The provisions of
Chapters 20 and 21 govern a matter to the extent that this
chapter or Title 1 does not govern the matter.
(b) An unincorporated trust that does not meet the requirements
of this chapter is an unincorporated association.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.003. CONFLICT WITH OTHER LAW. In case of conflict
between this chapter and Chapters 20 and 21, this chapter
controls. Chapters 20 and 21 do not control over this chapter
merely because a provision of Chapter 20 or 21 is more or less
extensive, restrictive, or detailed than a similar provision of
this chapter.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.004. ULTRA VIRES ACTS. (a) Lack of capacity of a real
estate investment trust may not be the basis of any claim or
defense at law or in equity.
(b) An act of a real estate investment trust or a transfer of
property by or to a real estate investment trust is not invalid
because the act or transfer was:
(1) beyond the scope of the purpose or purposes of the real
estate investment trust as expressed in the real estate
investment trust's certificate of formation; or
(2) inconsistent with a limitation on the authority of an
officer or trust manager to exercise a statutory power of the
real estate investment trust, as that limitation is expressed in
the real estate investment trust's certificate of formation.
(c) The fact that an act or transfer is beyond the scope of the
expressed purpose or purposes of the real estate investment trust
or is inconsistent with an expressed limitation on the authority
of an officer or trust manager may be asserted in a proceeding:
(1) by a shareholder against the real estate investment trust to
enjoin the performance of an act or the transfer of property by
or to the real estate investment trust; or
(2) by the real estate investment trust, acting directly or
through a receiver, trustee, or other legal representative, or
through shareholders in a representative suit, against an officer
or trust manager or former officer or trust manager of the real
estate investment trust for exceeding that person's authority.
(d) If the unauthorized act or transfer sought to be enjoined
under Subsection (c)(1) is being or is to be performed or made
under a contract to which the real estate investment trust is a
party and if each party to the contract is a party to the
proceeding, the court may set aside and enjoin the performance of
the contract. The court may award to the real estate investment
trust or to another party to the contract, as appropriate,
compensation for loss or damage resulting from the action of the
court in setting aside and enjoining the performance of the
contract, excluding loss of anticipated profits.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.005. SUPPLEMENTARY POWERS OF REAL ESTATE INVESTMENT
TRUST. (a) Subject to Section 2.113(a) and in addition to the
powers specified in Section 2.101, a real estate investment trust
may engage in activities mandated or authorized by:
(1) provisions of the Internal Revenue Code that are related to
or govern real estate investment trusts; and
(2) regulations adopted under the Internal Revenue Code.
(b) This section does not authorize a real estate investment
trust or an officer or trust manager of a real estate investment
trust to exercise a power in a manner inconsistent with a
limitation on the purposes or powers of the real estate
investment trust contained in:
(1) the trust's certificate of formation;
(2) this code; or
(3) another law of this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.006. REQUIREMENT THAT FILING INSTRUMENT BE SIGNED BY
OFFICER. Unless otherwise provided by this chapter, a filing
instrument of a real estate investment trust may be signed by an
officer of the real estate investment trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
SUBCHAPTER B. FORMATION AND GOVERNING DOCUMENTS
Sec. 200.051. DECLARATION OF TRUST. For purposes of this code,
the certificate of formation of a real estate investment trust is
a declaration of trust. The certificate of formation may be
titled "declaration of trust" or "certificate of formation."
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.052. NO PROPERTY RIGHT IN CERTIFICATE OF FORMATION. A
shareholder of a real estate investment trust does not have a
vested property right resulting from the certificate of
formation, including a provision in the certificate of formation
relating to the management, control, capital structure, dividend
entitlement, purpose, or duration of the real estate investment
trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.053. PROCEDURES TO ADOPT AMENDMENT TO CERTIFICATE OF
FORMATION. (a) To adopt an amendment to the certificate of
formation of a real estate investment trust as provided by
Subchapter B, Chapter 3, the trust managers shall:
(1) adopt a resolution stating the proposed amendment; and
(2) follow the procedures prescribed by Sections
200.054-200.056.
(b) The resolution may incorporate the proposed amendment in a
restated certificate of formation that complies with Section
3.059.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.054. ADOPTION OF AMENDMENT BY TRUST MANAGERS. If a
real estate investment trust does not have any issued and
outstanding shares, the trust managers may adopt a proposed
amendment to the real estate investment trust's certificate of
formation by resolution without shareholder approval.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.055. ADOPTION OF AMENDMENT BY SHAREHOLDERS. If a real
estate investment trust has issued and outstanding shares:
(1) a resolution described by Section 200.053 must also direct
that the proposed amendment be submitted to a vote of the
shareholders at a meeting; and
(2) the shareholders must approve the proposed amendment in the
manner provided by Section 200.056.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.056. NOTICE OF AND MEETING TO CONSIDER PROPOSED
AMENDMENT. (a) Each shareholder of record entitled to vote
shall be given written notice containing the proposed amendment
or a summary of the changes to be effected within the time and in
the manner provided by this code for giving notice of meetings to
shareholders. If the proposed amendment is to be considered at an
annual meeting, the proposed amendment or summary may be included
in the notice required to be provided for an annual meeting.
(b) At the meeting, the proposed amendment shall be adopted only
on receiving the affirmative vote of shareholders entitled to
vote required by Section 200.261.
(c) An unlimited number of amendments may be submitted for
adoption by the shareholders at a meeting.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.057. ADOPTION OF RESTATED CERTIFICATE OF FORMATION.
(a) A real estate investment trust may adopt a restated
certificate of formation as provided by Subchapter B, Chapter 3,
by following the same procedures to amend its certificate of
formation under Sections 200.053-200.056, except that shareholder
approval is not required if an amendment is not adopted.
(b) If shares of the real estate investment trust have not been
issued and the restated certificate of formation is adopted by
the trust managers, the majority of the trust managers may sign
the restated certificate of formation on behalf of the real
estate investment trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.058. BYLAWS. (a) The trust managers of a real estate
investment trust shall adopt initial bylaws.
(b) The bylaws may contain provisions for the regulation and
management of the affairs of the real estate investment trust
that are consistent with law and the real estate investment
trust's certificate of formation.
(c) The trust managers of a real estate investment trust may
amend or repeal bylaws or adopt new bylaws unless:
(1) the real estate investment trust's certificate of formation
or this chapter wholly or partly reserves the power exclusively
to the real estate investment trust's shareholders; or
(2) in amending, repealing, or adopting a bylaw, the
shareholders expressly provide that the trust managers may not
amend, repeal, or readopt that bylaw.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.059. DUAL AUTHORITY. Unless the certificate of
formation or a bylaw adopted by the shareholders provides
otherwise as to all or a part of a real estate investment trust's
bylaws, the shareholders of a real estate investment trust may
amend, repeal, or adopt the bylaws of the real estate investment
trust even if the bylaws may also be amended, repealed, or
adopted by the trust managers of the real estate investment
trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.060. ORGANIZATION MEETING. (a) After the real estate
investment trust has been formed, the initial trust managers of
the real estate investment trust shall hold an organization
meeting, at the call of a majority of those trust managers, for
the purpose of adopting bylaws, electing officers, and
transacting other business.
(b) Not later than the third day before the date of the meeting,
the initial trust managers calling the meeting shall send notice
of the time and place of the meeting to the other initial trust
managers named in the certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
SUBCHAPTER C. SHARES
Sec. 200.101. NUMBER. A real estate investment trust may issue
the number of shares stated in the real estate investment trust's
certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.102. CLASSIFICATION OF SHARES. A real estate
investment trust may provide in the real estate investment
trust's certificate of formation:
(1) that a specified class of shares is preferred over another
class of shares as to its distributive share of the assets on
voluntary or involuntary liquidation of the real estate
investment trust;
(2) the amount of a preference described by Subdivision (1);
(3) that a specified class of shares may be redeemed at the
option of the real estate investment trust or of the holders of
the shares;
(4) the terms and conditions of a redemption of shares described
by Subdivision (3), including the time and price of redemption;
(5) that a specified class of shares may be converted into
shares of one or more other classes;
(6) the terms and conditions of a conversion described by
Subdivision (5);
(7) that a holder of a specified security issued or to be issued
by the real estate investment trust has voting or other rights
authorized by law; and
(8) for other preferences, rights, restrictions, including
restrictions on transferability, and qualifications consistent
with law.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.103. CLASSES OF SHARES ESTABLISHED BY TRUST MANAGERS.
(a) A real estate investment trust may provide in the real
estate investment trust's certificate of formation that the trust
managers may classify or reclassify any unissued shares by
setting or changing the preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends,
qualifications, or terms or conditions of redemption of the
shares.
(b) Before issuing shares, the trust managers who perform as
authorized by the certificate of formation an action described by
Subsection (a) must file with the county clerk of the county of
the principal place of business of the real estate investment
trust a statement of designation that contains:
(1) a description of the shares, including the preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and
conditions of redemption, as set or changed by the trust
managers; and
(2) a statement that the shares have been classified or
reclassified by the trust managers as authorized by the
certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.104. ISSUANCE OF SHARES. (a) A real estate investment
trust may issue shares for consideration if authorized by the
trust managers.
(b) Shares may not be issued until the consideration, determined
in accordance with this subchapter, has been paid to the real
estate investment trust or to another entity of which all of the
outstanding ownership interests are directly or indirectly owned
by the real estate investment trust. When the consideration is
paid:
(1) the shares are considered to be issued;
(2) the shareholder entitled to receive the shares is a
shareholder with respect to the shares; and
(3) the shares are considered fully paid and nonassessable.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.105. TYPES OF CONSIDERATION FOR ISSUANCE OF SHARES.
Shares with or without par value may be issued by a real estate
investment trust for the following types of consideration:
(1) a tangible or intangible benefit to the real estate
investment trust;
(2) cash;
(3) a promissory note;
(4) services performed or a contract for services to be
performed;
(5) a security of the real estate investment trust or any other
organization; and
(6) any other property of any kind or nature.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.106. DETERMINATION OF CONSIDERATION FOR SHARES.
Consideration to be received by a real estate investment trust
for shares shall be determined by the trust managers.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.107. AMOUNT OF CONSIDERATION FOR ISSUANCE OF SHARES
WITH PAR VALUE. Consideration to be received by a real estate
investment trust for the issuance of shares with par value may
not be less than the par value of the shares.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.108. VALUE OF CONSIDERATION. In the absence of fraud
in the transaction, the judgment of the trust managers is
conclusive in determining the value of the consideration received
for the shares.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.109. LIABILITY OF ASSIGNEE OR TRANSFEREE. An assignee
or transferee of certificated shares, uncertificated shares, or a
subscription for shares in good faith and without knowledge that
full consideration for the shares or subscription has not been
paid may not be held personally liable to the real estate
investment trust or a creditor of the real estate investment
trust for an unpaid portion of the consideration.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.110. SUBSCRIPTIONS. (a) A real estate investment
trust may accept a subscription by notifying the subscriber in
writing.
(b) A subscription to purchase shares in a real estate
investment trust that is in the process of being formed is
irrevocable for six months if the subscription is in writing and
signed by the subscriber unless the subscription provides for a
longer or shorter period or all of the other subscribers agree to
the revocation of the subscription.
(c) A written subscription entered into after the real estate
investment trust is formed is a contract between the subscriber
and the real estate investment trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.111. PREFORMATION SUBSCRIPTION. (a) A real estate
investment trust may determine the payment terms of a
preformation subscription unless the payment terms are specified
by the subscription. The payment terms may authorize payment in
full on acceptance or by installments.
(b) Unless the subscription provides otherwise, a real estate
investment trust shall make calls placed to all subscribers of
similar interests for payment on preformation subscriptions
uniform as far as practicable.
(c) After the real estate investment trust is formed, if a
subscriber fails to pay any installment or call when due, the
real estate investment trust may:
(1) collect in the same manner as any other debt the amount due
on any unpaid preformation subscription; or
(2) forfeit the subscription if the installment or call remains
unpaid for 20 days after written notice to the subscriber.
(d) Although the forfeiture of a subscription terminates all the
rights and obligations of the subscriber, the real estate
investment trust may retain any amount previously paid on the
subscription.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.112. COMMITMENT IN CONNECTION WITH PURCHASE OF SHARES.
(a) A person who contemplates the acquisition of shares in a
real estate investment trust may commit to act in a specified
manner with respect to the shares after the acquisition,
including the voting of the shares or the retention or
disposition of the shares. To be binding, the commitment must be
in writing and be signed by the person acquiring the shares.
(b) A written commitment entered into under Subsection (a) is a
contract between the shareholder and the real estate investment
trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.113. SUPPLEMENTAL REQUIRED RECORDS. In addition to the
books and records required to be kept under Section 3.151, a real
estate investment trust must keep at its principal office or
place of business, or at the office of its transfer agent or
registrar, a record of the number of shares held by each
shareholder.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
SUBCHAPTER D. SHAREHOLDER RIGHTS AND RESTRICTIONS
Sec. 200.151. REGISTERED HOLDERS AS OWNERS. Except as otherwise
provided by this code and subject to Chapter 8, Business &
Commerce Code, a real estate investment trust may consider the
person registered as the owner of a share in the share transfer
records of the real estate investment trust at a particular time,
including a record date set under Section 6.102, as the owner of
that share at that time for purposes of:
(1) voting the share;
(2) receiving distributions on the share;
(3) transferring the share;
(4) receiving notice, exercising rights of dissent and
appraisal, exercising or waiving a preemptive right, or giving
proxies with respect to that share; or
(5) entering into agreements with respect to that share in
accordance with Section 6.251 or 6.252 or with this subchapter.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.152. NO STATUTORY PREEMPTIVE RIGHT UNLESS SPECIFICALLY
PROVIDED BY CERTIFICATE OF FORMATION. A shareholder of a real
estate investment trust does not have a preemptive right to
acquire securities except to the extent specifically provided by
the certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.153. CHARACTERIZATION AND TRANSFER OF SHARES AND OTHER
SECURITIES. Except as otherwise provided by this code, the
shares and other securities of a real estate investment trust
are:
(1) personal property for all purposes; and
(2) transferable in accordance with Chapter 8, Business &
Commerce Code.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.154. RESTRICTION ON TRANSFER OF SHARES AND OTHER
SECURITIES. (a) A restriction on the transfer or registration
of transfer of a security may be imposed by:
(1) the real estate investment trust's certificate of formation;
(2) the real estate investment trust's bylaws;
(3) a written agreement among two or more holders of the
securities; or
(4) a written agreement among one or more holders of the
securities and the real estate investment trust if:
(A) the real estate investment trust files a copy of the
agreement at the principal place of business or registered office
of the real estate investment trust; and
(B) the copy of the agreement is subject to the same right of
examination by a shareholder of the real estate investment trust,
in person or by agent, attorney, or accountant, as the books and
records of the real estate investment trust.
(b) A restriction imposed under Subsection (a) is not valid with
respect to a security issued before the restriction has been
adopted, unless the holder of the security voted in favor of the
restriction or is a party to the agreement imposing the
restriction.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.155. VALID RESTRICTION ON TRANSFER. Notwithstanding
Sections 200.154 and 200.157, a restriction placed on the
transfer or registration of transfer of a security of a real
estate investment trust is valid if the restriction reasonably:
(1) obligates the holder of the restricted security to offer a
person, including the real estate investment trust or other
holders of securities of the real estate investment trust, an
opportunity to acquire the restricted security within a
reasonable time before the transfer;
(2) obligates the real estate investment trust, to the extent
provided by this code, or another person to purchase a security
that is the subject of an agreement relating to the purchase and
sale of the restricted security;
(3) requires the real estate investment trust or the holders of
a class of the real estate investment trust's securities to
consent to a proposed transfer of the restricted security or to
approve the proposed transferee of the restricted security for
the purpose of preventing a violation of law;
(4) prohibits the transfer of the restricted security to a
designated person or group of persons and the designation is not
manifestly unreasonable; or
(5) maintains a tax advantage to the real estate investment
trust, including maintaining its status as a real estate
investment trust under the relevant provisions of the Internal
Revenue Code and regulations adopted under the Internal Revenue
Code.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.156. BYLAW OR AGREEMENT RESTRICTING TRANSFER OF SHARES
OR OTHER SECURITIES. (a) A real estate investment trust that
has adopted a bylaw or is a party to an agreement that restricts
the transfer of the shares or other securities of the real estate
investment trust may file with the county clerk of the county of
the principal place of business of the real estate investment
trust a copy of the bylaw or agreement and a statement attached
to the copy that:
(1) contains the name of the real estate investment trust;
(2) states that the attached copy of the bylaw or agreement is a
true and correct copy of the bylaw or agreement; and
(3) states that the filing has been authorized by the trust
managers or shareholders, as appropriate.
(b) After the statement is filed with the county clerk, the
bylaws or agreement restricting the transfer of shares or other
securities is a public record, and the fact that the statement
has been filed must be stated on a certificate representing the
restricted shares or securities if required by Section 3.202.
(c) A real estate investment trust that is a party to an
agreement restricting the transfer of the shares or other
securities of the real estate investment trust may make the
agreement part of the real estate investment trust's certificate
of formation without restating the provisions of the agreement in
the certificate of formation by complying with this code or
amending the certificate of formation. If the agreement alters
the original or amended certificate of formation, the altered
provision must be identified by reference or description in the
certificate of amendment. If the agreement is an addition to the
original or amended certificate of formation, the certificate of
amendment must state that fact.
(d) The certificate of amendment must:
(1) include a copy of the agreement restricting the transfer of
shares or other securities;
(2) state that the attached copy of the agreement is a true and
correct copy of the agreement; and
(3) state that inclusion of the certificate of amendment as part
of the certificate of formation has been authorized in the manner
required by this code to amend the certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.157. ENFORCEABILITY OF RESTRICTION ON TRANSFER OF
CERTAIN SECURITIES. (a) A restriction placed on the transfer or
registration of the transfer of a security of a real estate
investment trust is specifically enforceable against the holder,
or a successor or transferee of the holder, if:
(1) the restriction is reasonable and noted conspicuously on the
certificate or other instrument representing the security; or
(2) with respect to an uncertificated security, the restriction
is reasonable and a notation of the restriction is contained in
the notice sent with respect to the security under Section 3.205.
(b) Unless noted in the manner specified by Subsection (a) with
respect to a certificate or other instrument or an uncertificated
security, an otherwise enforceable restriction is ineffective
against a transferee for value without actual knowledge of the
restriction at the time of the transfer or against a subsequent
transferee, regardless of whether the transfer is for value. A
restriction is specifically enforceable against a person other
than a transferee for value from the time the person acquires
actual knowledge of the restriction's existence.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.158. JOINT OWNERSHIP OF SHARES. (a) If shares are
registered on the books of a real estate investment trust in the
names of two or more persons as joint owners with the right of
survivorship and one of the owners dies, the real estate
investment trust may record on its books and effect the transfer
of the shares to a person, including the surviving joint owner,
and pay any distributions made with respect to the shares, as if
the surviving joint owner was the sole owner of the shares. The
recording and distribution authorized by this subsection must be
made after the death of a joint owner and before the real estate
investment trust receives actual written notice that a party
other than a surviving joint owner is claiming an interest in the
shares or distribution.
(b) The discharge of a real estate investment trust from
liability under Section 200.160 and the transfer of full legal
and equitable title of the shares does not affect, reduce, or
limit any cause of action existing in favor of an owner of an
interest in the shares or distribution against the surviving
owner.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.159. LIABILITY FOR DESIGNATING OWNER OF SHARES. A real
estate investment trust or an officer, trust manager, employee,
or agent of the real estate investment trust may not be held
liable for considering a person to be the owner of a share for a
purpose described by Section 200.151, regardless of whether the
person possesses a certificate for those shares.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.160. LIABILITY REGARDING JOINT OWNERSHIP OF SHARES. A
real estate investment trust that transfers shares or makes a
distribution to a surviving joint owner under Section 200.158
before the real estate investment trust has received a written
claim for the shares or distribution from another person is
discharged from liability for the transfer or payment.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.161. LIMITATION OF LIABILITY FOR OBLIGATIONS. (a) A
holder of shares, an owner of any beneficial interest in shares,
or a subscriber for shares whose subscription has been accepted
is not under an obligation to the real estate investment trust or
its obligees with respect to:
(1) the shares, other than the obligation to pay to the real
estate investment trust the full amount of consideration, fixed
in compliance with Sections 200.104-200.108, for which the shares
were or are to be issued;
(2) any contractual obligation of the real estate investment
trust on the basis that the holder, beneficial owner, or
subscriber is or was the alter ego of the real estate investment
trust or on the basis of actual or constructive fraud, a sham to
perpetrate a fraud, or other similar theory; or
(3) any obligation of the real estate investment trust on the
basis of the failure of the real estate investment trust to
observe any formality, including the failure to:
(A) comply with this code or the declaration of trust or bylaws
of the real estate investment trust; or
(B) observe any requirement prescribed by this code or the
declaration of trust or bylaws of the real estate investment
trust for acts to be taken by the real estate investment trust or
its trust managers or shareholders.
(b) Subsection (a)(2) does not prevent or limit the liability of
a holder, beneficial owner, or subscriber if the obligee
demonstrates that the holder, beneficial owner, or subscriber
caused the real estate investment trust to be used for the
purpose of perpetrating and did perpetrate an actual fraud on the
obligee primarily for the direct personal benefit of the holder,
beneficial owner, or subscriber.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.162. PREEMPTION OF LIABILITY. The liability of a
holder, beneficial owner, or subscriber of shares of a real
estate investment trust for an obligation that is limited by
Section 200.161 is exclusive and preempts any other liability
imposed for that obligation under common law or otherwise.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.163. EXCEPTIONS TO LIMITATIONS. Section 200.161 or
200.162 does not limit the obligation of a holder, beneficial
owner, or subscriber to the obligee of the real estate investment
trust if that person:
(1) expressly assumes, guarantees, or agrees to be personally
liable to the obligee for the obligation; or
(2) is otherwise liable to the obligee for the obligation under
this code or other applicable statute.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.164. PLEDGEES AND TRUST ADMINISTRATORS. (a) A pledgee
or other holder of shares as collateral security is not
personally liable as a shareholder.
(b) An executor, administrator, conservator, guardian, trustee,
assignee for the benefit of creditors, or receiver is not
personally liable as a holder of or subscriber to shares of a
real estate investment trust.
(c) The estate and funds administered by an executor,
administrator, conservator, guardian, trustee, assignee for the
benefit of creditors, or receiver are liable for the full amount
of the consideration for which the shares were or are to be
issued.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
SUBCHAPTER E. DISTRIBUTIONS AND SHARE DIVIDENDS
Sec. 200.201. AUTHORITY FOR DISTRIBUTIONS. The trust managers
of a real estate investment trust may authorize a distribution
and the real estate investment trust may make a distribution,
subject to Section 200.202 and any restriction in the certificate
of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.202. LIMITATIONS ON DISTRIBUTIONS. (a) A real estate
investment trust may not make a distribution:
(1) if the real estate investment trust would be insolvent after
the distribution; or
(2) that is more than the surplus of the real estate investment
trust.
(b) Notwithstanding Subsection (a)(2), if the net assets of a
real estate investment trust are not less than the amount of the
proposed distribution, the real estate investment trust may make
a distribution involving a purchase or redemption of its own
shares if the purchase or redemption is made by the real estate
investment trust to:
(1) eliminate fractional shares;
(2) collect or settle indebtedness owed by or to the real estate
investment trust;
(3) pay dissenting shareholders entitled to receive payment for
their shares under this chapter; or
(4) effect the purchase or redemption of redeemable shares in
accordance with this code.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.203. PRIORITY OF DISTRIBUTIONS. A real estate
investment trust's indebtedness that arises as a result of the
declaration of a distribution and a real estate investment
trust's indebtedness issued in a distribution are at parity with
the real estate investment trust's indebtedness to its general,
unsecured creditors, except to the extent the indebtedness is
subordinated, or payment of that indebtedness is secured, by
agreement.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.204. RESERVES, DESIGNATIONS, AND ALLOCATIONS FROM
SURPLUS. (a) A real estate investment trust, by resolution of
the trust managers of the real estate investment trust, may:
(1) create a reserve out of the surplus of the real estate
investment trust; or
(2) designate or allocate in any manner a part or all of the
real estate investment trust's surplus for a proper purpose.
(b) A real estate investment trust may increase, decrease, or
abolish a reserve, designation, or allocation in the manner
provided by Subsection (a).
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.205. AUTHORITY FOR SHARE DIVIDENDS. The trust managers
of a real estate investment trust may authorize a share dividend,
and the real estate investment trust may pay a share dividend
subject to Section 200.206 and any restriction in the certificate
of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.206. LIMITATIONS ON SHARE DIVIDENDS. (a) A real
estate investment trust may not pay a share dividend in
authorized but unissued shares of any class if the surplus of the
real estate investment trust is less than the amount required by
Section 200.208 to be transferred to stated capital at the time
the share dividend is made.
(b) A share dividend in shares of any class may not be made to a
holder of shares of any other class unless:
(1) the real estate investment trust's certificate of formation
provides for the dividend; or
(2) the share dividend is authorized by the affirmative vote or
the written consent of the holders of at least a majority of the
outstanding shares of the class in which the share dividend is to
be made.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.207. VALUE OF SHARES ISSUED AS SHARE DIVIDENDS. (a) A
share dividend payable in authorized but unissued shares with par
value shall be issued at the par value of the shares.
(b) A share dividend payable in authorized but unissued shares
without par value shall be issued at the value set by the trust
managers when the share dividend is authorized.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.208. TRANSFER OF SURPLUS FOR SHARE DIVIDENDS. (a)
When a share dividend payable in authorized but unissued shares
with par value is made by a real estate investment trust, an
amount of surplus designated by the trust managers that is not
less than the aggregate par value of the shares issued as a share
dividend shall be transferred to stated capital.
(b) When a share dividend payable in authorized but unissued
shares without par value is made by a real estate investment
trust, an amount of surplus equal to the aggregate value set by
the trust managers with respect to the shares under Section
200.207(b) shall be transferred to stated capital.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.209. DETERMINATION OF SOLVENCY, NET ASSETS, STATED
CAPITAL, AND SURPLUS. (a) The determination of whether a real
estate investment trust is or would be insolvent and the
determination of the value of a real estate investment trust's
net assets, stated capital, or surplus and each of the components
of net assets, stated capital, or surplus may be based on:
(1) financial statements of the real estate investment trust
that present the financial condition of the real estate
investment trust in accordance with generally accepted accounting
principles, including financial statements that include
subsidiary entities or other entities accounted for on a
consolidated basis or on the equity method of accounting;
(2) financial statements prepared using the method of accounting
used to file the real estate investment trust's federal income
tax return or using any other accounting practices and principles
that are reasonable under the circumstances;
(3) financial information, including condensed or summary
financial statements, that is prepared on the same basis as
financial statements described by Subdivision (1) or (2);
(4) a projection, a forecast, or other forward-looking
information relating to the future economic performance,
financial condition, or liquidity of the real estate investment
trust that is reasonable under the circumstances;
(5) a fair valuation or information from any other method that
is reasonable under the circumstances; or
(6) a combination of a statement, a valuation, or information
authorized by this section.
(b) Subsection (a) does not apply to the computation of any tax
imposed under the laws of this state.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.210. DATE OF DETERMINATION OF SURPLUS. (a) For
purposes of this subchapter, a determination of whether a real
estate investment trust is or would be made insolvent by a
distribution or share dividend or a determination of the value of
a real estate investment trust's surplus shall be made:
(1) on the date the distribution or share dividend is authorized
by the trust managers of the real estate investment trust if the
distribution or the share dividend is made not later than the
120th day after the date of authorization; or
(2) if the distribution or the share dividend is made more than
120 days after the date of authorization:
(A) on the date designated by the trust managers if the date so
designated is not earlier than 120 days before the date the
distribution or the share dividend is made; or
(B) on the date the distribution or the share dividend is made
if the trust managers do not designate a date as described in
Paragraph (A).
(b) For purposes of this section, a distribution that involves:
(1) the incurrence by a real estate investment trust of
indebtedness or a deferred payment obligation is considered to
have been made on the date the indebtedness or obligation is
incurred; or
(2) a contract by the real estate investment trust to acquire
any of its own shares is considered to have been made on the date
when the contract is made or takes effect or on the date the
shares are acquired, at the option of the real estate investment
trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.211. SPLIT-UP OR DIVISION OF SHARES. The trust
managers of a real estate investment trust may authorize the real
estate investment trust to carry out any split-up or division of
the issued shares of a class of the real estate investment trust
into a larger number of shares within the same class that does
not increase the stated capital of the real estate investment
trust because the split-up or division of issued shares is not a
share dividend or a distribution.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
SUBCHAPTER F. SHAREHOLDERS' MEETINGS; VOTING AND QUORUM
Sec. 200.251. ANNUAL MEETING. (a) An annual meeting of the
shareholders of a real estate investment trust shall be held at a
time that is stated in or set in accordance with the bylaws of
the real estate investment trust.
(b) If the annual meeting is not held at the designated time, a
shareholder may by certified or registered mail make a written
request to an officer or trust manager of the real estate
investment trust that the meeting be held within a reasonable
time. If the annual meeting is not called before the 61st day
after the date the request calling for a meeting is made, any
shareholder may bring suit at law or in equity to compel the
meeting to be held.
(c) Each shareholder has a justifiable interest sufficient to
enable the shareholder to institute and prosecute a legal
proceeding described by this section.
(d) The failure to hold an annual meeting at the designated time
does not result in the winding up or termination of the real
estate investment trust.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.252. SPECIAL MEETINGS. A special meeting of the
shareholders of a real estate investment trust may be called by:
(1) a trust manager, an officer of the real estate investment
trust, or any other person authorized to call special meetings by
the certificate of formation or bylaws of the real estate
investment trust; or
(2) the holders of at least 10 percent of all of the shares of
the real estate investment trust entitled to vote at the proposed
special meeting unless a greater or lesser percentage of shares
is specified in the certificate of formation, not to exceed 50
percent of the shares entitled to vote.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.253. NOTICE OF MEETING. (a) Written notice of a
meeting in accordance with Section 6.051 shall be given to each
shareholder entitled to vote at the meeting not later than the
10th day and not earlier than the 60th day before the date of the
meeting. Notice shall be given in person or by mail by or at the
direction of a trust manager, officer, or other person calling
the meeting.
(b) The notice of a special meeting must contain a statement
regarding the purpose or purposes of the meeting.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.254. CLOSING OF SHARE TRANSFER RECORDS. Share transfer
records that are closed in accordance with Section 6.101 for the
purpose of determining which shareholders are entitled to receive
notice of a meeting of shareholders shall remain closed for at
least 10 days immediately preceding the date of the meeting.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.255. RECORD DATE FOR WRITTEN CONSENT TO ACTION. The
record date provided in accordance with Section 6.102(a) may not
be more than 10 days after the date on which the trust managers
adopt the resolution setting the record date.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.256. RECORD DATE FOR PURPOSE OTHER THAN WRITTEN CONSENT
TO ACTION. The record date provided by the trust managers in
accordance with Section 6.101 must be at least 10 days before the
date on which the particular action requiring the determination
of shareholders is to be taken.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.257. QUORUM. (a) Subject to Subsection (b), the
holders of the majority of the shares entitled to vote at a
meeting of the shareholders of a real estate investment trust
that are present or represented by proxy at the meeting are a
quorum for the consideration of a matter to be presented at that
meeting.
(b) The certificate of formation of a real estate investment
trust may provide that a quorum is present only if:
(1) the holders of a specified portion of the shares that is
greater than the majority of the shares entitled to vote are
represented at the meeting in person or by proxy; or
(2) the holders of a specified portion of the shares that is
less than the majority but not less than one-third of the shares
entitled to vote are represented at the meeting in person or by
proxy.
(c) Unless provided by the certificate of formation or bylaws of
the real estate investment trust, after a quorum is present at a
meeting of shareholders, the shareholders may conduct business
properly brought before the meeting until the meeting is
adjourned. The subsequent withdrawal from the meeting of a
shareholder or the refusal of a shareholder present at or
represented by proxy at the meeting to vote does not negate the
presence of a quorum at the meeting.
(d) Unless provided by the certificate of formation or bylaws,
the shareholders of the real estate investment trust at a meeting
at which a quorum is not present may adjourn the meeting until
the time and to the place as may be determined by a vote of the
holders of the majority of the shares who are present or
represented by proxy at the meeting.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.258. VOTING IN ELECTION OF TRUST MANAGERS. (a)
Subject to Subsection (b), trust managers of a real estate
investment trust shall be elected by two-thirds of the votes cast
by the holders of shares entitled to vote in the election of
trust managers at a meeting of shareholders at which a quorum is
present.
(b) The certificate of formation or bylaws of a real estate
investment trust may provide that a trust manager of the real
estate investment trust shall be elected only if the trust
manager receives:
(1) the vote of the holders of a specified portion, but not less
than the majority, of the shares entitled to vote in the election
of trust managers;
(2) the vote of the holders of a specified portion, but not less
than the majority, of the shares entitled to vote in the election
of trust managers and represented in person or by proxy at a
meeting of shareholders at which a quorum is present; or
(3) the vote of the holders of a specified portion, but not less
than the majority, of the votes cast by the holders of shares
entitled to vote in the election of trust managers at a meeting
of shareholders at which a quorum is present.
(c) Subject to Section 200.259, at each election of trust
managers of a real estate investment trust, each shareholder
entitled to vote at the election is entitled to vote, in person
or by proxy, the number of shares owned by the shareholder for as
many candidates as there are trust managers to be elected and for
whose election the shareholder is entitled to vote.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.259. CUMULATIVE VOTING IN ELECTION OF TRUST MANAGERS.
(a) Cumulative voting is allowed only if specifically authorized
by the certificate of formation of a real estate investment
trust.
(b) Cumulative voting occurs when a shareholder:
(1) gives one candidate as many votes as the total of the number
of the trust managers to be elected multiplied by the
shareholder's shares; or
(2) distributes the votes among one or more candidates using the
same principle.
(c) If cumulative voting is specifically authorized by the
certificate of formation, a shareholder who intends to cumulate
votes must give written notice of that intention to the trust
managers on or before the day preceding the date of the election
at which the shareholder intends to cumulate votes.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.260. VOTING ON MATTERS OTHER THAN ELECTION OF TRUST
MANAGERS. (a) Subject to Subsection (b), with respect to a
matter other than the election of trust managers or a matter for
which the affirmative vote of the holders of a specified portion
of the shares entitled to vote is required by this code, the
affirmative vote of the holders of the majority of the shares
entitled to vote on, and who voted for, against, or expressly
abstained with respect to, the matter at a shareholders' meeting
of a real estate investment trust at which a quorum is present is
the act of the shareholders.
(b) With respect to a matter other than the election of trust
managers or a matter for which the affirmative vote of the
holders of a specified portion of the shares entitled to vote is
required by this code, the certificate of formation or bylaws of
a real estate investment trust may provide that the act of the
shareholders of the real estate investment trust is:
(1) the affirmative vote of the holders of a specified portion,
but not less than the majority, of the shares entitled to vote on
that matter;
(2) the affirmative vote of the holders of a specified portion,
but not less than the majority, of the shares entitled to vote on
that matter and represented in person or by proxy at a
shareholders' meeting at which a quorum is present;
(3) the affirmative vote of the holders of a specified portion,
but not less than the majority, of the shares entitled to vote
on, and who voted for or against, the matter at a shareholders'
meeting at which a quorum is present; or
(4) the affirmative vote of the holders of a specified portion,
but not less than the majority, of the shares entitled to vote
on, and who voted for, against, or expressly abstained with
respect to, the matter at a shareholders' meeting at which a
quorum is present.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.261. VOTE REQUIRED TO APPROVE FUNDAMENTAL ACTION. (a)
In this section, a "fundamental action" means:
(1) an amendment of a certificate of formation, including an
amendment required for cancellation of an event requiring winding
up in accordance with Section 11.152(b);
(2) a voluntary winding up under Chapter 11;
(3) a revocation of a voluntary decision to wind up under
Section 11.151;
(4) a cancellation of an event requiring winding up under
Section 11.152(a); or
(5) a reinstatement under Section 11.202.
(b) Except as otherwise provided by this code or the certificate
of formation or bylaws of a real estate investment trust in
accordance with Section 200.260, the vote required for approval
of a fundamental action by the shareholders is the affirmative
vote of the holders of at least two-thirds of the outstanding
shares entitled to vote on the fundamental action.
(c) If a class or series of shares is entitled to vote as a
class or series on a fundamental action, the vote required for
approval of the action by the shareholders is the affirmative
vote of the holders of at least two-thirds of the outstanding
shares in each class or series of shares entitled to vote on the
action as a class and at least two-thirds of the outstanding
shares otherwise entitled to vote on the action. Shares entitled
to vote as a class or series shall be entitled to vote only as a
class or series unless otherwise entitled to vote on each matter
generally or otherwise provided by the certificate of formation.
(d) Unless an amendment to the certificate of formation is
undertaken by the trust managers under Section 200.103, separate
voting by a class or series of shares of a real estate investment
trust is required for approval of an amendment to the certificate
of formation that would result in:
(1) the increase or decrease of the aggregate number of
authorized shares of the class or series;
(2) the increase or decrease of the par value of the shares of
the class, including changing shares with par value into shares
without par value or changing shares without par value into
shares with par value;
(3) effecting an exchange, reclassification, or cancellation of
all or part of the shares of the class or series;
(4) effecting an exchange or creating a right of exchange of all
or part of the shares of another class or series into the shares
of the class or series;
(5) the change of the designations, preferences, limitations, or
relative rights of the shares of the class or series;
(6) the change of the shares of the class or series, with or
without par value, into the same or a different number of shares,
with or without par value, of the same class or series or another
class or series;
(7) the creation of a new class or series of shares with rights
and preferences equal, prior, or superior to the shares of the
class or series;
(8) increasing the rights and preferences of a class or series
with rights and preferences equal, prior, or superior to the
shares of the class or series;
(9) increasing the rights and preferences of a class or series
with rights or preferences later or inferior to the shares of the
class or series in such a manner that the rights or preferences
will be equal, prior, or superior to the shares of the class or
series;
(10) dividing the shares of the class into series and setting
and determining the designation of the series and the variations
in the relative rights and preferences between the shares of the
series;
(11) the limitation or denial of existing preemptive rights or
cumulative voting rights of the shares of the class or series; or
(12) canceling or otherwise affecting the dividends on the
shares of the class or series that have accrued but have not been
declared.
(e) Unless otherwise provided by the certificate of formation,
if the holders of the outstanding shares of a class that is
divided into series are entitled to vote as a class on a proposed
amendment that would affect equally all series of the class,
other than a series in which no shares are outstanding or a
series that is not affected by the amendment, the holders of the
separate series are not entitled to separate class votes.
(f) Unless otherwise provided by the certificate of formation, a
proposed amendment to the certificate of formation that would
solely effect changes in the designations, preferences,
limitations, or relative rights, including voting rights, of one
or more series of shares of the real estate investment trust that
have been established under the authority granted to the trust
managers in the certificate of formation in accordance with
Section 200.103 does not require the approval of the holders of
the outstanding shares of a class or series other than the
affected series if, after giving effect to the amendment:
(1) the preferences, limitations, or relative rights of the
affected series may be set and determined by the trust managers
with respect to the establishment of a new series of shares under
the authority granted to the trust managers in the certificate of
formation in accordance with Section 200.103; or
(2) any new series established as a result of a reclassification
of the affected series are within the preferences, limitations,
and relative rights that are described by Subdivision (1).
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
688, Sec. 132, eff. September 1, 2007.
Sec. 200.262. CHANGES IN VOTE REQUIRED FOR CERTAIN MATTERS. (a)
With respect to a matter for which the affirmative vote of the
holders of a specified portion of the shares entitled to vote is
required by this code, the certificate of formation of a real
estate investment trust may provide that the affirmative vote of
the holders of a specified portion, but not less than the
majority, of the shares entitled to vote on that matter is
required for shareholder action on that matter.
(b) With respect to a matter for which the affirmative vote of
the holders of a specified portion of the shares of a class or
series is required by this code, the certificate of formation may
provide that the affirmative vote of the holders of a specified
portion, but not less than the majority, of the shares of that
class or series is required for action of the holders of shares
of that class or series on that matter.
(c) If a provision of the certificate of formation provides that
the affirmative vote of the holders of a specified portion that
is greater than the majority of the shares entitled to vote on a
matter is required for shareholder action on that matter, the
provision may not be amended, directly or indirectly, without the
same affirmative vote unless otherwise provided by the
certificate of formation.
(d) If a provision of the certificate of formation provides that
the affirmative vote of the holders of a specified portion that
is greater than the majority of the shares of a class or series
is required for shareholder action on a matter, the provision may
not be amended, directly or indirectly, without the same
affirmative vote unless otherwise provided by the certificate of
formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.263. NUMBER OF VOTES PER SHARE. (a) Except as
provided by the certificate of formation of a real estate
investment trust or this title or Title 1, each outstanding
share, regardless of class, is entitled to one vote on each
matter submitted to a vote at a shareholders' meeting.
(b) If the certificate of formation provides for more or less
than one vote per share on a matter for all of the outstanding
shares or for the shares of a class or series, each reference in
this code or in the certificate of formation or bylaws, unless
expressly stated otherwise, to a specified portion of the shares
with respect to that matter refers to the portion of the votes
entitled to be cast with respect to those shares under the
certificate of formation.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.264. VOTING IN PERSON OR BY PROXY. (a) A shareholder
may vote in person or by proxy executed in writing by the
shareholder.
(b) A telegram, telex, cablegram, or other form of electronic
transmission, including telephonic transmission, by the
shareholder, or a photographic, photostatic, facsimile, or
similar reproduction of a writing executed by the shareholder, is
considered an execution in writing for purposes of this section.
Any electronic transmission must contain or be accompanied by
information from which it can be determined that the transmission
was authorized by the shareholder.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.265. TERM OF PROXY. A proxy is not valid after 11
months after the date the proxy is executed unless otherwise
provided by the proxy.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.266. REVOCABILITY OF PROXY. (a) In this section, a
"proxy coupled with an interest" includes the appointment as
proxy of:
(1) a pledgee;
(2) a person who purchased or agreed to purchase the shares
subject to the proxy;
(3) a person who owns or holds an option to purchase the shares
subject to the proxy;
(4) a creditor of the real estate investment trust who extended
the real estate investment trust credit under terms requiring the
appointment;
(5) an employee of the real estate investment trust whose
employment contract requires the appointment; or
(6) a party to a voting agreement created under Section 6.252.
(b) A proxy is revocable unless:
(1) the proxy form conspicuously states that the proxy is
irrevocable; and
(2) the proxy is coupled with an interest.
Acts 2003, 78th Leg., ch. 182, Sec. 1, eff. Jan. 1, 2006.
Sec. 200.267. ENFORCEABILITY OF PROXY. (a) An irrevocable
proxy is specifically enforceable against the holder of shares or
any successor or transferee of the holder if:
(1) the proxy is noted conspicuously on the certificate
representing t