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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 2, 1996
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PARKWAY PROPERTIES, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Maryland
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(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
0-12505 74-2123597
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(COMMISSION FILE NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NO.)
300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(601) 948-4091
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REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE
The Parkway Company
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 5. OTHER EVENTS.
On August 2, 1996, The Parkway Company, a Texas corporation, merged
with and into its recently organized, wholly-owned subsidiary, Parkway
Properties, Inc., a Maryland corporation, pursuant to the Agreement and Plan of
Merger dated as of July 17, 1996. As a result of the merger, each stockholder
received one share of common stock of Parkway Properties, Inc. in exchange for
one share of common stock of The Parkway Company. Additionally, Parkway
Properties, Inc. succeeded to all the rights and properties, and became subject
to all the obligations and liabilities, of The Parkway Company.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
The following documents are filed as exhibits to this Current Report:
1. Agreement and Plan of Merger dated as of July 17, 1996 by and
between The Parkway Company and Parkway Properties, Inc.
2. Articles of Incorporation of Parkway Properties, Inc.
3. Bylaws of Parkway Properties, Inc.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: August 5, 1996 PARKWAY PROPERTIES, INC.
(Registrant)
By: /s/Sarah P. Clark
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Sarah P. Clark,
Vice President, Chief Financial
Officer, Treasurer and Secretary
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EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") dated as of
July 17, 1996, is entered into by and between PARKWAY PROPERTIES, INC., a
Maryland corporation (the "Sub") and THE PARKWAY COMPANY, a Texas corporation
(the "Company").
RECITALS
1. The Sub is a corporation duly organized on May 17, 1996, and existing
under the laws of the State of Maryland. The principal office of the Sub in
Maryland is c/o The Corporation Company Incorporated, 32 South Street,
Baltimore, Baltimore City County, Maryland 21202.
2. The Company is a corporation duly organized on August 22, 1980 and
existing under the general laws of the State of Texas. The Company is not
registered as qualified to do business in Maryland. The Company has no principal
office in Maryland. The Company owns an interest in land in Talbot County,
Maryland.
3. On the date of this Merger Agreement, the Company has authority to issue
15,000,000 shares consisting of 5,000,000 shares of preferred stock, $10.00 par
value per share, and 10,000,000 shares of common stock, $1.00 par value per
share (the "Shares").
4. On the date of this Merger Agreement, the Sub has authority to issue
100,000,000 shares consisting of 70,000,000 shares of common stock, $.001 par
value per share ("Common Stock"), and 30,000,000 shares of excess stock, $.001
par value per share ("Excess Stock").
5. Sub and the Company agree to merge. The Boards of Directors of the Sub
and the Company have determined that it is advisable and in the best interests
of the stockholders that the Company merge with and into the Sub upon the terms
and subject to the conditions of this Merger Agreement for the purpose of
effecting the reincorporation of the Company in the State of Maryland.
6. The Boards of Directors of the Sub and the Company have, by resolutions
duly adopted by unanimous written consent pursuant to the Maryland Corporations
and Associations Code Section 2-408(c) and pursuant to the Texas Business
Corporation Act Section 9.10(B), respectively, approved this Merger Agreement.
The Company has approved this Merger Agreement as the sole stockholder of the
Sub by unanimous written consent pursuant to the Maryland Corporations and
Associations Code Section 2-505. The Company's Board of Directors has directed
that this Merger Agreement be submitted to a vote of its shareholders, 66 2/3%
of whom must approve this Merger Agreement for it to become effective.
7. The parties intend by this Merger Agreement to effect a "reorganization"
under Section 368 of the Internal Revenue Code of 1986, as amended.
AGREEMENT
In consideration of the promises and agreements set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. MERGER. The Company shall be merged with and into the Sub (the
"Merger"), and the Sub shall be the surviving corporation (hereinafter sometimes
referred to as the "Surviving Corporation"). The name of
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the Surviving Corporation shall be Parkway Properties, Inc., which is the name
currently set forth in the Articles of Incorporation, as amended (the "Charter")
of the Sub. The Merger shall become effective at 5:00 p.m. on ,
1996.
2. GOVERNING DOCUMENTS.
(a) The Charter of the Sub, as it may be amended or restated, and as in
effect immediately prior to the Effective Time, shall be the Charter of the
Surviving Corporation without further change or amendment until thereafter
amended in accordance with the provisions thereof and applicable law.
(b) The Bylaws of the Sub as in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof and
applicable law.
3. OFFICERS AND DIRECTORS. The persons who are executive officers of the
Sub immediately prior to the Effective Time shall, after the Effective Time, be
the executive officers of the Surviving Corporation, without change until their
successors have been duly elected and qualified. The directors named in the
Sub's Charter will serve as directors of the Surviving Corporation.
4. SUCCESSION. At the Effective Time, the separate corporate existence of
the Company shall cease, and the Surviving Corporation shall possess all the
rights, privileges, powers and franchise of a public and private nature and be
subject to all the restrictions, disabilities and duties of the Company; and all
rights, privileges, powers and franchises of the Company, and all property,
real, personal and mixed, and all debts due to the Company on whatever account,
as well as for Share subscriptions and all other things in action, shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter the
property of the Surviving Corporation as they were of the Company, and the title
to any real estate vested by deed or otherwise shall not revert or be in any way
impaired by reason of the Merger; but all rights of creditors and all liens upon
any property of the Company shall be preserved unimpaired, and all debts,
liabilities and duties of the Company shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it. The employees and
agents of the Company shall become the employees and agents of the Surviving
Corporation and shall continue to be entitled to the same rights and benefits
which they enjoyed as employees and agents of the Company.
5. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of the Company such deeds, assignments and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Company and otherwise to
carry out the purposes of this Merger Agreement, and the officers and directors
of the Surviving Corporation are fully authorized in the name and on behalf of
the Company or otherwise, to take any and all such action and to execute and
deliver any and all such deeds, assignments and other instruments.
6. CAPITAL STOCK. The total number of shares of all classes which the Sub
has authority to issue is 100,000,000 shares, 70,000,000 of which are initially
classified as Common Stock, par value $0.001 per share, and 30,000,000 of which
are initially classified as Excess Stock, par value $0.001 per share, with
authority in the Board of Directors to classify and reclassify any unissued
shares. The aggregate par value of all the shares of stock of all classes of the
Sub is $1,000,000. The total number of shares of stock of all classes which the
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Company has authority to issue is 15,000,000 shares, 5,000,000 of which are
classified as preferred stock, par value $10.00 per share, and 10,000,000 of
which are classified as common stock, par value $1.00 per share. The aggregate
par value of all the shares of stock of all classes of the Company is
$60,000,000.
7. CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger and
without, any action on the part of the holder thereof:
(a) Each Share outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be one fully paid and nonassessable share
of Common Stock.
(b) The 100 shares of Common Stock issued and outstanding in the name of
the Company shall be cancelled and retired and resume the status of authorized
and unissued shares of Common Stock.
8. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented Shares shall be deemed for all purposes to evidence ownership of,
and to represent shares of, Common Stock into which the Shares formerly
represented by such certificates have been converted as herein provided. The
registered owner on the books and records of the Company or its transfer agent
of any such outstanding stock certificate shall, until such certificate shall
have been surrendered for transfer or otherwise accounted for to the Surviving
Corporation or its transfer agent, have and be entitled to exercise any voting
and other rights with respect to and to receive any dividends and other
distributions upon the shares of Common Stock evidenced by such outstanding
certificate as provided above.
9. CONDITIONS. Consummation of the Merger and related transactions is
subject to satisfaction of the following conditions prior to the Effective Time:
(a) The Merger shall have been approved by the requisite number of holders
of Shares and the Common Stock and all necessary action shall have been taken to
authorize the execution, delivery and performance of this Merger Agreement by
the Company and the Sub.
(b) All regulatory approvals necessary in connection with the consummation
of the Merger and the transactions contemplated thereby shall have been
obtained.
(c) No suit, action, proceeding or other litigation shall have been
commenced or threatened to be commenced which, in the opinion of the Company or
the Sub would pose a material restriction on or impair consummation of the
Merger, performance of this Merger Agreement or the conduct of the business of
the Sub after the Effective Time, or create a risk of subjecting the Company or
the Sub, or their respective shareholders, officers, or directors, to material
damages, costs, liability or other relief in connection with the Merger or this
Merger Agreement.
(d) The shares of Common Stock to be issued or reserved for issuance shall,
if required, have been approved for listing on the New York Stock Exchange or
such other national securities exchange or national market system as the Board
of Directors of the Sub may designate, upon official notice of issuance by such
exchange.
10. GOVERNING LAW. This Merger Agreement was negotiated in and is
performable in the State of Texas and shall be governed by and construed in
accordance with the laws of the State of Texas applicable to contracts entered
into and to be performed within the State of Texas, except to the extent that
the laws of the State of Maryland are mandatorily applicable to the Merger.
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11. AMENDMENT. Subject to applicable law and subject to the rights of the
shareholders further to approve any amendment which would have a material
adverse effect on the shareholders, this Merger Agreement may be amended,
modified or supplemented by written agreement of the parties hereto at any time
prior to the Effective Time with respect to any of the terms contained herein.
12. DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time and in
accordance with the provisions of Maryland and Texas law, this Merger Agreement
may be terminated and the Merger may be abandoned or the time of consummation of
the Merger may be deferred for a reasonable time by the Board of Directors of
the Sub or the Board of Directors of the Company or both, notwithstanding
approval of this Merger Agreement by the shareholders of the Company or of the
Sub, or both, if circumstances arise which, in the opinion of the Board of
Directors of the Sub or the Board of Directors of the Company, make the Merger
inadvisable or such deferral of the time of consummation advisable.
13. COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts each of which when taken alone shall constitute an original
instrument and when taken together shall constitute but one and the same
Agreement.
14. ASSURANCES. The Company and the Sub agree to execute any and all
documents, and to perform such other acts, which may be necessary or expedient
to further the purposes of this Merger Agreement.
IN WITNESS WHEREOF, the Company and the Sub have caused this Merger
Agreement to be signed by their respective duly authorized officers and
delivered this day of July 17, 1996.
THE PARKWAY COMPANY
By: /s/ Steven G. Rogers
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Steven G. Rogers, President
PARKWAY PROPERTIES, INC.
By: /s/ Steven G. Rogers
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Steven G. Rogers, President
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THE UNDERSIGNED, President of PARKWAY PROPERTIES, INC., a Maryland
corporation, who executed on behalf of the Corporation the foregoing Agreement
and Plan of Merger of which this certificate is made a part, hereby acknowledges
in the name and on behalf of said Corporation the foregoing Agreement and Plan
of Merger to be the corporate act of said Corporation and hereby certifies that
to the best of his knowledge, information and belief the matters and facts set
forth therein with respect to the authorization and approval thereof are true in
all material respects under the penalties of perjury.
By: /s/ Steven G. Rogers
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Steven G. Rogers, President
THE UNDERSIGNED, President of THE PARKWAY COMPANY, a Texas corporation, who
executed on behalf of the Corporation the foregoing Agreement and Plan of Merger
of which this certificate is made a part, hereby acknowledges in the name and on
behalf of said Corporation the foregoing Agreement and Plan of Merger to be the
corporate act of said Corporation and hereby certifies that to the best of his
knowledge, information and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects under the penalties of perjury.
By: /s/ Steven G. Rogers
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Steven G. Rogers, President
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EXHIBIT 2
ARTICLES OF INCORPORATION
OF
PARKWAY PROPERTIES, INC.
The undersigned, being a natural person and acting as incorporator, does
hereby form a business corporation in the State of Maryland, pursuant to the
provisions of the Maryland General Corporation Law.
ARTICLE I
INCORPORATOR
The name of the incorporator is Richard C. Leska.
The incorporator's address, including the street and number, if any,
including the county or municipal area, and including the state or county, is:
800 Fleet Bank Building, Twelve Fountain Plaza, Buffalo, New York 14202.
The incorporator is at least eighteen years of age.
The incorporator is forming the corporation named in this Charter under the
general laws of the State of Maryland, to wit, the Maryland General Corporation
Law.
ARTICLE II
NAME
The name of the corporation (hereinafter, the "Corporation") is
PARKWAY PROPERTIES, INC.
ARTICLE III
PURPOSES
The purpose for which the Corporation is formed is to engage in any lawful
act or activity for which corporations may be organized under the general laws
of the State of Maryland now or hereafter in force. Subject to, and not in
limitation of the authority of the preceding sentence, the Corporation intends
to qualify as a real estate investment trust (a "REIT") under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended, or any successor
statute (the "Code") not later than the taxable year that begins January 1,
1998, and intends to remain so qualified unless and until the Board of Directors
shall have determined that it is no longer in the best interests of the
Corporation to engage in such business, and shall have taken the action
contemplated in such event by Section 3 of Article VII hereof.
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ARTICLE IV
PRINCIPAL OFFICE IN MARYLAND
AND RESIDENT AGENT
The address of the principal office of the Corporation in the State of
Maryland is c/o The Corporation Trust Incorporated, 32 South Street, 2nd Floor,
Baltimore, Maryland 21202. The name of the resident agent of the Corporation in
the State of Maryland is The Corporation Trust Incorporated, a Maryland
corporation, 32 South Street, 2nd Floor, Baltimore, Maryland 21202.
ARTICLE V
CAPITAL STOCK
SECTION 1. AUTHORIZED CAPITAL STOCK.
(a) Authorized Shares. The total number of shares of capital stock of all
classes that the Corporation has authority to issue is 100,000,000, initially
classified as
(i) 70,000,000 shares of Common Stock, par value $.001 per share (the
"Common Stock"); and
(ii) 30,000,000 shares of Excess Stock, par value $.001 per share (the
"Excess Stock").
The Common Stock and the Excess Stock shall each constitute a separate
class of capital stock of the Corporation.
(b) Terminology and Aggregate Par Value. All classes of capital stock
(except Excess Stock) are referred to herein as "Equity Stock"; all classes of
capital stock (including Excess Stock) are referred to herein as "Stock". The
aggregate par value of all of the Corporation's authorized Stock is $100,000.
SECTION 2. REIT-RELATED RESTRICTIONS AND LIMITATIONS ON THE EQUITY STOCK.
Until the "Restriction Termination Date," as defined below, all Equity
Stock shall be subject to the following restrictions and limitations intended to
preserve the Corporation's status as a REIT:
(a) Definitions. As used in this Article V, the following terms shall have
the indicated meanings:
"Beneficial Ownership" shall mean ownership of Equity Stock by a
Person who would be treated as an owner of such Equity Stock under Section
542(a)(2) of the Code either directly or constructively through the
application of Section 544 of the Code, as modified by Section 856(h)(1)(B)
of the Code. The terms "Beneficially Own" and "Beneficially Owned" and
"Beneficial Owner" shall have the correlative meanings.
"Beneficiary" shall mean the beneficiary of the Trust as determined
pursuant to Section 5(b) of this Article V.
"Constructive Ownership" shall mean ownership of Equity Stock by a
Person who would be treated as an owner of such Equity Stock either
directly or constructively through the application of Section 318 of the
Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructively Own," "Constructively Owned" and "Constructive Owner" shall
have the correlative meanings.
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"Market Price" shall mean the last reported sales price reported on
the NASDAQ National Market of Equity Stock on the trading day immediately
preceding the relevant date, or if not then traded on the NASDAQ National
Market, the last reported sales price of Equity Stock on the trading day
immediately preceding the relevant date as reported on any exchange or
quotation system over which Equity Stock may be traded, or if not then
traded over any exchange or quotation system, then the Market Price of
Equity Stock on the relevant date as determined in good faith by the Board
of Directors of the Corporation.
"Ownership Limit" shall mean 9.8% in value or in number of the
outstanding Equity Stock, whichever is more restrictive. The number and
value of the Equity Stock of the Corporation shall be determined by the
Board of Directors in good faith, which determination shall be conclusive
for all purposes.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of
the Code), a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity; but does not include an
underwriter that participated in a public offering of any Equity Stock for
a period of 25 days following the purchase by such underwriter of such
Equity Stock.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer that results in Excess Stock as defined below in Section
5 of this Article V, the purported beneficial transferee for whom the
Purported Record Transferee would have acquired Equity Stock if such
Transfer had been valid under Section 2(b) of this Article V.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Excess Stock, the Person who would have
been the record holder of Equity Stock if such Transfer had been valid
under Section 2(b) of this Article V.
"Restriction Termination Date" shall mean the effective date, if any,
for revocation or termination of the Corporation's REIT election pursuant
to Section 856(g) of the Code, as specified in a resolution of the Board of
Directors of the Corporation determining that it is no longer in the best
interests of the Corporation to attempt to, or continue to, qualify as a
REIT. If no such effective date is specified in such resolution, the
Restriction Termination Date shall be the date such revocation or
termination otherwise becomes effective. The Restriction Termination Date
shall also be deemed to have occurred if the Corporation has not elected to
qualify as REIT under the Code effective for the taxable year that begins
January 1, 1998.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of Equity Stock (including (i) the granting of any option
or entering into any agreement for the sale, transfer or other disposition
of Equity Stock or (ii) the sale, transfer, assignment or other disposition
of any securities or rights convertible into or exchangeable for Equity
Stock), whether voluntary or involuntary, whether of record of Beneficially
or Constructively (including but not limited to transfers of interests in
other entities that result in changes in Beneficial Ownership or
Constructive Ownership of Equity Stock), and whether by operation of law or
otherwise. The terms "Transfers" and "Transferred" shall have the
correlative meanings.
"Trust" shall mean the trust created pursuant to Section 5(b) of this
Article V.
"Trustee" shall mean the Corporation as trustee of the Trust, and any
successor trustee appointed by the Corporation.
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(b) Ownership Limitation and Transfer Restrictions with Respect to Equity
Stock.
(i) Except as provided in Section 2(f) of this Article V, prior to the
Restriction Termination Date, no Person shall Beneficially Own or
Constructively Own Equity Stock in excess of the Ownership Limit.
(ii) Except as provided in Section 2(f) of this Article V, prior to
the Restriction Termination Date, any Transfer that, if effective would
result in any Person Beneficially Owning or Constructively Owning Equity
Stock in excess of the Ownership Limit shall be void ab initio as to the
Transfer of such Equity Stock that would be otherwise Beneficial Owned or
Constructively Owned (as the case may be) by such Person in excess of the
Ownership Limit; and the Purported Record Transferee (and the Purported
Beneficial Transferee, if different) shall acquire no rights in such Equity
Stock.
(iii) Except as provided in Section 2(f) of this Article V, prior to
the Restriction Termination Date, any Transfer that, if effective, would
result in the outstanding Equity Stock being Beneficially Owned by less
than 100 Persons (determined without reference to any rules of attribution)
shall be void ab initio as to the Transfer of such Equity Stock which would
be otherwise Beneficially Owned by the transferee; and the Purported Record
Transferee (and the Purported Beneficial Transferee, if different) shall
acquire no rights in such Equity Stock.
(iv) Prior to the Restriction Termination Date, any Transfer that, if
effective, would result in the Corporation being "closely held" within the
meaning of Section 856(h) of the Code, or would otherwise result in the
Corporation failing to qualify as a REIT, shall be void ab initio as to the
Transfer of the Equity Stock that would cause the Corporation to be
"closely held" within the meaning of Section 856(h) of the Code or
otherwise to fail to qualify as a REIT, as the case may be; and the
Purported Record Transferee (and the Purported Beneficial Transferee, if
different) shall acquire no rights in such Equity Stock.
(v) If the Board of Directors or its designee shall at any time
determine in good faith that a Transfer of Equity Stock has taken place in
violation of this Section 2(b) or that a Person intends to acquire or has
attempted to acquire beneficial ownership (determined without reference to
any rules of attribution), Beneficial Ownership or Constructive Ownership
of any Equity Stock of the Corporation in violation of this Section 2(b),
the Board of Directors or its designee shall take such action as it deems
advisable to refuse to give effect to or to prevent such Transfer,
including but not limited to, refusing to give effect to such Transfer on
the books of the Corporation or instituting proceedings to enjoin such
Transfer; provided, however; that any Transfers or attempted Transfers in
violation of Section 2(b)(ii), Section 2(b)(iii) or Section 2(b)(iv) of
this Article V shall automatically result in the conversion and exchange
described in Section 2(c), irrespective of any action (or non-action) by
the Board of Directors, except as provided in Section 2(f) of this Article
V.
(c) Automatic Conversion of Equity Stock into Excess Stock.
Subject to Section 5(a) below,
(i) If, notwithstanding the other provisions contained in this Article
V, at any time prior to the Restriction Termination Date there is a
purported Transfer or other change in the capital structure of the
Corporation such that any Person would Beneficially Own or Constructively
Own Equity Stock in excess of the Ownership Limit, then, except as
otherwise provided in Section 2(f) of this Article V, such Equity Stock in
excess of the Ownership Limit (rounded up to the nearest whole share) shall
automatically (and without action, by the Corporation or by any purported
Transferor, Purported Record Transferee or Purported Beneficial Transferee
of such Equity Stock, in the case of a Transfer) be converted into and
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exchanged for an equal number of Excess Stock. Such conversion and exchange
shall be effective as of the close of business on the business day prior to
the date of the purported Transfer or change in capital structure.
(ii) If, notwithstanding the other provisions in this Article V, at
any time prior to the Restriction Termination Date there is a purported
Transfer or other change in the capital structure of the Corporation that,
if effective, would cause the Corporation to become "closely held" within
the meaning of Section 856(h) of the Code or otherwise to fail to qualify
as a REIT, then the Equity Stock being Transferred, or resulting from any
other change in the capital structure of the Corporation, that would cause
the Corporation to be "closely held" within the meaning of Section 856(h)
of the Code or otherwise to fail to qualify as a REIT, as the case may be,
(rounded up to the nearest whole share) shall automatically (and without
any action by the Corporation or by any purported Transferor, Purported
Record Transferee or Purported Beneficial Transferee of such Equity Stock,
in the case of a Transfer) be converted into and exchanged for an equal
number of shares of Excess Stock. Such conversion and exchange shall be
effective as of the close of business on the business day prior to the date
of the purported Transfer or change in capital structure.
(d) The Corporation's Right to Redeem Stock. The Corporation shall have
the right to redeem any Stock that is Transferred, or are attempted to be
Transferred, in violation of Section 2(b) of this Article V, at a price per
share equal to the lesser of (i) the price per share in the transaction that
created such violation or attempted violation (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and (ii) the Market
Price of the class of Equity Stock to which such Stock relate on the date the
Corporation, or its designee, gives notice of such redemption. The Corporation
shall have the right to redeem any Stock described in this Section for a period
of 90 days after the later of (i) the date of the Transfer or attempted Transfer
and (ii) the date the Board of Directors determines in good faith that a
Transfer has occurred, if the Corporation does not receive a notice of such
Transfer pursuant to Section 2(e) of this Article V.
(e) Notice Requirements and General Authority of the Board of Directors to
Implement REIT-Related Restrictions and Limitations.
(i) Any Person who acquires or attempts to acquire Equity Stock in
violation of Section 2(b) of this Article V, and any Person who is a
Purported Record Transferee or a Purported Beneficial Transferee such that
the Equity Stock proposed to be acquired are converted into Excess Stock
under Section 2(c) of this Article V, shall immediately give written notice
or, in the event of a proposed or attempted Transfer, give at least 15
days' prior written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may
request in order to determine the effect, if any, of such Transfer or
attempted Transfer on the Corporation's status as a REIT.
(ii) Prior to the Restriction Termination Date every Beneficial Owner
or Constructive Owner of more than 5.0% (or such other percentage, between
0.5% and 5.0%, as provided in the income tax regulations promulgated under
the Code) of the number or value of outstanding Equity Stock of the
Corporation shall, within 30 days after January 1 of each year, give
written notice to the Corporation stating the name and address of such
Beneficial Owner or Constructive Owner, the number of Equity Stock
Beneficially or Constructively Owned, and a description of how such Stock
are held. Each such Beneficial Owner or Constructive Owner shall provide to
the Corporation such additional information that the Corporation may
reasonably request in order to determine the effect, if any, of such
Beneficial or Constructive Ownership on the Corporation's status as a REIT;
and
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(iii) Prior to the Restriction Termination Date each Person who is a
Beneficial Owner or Constructive Owner of Equity Stock and each Person
(including the stockholder of record) who is holding Equity Stock for a
Beneficial Owner or Constructive Owner shall provide to the Corporation
such information that the Corporation may reasonably request in order to
determine the Corporation's status as a REIT, to comply with the
requirements of any taxing authority or governmental agency or to determine
any such compliance.
(iv) Each certificate for Equity Stock shall bear substantially the
following legends:
"The Corporation will furnish to any stockholder on request and
without charge a full statement of the designations and any preferences,
conversion and other rights, voting powers, restrictions, limitations as
to dividends, qualifications, and terms and conditions of redemption of
the stock of each class which the Corporation is authorized to issue, of
the differences in the relative rights and preferences between the
shares of each series of a preferred or special class in series which
the Corporation is authorized to issue, to the extent they have been
set, and of the authority of the Board of Directors to set the relative
rights and preferences of subsequent series of a preferred or special
class of stock. Such request may be made to the secretary of the
Corporation or to its transfer agent."
"Keep this certificate in a safe place. If it is lost, stolen, or
destroyed, the Corporation will require a bond of indemnity as a
condition to the issuance of a replacement certificate."
"The securities represented by this certificate are subject to
restrictions on ownership and transfer for the purpose of the
Corporation's maintenance of its status as a "real estate investment
trust" under the Internal Revenue Code of 1986, as amended. Except as
otherwise provided pursuant to the Charter of the Corporation, no Person
may Beneficially Own or Constructively Own Equity Stock in excess of
9.8%, (in value or in number of shares of Equity Stock, whichever is
more restrictive) of the outstanding Equity Stock of the Corporation,
with further restrictions and exceptions set forth in the Charter of the
Corporation. Any Person who attempts or proposes to own, Beneficially
Own or Constructively Own Equity Stock in excess of the above limitation
must notify the Corporation in writing at least 15 days prior to such
proposed or attempted Transfer to such Person. If attempt is made to
violate these restrictions on Transfers, (i) any purported Transfer will
be void and will not be recognized by the Corporation, (ii) the
Corporation will have the right to redeem the Stock proposed to be
Transferred, and (iii) the Stock represented hereby will be
automatically converted into and exchanged for Excess Stock (having no
dividend or voting rights), which will be held in trust by the
Corporation. All capitalized terms in this legend have the meanings
defined in the Charter of the Corporation, a copy of which, including
the restrictions on ownership and transfer, will be sent without charge
to each stockholder who directs a request to the address above."
(v) Nothing contained in this Article V shall limit the authority of
the Board of Directors to take such other action as it deems necessary or
advisable to protect the Corporation and the interests of its stockholders
by preservation of the Corporation's status as a REIT.
(f) Exemptions.
(i) The Board of Directors, upon receipt of a ruling from the Internal
Revenue Service or an opinion of counsel or other evidence satisfactory to
the Board of Directors and upon at least 15 days' written notice from a
Transferee prior to a proposed Transfer that, if consummated, would result
in the
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intended Transferee Beneficially Owning Equity Stock in excess of the
Ownership Limit, and upon such other conditions as the Board of Directors
may direct, may in its sole and absolute discretion exempt a Person from
the Ownership Limit.
(ii) The Board of Directors, upon receipt of a ruling from the
Internal Revenue Service or an opinion of counsel or other evidence
satisfactory to the Board of Directors, may in its sole and absolute
discretion exempt a Person from the limitation on a Person Constructively
Owning Equity Stock in excess of the Ownership Limit, if (x) such Person
does not and represents that it will not own, directly or Constructively,
more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the
Code) in a tenant of the Corporation, (y) the Corporation obtains such
representations and undertakings from such Person as are reasonably
necessary to ascertain this fact and (z) such Person agrees that any
violation or attempted violation of such representations, undertakings and
agreement will result in such Equity Stock in excess of the Ownership Limit
being converted into and exchanged for Excess Stock in accordance with
Section 2(c) of this Article V.
(iii) Nothing in this Article V shall preclude the settlement of a
transaction entered into through the facilities of any interdealer
quotation system for national securities exchange upon which Equity Stock
are traded, provided that certain transactions may be settled by providing
Excess Stock as set forth in this Article V.
(iv) The ownership restrictions set forth in this Section 2 of this
Article V shall not apply until the effective date of the merger between
the Corporation and The Parkway Company, a Texas corporation.
SECTION 3. CLASSIFICATION AND RECLASSIFICATION OF STOCK.
(a) Power of Board to Classify or Reclassify Stock. The Board of Directors
shall have the power, in its sole discretion and without limitation, to classify
or reclassify any unissued Stock, whether now or hereafter authorized, by
setting, altering or eliminating in any one or more respects, from time to time,
before the issuance of such Stock, any feature of such Stock, including, but not
limited to, the designation, preferences, conversion or other rights, voting
powers, qualifications and terms and conditions of redemption of, and
limitations as to dividends and any other restrictions on, such Stock. The power
of the Board of Directors to classify and reclassify any of the shares of
capital stock shall include, without limitation, subject to the provisions of
the Charter, authority to classify or reclassify any unissued shares of such
stock into a class or classes of preferred stock, preference stock, special
stock or other stock, and to divide and classify shares of any class into one or
more series of such class, by determining, fixing, or altering one or more of
the following:
(i) The distinctive designation of such class or series and the number
of shares to constitute such class or series; provided that, unless
otherwise prohibited by the terms of such or any other class or series, the
number of shares of any class or series may be decreased by the Board of
Directors in connection with any classification or reclassification of
unissued shares and the number of shares of such class or series may be
increased by the Board of Directors in connection with any such
classification or reclassification, and any shares of any class or series
which have been redeemed, purchased, otherwise acquired or converted into
shares of Common stock or any other class or series shall become part of
the authorized capital stock and be subject to classification and
reclassification as provided in this subparagraph.
(ii) Whether or not and, if so, the rates, amounts and times at which,
and the conditions under which, dividends shall be payable on shares of
such class or series, whether any such dividends shall rank senior or
junior to or on a parity which the dividends payable on any other class or
series of stock, and the
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status of any such dividends as cumulative, cumulative to a limited extent
or non-cumulative and as participating or non-participating.
(iii) Whether or not shares of such class or series shall have voting
rights, in addition to any voting rights provided by law and, if so, the
terms of such voting rights.
(iv) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions
thereof, including provision for adjustment of the conversion or exchange
rate in such events or at such times as the Board of Directors shall
determine.
(v) Whether or not shares of such class or series shall be subject to
redemption and, if so, the terms and conditions of such redemption,
including the date or dates upon or after which they shall be redeemable
and the amount per share payable in case of redemption, which amount may
vary under different conditions and at different redemption dates; and
whether or not there shall be any sinking fund or purchase account in
respect thereof, and if so, the terms thereof.
(vi) The rights of the holders of shares of such class or series upon
the liquidation, dissolution or winding up of the affairs of, or upon any
distribution of the assets of, the Corporation, which rights may vary
depending upon whether such liquidation, dissolution or winding up is
voluntary or involuntary and, if voluntary, may vary at different dates,
and whether such rights shall rank senior or junior to or on a parity with
such rights of any other class or series of stock.
(vii) Whether or not there shall be any limitations applicable, while
shares of such class or series are outstanding, upon the payment of
dividends or making of distributions on, or the acquisition of, or the use
of moneys for purchase or redemption of, any stock of the Corporation, or
upon any other action of the Corporation, including action under this
subparagraph, and, if so, the terms and conditions thereof.
(viii) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such class
or series, not inconsistent with law and the Charter of the Corporation.
(b) Ranking of Stock. For the purposes hereof and of any articles
supplementary to the Charter providing for the classification or
reclassification of any shares of capital stock or of any other charter document
of the Corporation (unless otherwise provided in any such articles or document),
any class or series of stock of the Corporation shall be deemed to rank:
(i) Prior to another class or series either as to dividends or upon
liquidation, if the holders of such class or series shall be entitled to
the receipt of dividends or of amounts distributable on liquidation,
dissolution or winding up, as the case may be, in preference or priority to
holders of such other class or series.
(ii) On a parity with another class or series either as to dividends
or upon liquidation, whether or not the dividend rates, dividend payment
dates or redemption or liquidation price per share thereof be different
from those of such others, if the holders of such class or series of stock
shall be entitled to receipt of dividends or amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion
to their respective dividend rates or redemption or liquidation prices,
without preference or priority over the holders of such other class or
series.
(iii) Junior to another class or series either as to dividends or upon
liquidation, if the rights of the holders of such class or series shall be
subject or subordinate to the rights of the holders of such other
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class or series in respect of the receipt of dividends or the amounts
distributable upon liquidation, dissolution or winding up, as the case may
be.
SECTION 4. COMMON STOCK.
Subject to the provisions of Sections 2 and 5 of this Article V, the Common
Stock shall have the following preferences, rights, powers, restrictions,
limitations and qualifications, and such others are may be afforded by law:
(a) Voting Rights. Except as may otherwise be required by law, and
subject to action, if any, by the Board of Directors, pursuant to Section 3
of this Article V, each holder of Common Stock shall have one vote in
respect of each Common Share held of record on all matters to be voted upon
by the stockholders.
(b) Dividend Rights. After provision(s) with respect to preferential
dividends on any then outstanding classes of preferred stock, if any, fixed
by the Board of Directors pursuant to Section 3 of this Article V, shall
have been satisfied, and after satisfaction of any other requirements, if
any, including with respect to redemption rights and preferences, in any
such classes of preferred stock, then and thereafter the holders of Common
Stock shall be entitled to receive, pro rata in relation to the number of
Common Stock held by them, such dividends as may be declared from time to
time by the Board of Directors out of funds legally available therefor.
(c) Liquidation Rights. In the event of the voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after
distribution in full of the preferential amounts, if any, fixed pursuant to
Section 3 of this Article V, to be distributed to the holders of any then
outstanding preferred stock, and subject to the right, if any, of the
holders of any outstanding preferred stock to participate further in any
liquidating distributions, all of the assets of the Corporation; if any,
remaining, of whatever kind available for distribution to stockholders
after the foregoing distributions have been made shall be distributed to
the holders of the Common Stock, ratably in proportion to the number of
Common Stock held by them. For purposes of making liquidating distributions
pursuant to this Section 4(c), Excess Stock shall be included as part of
the preferred stock and the Common Stock to the extent provided in Section
5(e) below.
(d) Conversion Rights. Each share of Common Stock is convertible into
Excess Stock as provided in Section 2(c) of this Article V.
SECTION 5. EXCESS STOCK.
(a) Condition to Issuance. The provisions of this Article V to the
contrary notwithstanding, and the automatic conversion and exchange of certain
Equity Stock into Excess Stock in the circumstances provided for in Section 2(c)
of this Article V shall be deemed not to have occurred, nunc pro tunc, if the
Corporation shall have determined, in the sole and absolute discretion of the
Board of Directors, that the issuance by the Corporation of Excess Stock would
cause the Corporation to fail to satisfy the organizational and operational
requirements that must be met to qualify for treatment as a REIT.
(b) Ownership of Excess Stock in Trust. Upon any purported Transfer that
results in Excess Stock pursuant to Section 2(c) of this Article V, such Excess
Stock shall not be issued in certificated form but shall be held by the
Corporation, in book entry form, as Trustee in trust (herein, the "Trust") for
the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest
in such Excess Stock may later be transferred pursuant to Section 5(f) of this
Article V. Excess Stock so held in trust shall be issued and outstanding Stock
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of the Corporation. The Purported Record Transferee shall have no rights in such
Excess Stock except the right to designate a transferee of such Excess Stock
upon the terms specified in Section 5(f) of this Article V. The Purported
Beneficial Transferee shall have no rights in such Excess Stock except as
provided in Section 5(f) of this Article V.
(c) No Voting Rights. Except as required by law, Excess Stock shall not be
entitled to vote on any matters.
(d) No Dividend Rights. Excess Stock shall not be entitled to any
dividends. Any dividend or distribution paid prior to the discovery by the
Corporation that Equity Stock have been converted into Excess Stock shall be
repaid to the Corporation upon demand.
(e) Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of, or any distribution of the assets of,
the Corporation, each holder of shares of Excess Stock shall be entitled to
receive that portion of the assets of the Corporation that would have been
distributed to the Equity Stock in respect of which the Excess Stock was issued.
The Corporation, as holder of the Excess Stock in trust or, if the Corporation
has been dissolved, any trustee appointed by the Corporation prior to its
dissolution, shall distribute ratably to the Beneficiaries of the Trust, when
determined, any such assets received in respect of the Excess Stock in any
liquidation, dissolution or winding up of, or any distribution of the assets of,
the Corporation.
(f) Restrictions on Transfer; Designation of Beneficiary.
(i) Excess Stock shall not be transferable. The Purported Record
Transferee may freely designate a Beneficiary of an interest in the Trust
(representing the number of Excess Stock held by the Trust attributable to
a purported Transfer that resulted in Excess Stock), if the Excess Stock
held in the Trust would not be Excess Stock in the hands of such
Beneficiary and the Purported Record Transferee does not receive a price
for designating such Beneficiary that reflects a price per Excess Share
that exceeds (x) the price per share such Purported Record Transferee paid
for the Equity Stock in the purported Transfer that resulted in the Excess
Stock, or (y) if the Purported Record Transferee did not give value for
such Excess Stock (through a gift, devise or other transaction), a price
per share equal to the Market Price on the date of the purported Transfer
that resulted in the Excess Stock. Upon such transfer of an interest in the
Trust, the corresponding Excess Stock in the Trust shall automatically be
exchanged for an equal number of Equity Stock, and such Equity Stock shall
be transferred of record to the transferee of the interest in the Trust if
such Equity Stock would not be Excess Stock in the hands of such
transferee. Prior to any transfer of any interest in the Trust, the
Purported Record Transferee must give advance notice to the Corporation of
the intended transfer and the Corporation must have waived in writing its
redemption rights under Section 2(d) of this Article V.
(ii) Notwithstanding the foregoing, if a Purported Record Transferee
receives a price for designating a Beneficiary of an interest in the Trust
that exceeds the amounts allowable under Section 5(f)(i) of this Article V,
such Purported Record Transferee shall pay, or cause such Beneficiary to
pay, such excess to the Corporation.
(g) Conversion Right. Each share of Excess Stock is convertible into
Equity Stock as provided in Section 2(c) of this Article V.
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SECTION 6. GENERAL PROVISIONS.
(a) Interpretation and Ambiguities. The Board of Directors shall have the
power to interpret and to construe the provisions of this Article V, including
any definition contained in Section 1, the Board of Directors shall have the
power to determine the application of the provisions of this Article V with
respect to any situation based on the facts known to it, and any such
interpretation, construction and determination shall be final and binding on all
interested parties, including the stockholders.
(b) Severability. If any provision of this Article V or any application of
any such provision is determined to be void, invalid or enforceable by any court
having jurisdiction over the issue, the validity and enforceability of the
remaining provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply with the
determination of such court.
ARTICLE VI
THE BOARD OF DIRECTORS
SECTION 1. AUTHORIZED NUMBER AND INITIAL DIRECTORS.
The business and affairs of the Corporation shall be managed by a Board of
Directors. The authorized number of directors of the Corporation initially shall
be ten, which number may be increased or decreased pursuant to the Bylaws of the
Corporation. The persons who shall serve as directors effectively immediately
and until the first annual meeting of stockholders and until their successors
are duly elected and qualify are as follows:
Daniel C. Arnold
George R. Farish
Roger P. Friou
Joe F. Lynch
C. Herbert Magruder
W. Lincoln Mossop, Jr.
Steven G. Rogers
Leland R. Speed
SECTION 2. GENERAL TERM OF OFFICE.
Each director shall serve for a term of one year and until such director's
successor is elected and qualified or until such director's death, retirement,
resignation or removal.
SECTION 3. REMOVAL OF DIRECTORS.
A director may be removed from office but only for cause and only by the
affirmative vote of the holders of at least a majority of the combined voting
power of all shares of capital stock entitled to be cast in the election of
directors voting together as a single class.
SECTION 4. FILLING VACANCIES.
Except as may otherwise be provided with respect to any rights of holders
of preferred stock to elect additional directors, or in any agreement relating
to the right to designate nominees for election to the Board of
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Directors, should a vacancy on the Board of Directors occur or be created
(whether arising through death, retirement, resignation or removal), other than
through an increase but not a decrease, in the number of authorized directors,
such vacancy shall be filled by the affirmative vote of a majority of the
remaining directors, even though less than a quorum of the Board of Directors. A
vacancy on the Board of Directors resulting from an increase in the number of
directors shall be filled by the affirmative vote of a majority of the entire
Board of Directors. By the vote required to elect a director, the stockholders
may fill any vacancy on the Board of Directors resulting from the removal of a
director.
SECTION 5. BOARD AUTHORIZATION OF SHARE ISSUANCES.
The Board of Directors of the Corporation may authorize the issuance from
time to time of Stock of any class, whether now or hereafter authorized, or
securities convertible into Stock of any class, whether now or hereafter
authorized, for such consideration as the Board of Directors may deem advisable,
subject to such restrictions or limitations, if any, as may be set forth in the
Charter or the Bylaws of the Corporation.
SECTION 6. AMENDMENTS TO THE BYLAWS.
In furtherance and not in limitation of the power conferred by statute, the
Board of Directors is expressly authorized to adopt, alter or repeal Bylaws of
the Corporation. The stockholders may adopt, alter and repeal Bylaws of the
Corporation only by the affirmative vote of 80% of the aggregate votes entitled
to be cast with respect thereto.
SECTION 7. CERTAIN OTHER DETERMINATIONS BY THE BOARD OF DIRECTORS.
The determination as to any of the following matters, made in good faith by
or pursuant to the direction of the Board of Directors consistent with the
Charter and in the absence of actual receipt of an improper benefit in money,
property or services or active and deliberate dishonesty established by a court,
shall be final and conclusive and shall be binding upon the Corporation and
every holder of Stock: the amount of the net income of the Corporation for any
period and the amount of assets at any time legally available for the payment of
dividends, redemption of Stock or the payment of other distributions on Stock;
the amount of paid-in surplus, net assets, annual or other net profit, net
assets in excess of capital, undivided profits or excess of profits over losses
on sales of assets; the amount, purpose, time of creation, increase or decrease,
alteration or cancellation of any reserves or charges and the propriety thereof
(whether or not any obligation nor liability for which such reserves or charges
shall have been created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the fair value, of any
asset owned or held by the Corporation; and any matters relating to the
acquisition, holding and disposition of any assets of the Corporation.
SECTION 8. RESERVED POWERS OF THE BOARD OF DIRECTORS.
The enumeration and definition of particular powers of the Board of
Directors included in this Article VI shall in no way be limited or restricted
by reference to or inference from the terms of any other clause of this or any
other provision of the charter of the Corporation, or construed or deemed by
inference or otherwise in any manner to exclude or limit the powers conferred
upon the Board of Directors under the general laws of the State of Maryland as
now or hereafter in force.
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ARTICLE VII
PROVISIONS FOR DEFINING, LIMITING AND REGULATING
CERTAIN POWERS OF THE CORPORATION AND OF THE
STOCKHOLDERS AND DIRECTORS
SECTION 1. RELATED PARTY TRANSACTIONS.
Without limiting any other procedure available by law or otherwise to the
Corporation, the Board of Directors may authorize any agreement or other
transaction with any person, corporation, association, company, trust,
partnership (limited or general) or other organization, although one or more of
the directors or officers of the Corporation may be a party to any such
agreement or any officer, director, stockholder or member of such other party
(an "Interested Officer/Director"), and no such agreement or transaction shall
be invalidated or rendered void or voidable solely by reason of the existence of
any such relationship if: (i) the existence is disclosed or known to the Board
of Directors, and the contract or transaction is authorized, approved or
ratified by the affirmative vote of a majority of the disinterested directors,
even if they constitute less than a quorum of the Board of Directors; or (ii)
the existence is disclosed to the stockholders entitled to vote, and the
contract or transaction is authorized, approved or ratified by a majority of the
votes cast by the stockholders entitled to vote, other than the votes of the
stock held of record by the Interested Officers/Directors; or (iii) the contract
or transaction is fair and reasonable to the Corporation. Any Interested
Officer/Director of the Corporation or the stock owned by them or by a
corporation, association, company, trust, partnership (limited or general) or
other organization in which an Interested Officer/Director may have an interest,
may be counted in determining the presence of a quorum at a meeting of the Board
of Directors or a committee of the Board of Directors or at a meeting of the
stockholders, as the case may be, at which the contract or transaction is
authorized, approved or ratified.
SECTION 2. REIT QUALIFICATION.
After the Corporation has initially elected to qualify as a REIT under the
Code, the Board of Directors shall use its reasonable best efforts to cause the
Corporation and its stockholders to qualify for U.S. federal income tax
treatment in accordance with the provision of the Code applicable to a REIT. In
furtherance of the foregoing, the Board of Directors shall use its reasonable
best efforts to take such actions as are necessary, and may take such actions as
in its sole judgment and discretion are desirable, to preserve the status of the
Corporation as a REIT, provided, however, that if the Board of Directors
determines in its discretion, that it is no longer in the best interests of the
Corporation to continue to have the Corporation qualify as a REIT, the Board of
Directors may revoke or otherwise terminate the Corporation's REIT election
pursuant to Section 856(g) of the Code. Nothing contained in the Charter shall
limit the authority of the Board of Directors to take such action as it in its
sole discretion deems necessary or advisable to protect the Corporation and the
interests of the stockholders by maintaining the Corporation's eligibility to
be, and preserving the Corporation's status as, a qualified REIT under the Code.
SECTION 3. STOCKHOLDER ACTIONS.
(a) Stockholder Meetings. Action shall be taken by the stockholders only at
annual or special meetings of stockholders, or by unanimous written consent of
the holders of all Equity Stock entitled to vote on such action at a meeting of
stockholders, if such written consent is accompanied by a written waiver of any
right to dissent signed by each stockholder entitled to notice of the meeting
but not entitled to vote at such meeting.
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(b) Special Meetings of the Stockholders. Special meetings of the
stockholders of the Corporation for any purpose or purposes may be called at any
time by the Chairman of the Board of Directors; or by a majority of the members
of the Board of Directors; or by a committee of the Board of Directors which has
been duly designated by the Board of Directors and whose powers and authority,
as provided in a resolution of the Board of Directors or in the Bylaws of the
Corporation, include the power to call such meetings. Special meetings of
stockholders of the Corporation shall be called at the request of stockholders
only as required by law.
SECTION 4. OTHER CONSIDERATIONS.
The Board of Directors shall, in connection with the exercise of its
business judgment involving a Business Combination (as defined in Section 3-601
of the Corporations and Associations Article of the Annotated Code of Maryland)
or any actual or proposed transaction which would or may involve a change in
control of the Corporation (whether by purchases of shares of stock or any other
securities of the Corporation in the open market, or otherwise, tender offer,
merger, consolidation, dissolution, liquidation, sale of all or substantially
all of the assets of the Corporation, proxy solicitation or otherwise), in
determining what is in the best interests of the Corporation and its
stockholders and in making any recommendation to its stockholders, give due
consideration to all relevant factors, including, but not limited to (a) the
economic effect, both immediate and longterm, upon the Corporation's
stockholders, including stockholders, if any, who do not participate in the
transaction; (b) the social and economic effect on the employees, customers of,
and others dealing with, the Corporation and its subsidiaries and on the
communities in which the Corporation and its subsidiaries operate or are
located; (c) whether the proposal is acceptable based on the historical and
current operating results or financial condition of the Corporation; (d) whether
a more favorable price could be obtained for the Corporation's stock or other
securities in the future; (e) the reputation and business practices of the
offeror and its management and affiliates as they would affect the employees of
the Corporation and its subsidiaries; (f) the future value of the stock or any
other securities of the Corporation; (g) any antitrust or other legal and
regulatory issues that are raised by the proposal; and (h) the business and
financial condition and earnings prospects of the acquiring person or entity,
including, but not limited to, debt service and other existing financial
obligations, financial obligations to be incurred in connection with the
acquisition, and other likely financial obligations of the acquiring person or
entity. If the Board of Directors determines that any proposed Business
Combination (as defined in Section 3-601 of the Corporations and Associations
Article of the Annotated Code of Maryland) or actual or proposed transaction
which would or may involve a change in control of the Corporation should be
rejected, it may take any lawful action to defeat such transaction, including,
but not limited to, any or all of the following: advising stockholders not to
accept the proposal; instituting litigation against the party making the
proposal; filing complaints with governmental and regulatory authorities;
acquiring the stock or any of the securities of the Corporation; selling or
otherwise issuing authorized but unissued stock, other securities or granting
options or rights with respect thereto; acquiring a company to create an
antitrust or other regulatory problem for the party making the proposal; and
obtaining a more favorable offer from another individual or entity.
SECTION 5. STOCKHOLDER PROPOSALS.
For any stockholder proposal to be presented in connection with an annual
meeting of stockholders of the Corporation, including any proposal relating to
the nomination of a director to be elected to the Board of Directors of the
Corporation, the stockholders must have given timely written notice thereof in
writing to the Secretary of the Corporation in the manner and containing the
information required by the ByLaws. Stockholder proposals to be presented in
connection with a special meeting of stockholders will be presented
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by the Corporation only to the extent required by Section 2-502 of the
Corporations and Associations Article of the Annotated Code of Maryland.
SECTION 6. VOTING REQUIREMENTS.
Notwithstanding any provision of law requiring the authorization of any
action by a greater proportion than a majority of the total number of shares of
all classes of capital stock or the total number of shares of any class of
capital stock, such action shall be valid and effective if authorized by the
affirmative vote of the holders of a majority of the total number of shares of
all classes and entitled to vote thereon, except as otherwise provided in the
Charter of the Corporation.
ARTICLE VIII
INDEMNIFICATION OF AGENTS
AND LIMITATION OF LIABILITY OF OFFICERS AND DIRECTORS
SECTION 1. INDEMNIFICATION.
The Corporation shall provide any indemnification permitted by the laws of
Maryland and shall indemnify directors, officers, agents and employees as
follows: (a) the Corporation shall indemnify its directors and officers, whether
serving the Corporation or at its request any other entity, to the full extent
required or permitted by the General Laws of the State of Maryland now or
hereafter in force, including the advance of expenses under the procedures and
to the full extent permitted by law and (b) the Corporation shall indemnify
other employees and agents, whether serving the Corporation or at its request
any other entity, to such extent as shall be authorized by the Board of
Directors or the Corporation's By-Laws and be permitted by law. The foregoing
rights of indemnification shall not be exclusive of any other rights to which
those seeking indemnification may be entitled. The Board of Directors may take
such action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such by-laws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of the
Charter of the Corporation or repeal of any of its provisions shall limit or
eliminate the right to indemnification provided hereunder with respect to acts
or omissions occurring prior to such amendment or repeal or shall limit or
eliminate the rights granted under indemnification agreements entered into by
the Corporation and its directors, officers, agents and employees.
SECTION 2. LIMITATION OF LIABILITY.
To the fullest extent permitted by Maryland statutory or decisional law, as
amended or interpreted, no director or officer of the Corporation shall be
liable to the Corporation or its stockholders for money damages. No amendment of
the Charter of the Corporation or repeal any of its provisions shall apply to or
affect in any respect the applicability of the preceding sentence with respect
to any act or omission which occurred prior to such amendment or repeal.
ARTICLE IX
AMENDMENTS
(a) Right to Amend Articles. Subject to the provisions hereof, the
Corporation reserves the right at any time, and from time to time, to amend,
alter, repeal, or rescind any provision contained herein, in the manner
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now or hereafter prescribed by law, or other provisions authorized by the laws
of the State of Maryland at the time in force may be added or inserted, in the
manner now or hereafter prescribed by law; and all contract or other rights,
preferences and privileges of whatsoever nature conferred upon stockholders,
directors, officers, employees or any other persons whomsoever by and pursuant
to the Charter of the Corporation, in its present form or as hereafter amended,
are granted subject to this reservation.
(b) Certain Amendments Requiring Special Stockholder Vote. Any provision of
the Charter of the Corporation to the contrary notwithstanding:
(i) no term or provision of the Charter of the Corporation may be
added, amended or repealed in any respect that would, in the determination
of the Board of Directors, cause the Corporation not to qualify as a REIT
under the Code;
(ii) Article VI, Section 3 (removal of directors) and Section 6
(amendments of Bylaws); Article VIII (indemnification of agents and
limitation of liability of officers and directors); and this Article IX
shall not be amended or repealed; and
(iii) no provision imposing cumulative voting in the election of
directors may be added to the Charter of the Corporation;
unless in each such case, in addition to any vote required by the terms of then
outstanding preferred stock, such action is approved by the affirmative vote of
the holders of not less than eighty percent (80%) of all of the votes entitled
to be cast on the matter.
IN WITNESS WHEREOF, I have adopted and signed these Articles of
Incorporation and do hereby acknowledge that the adoption and signing are my
act.
Dated: May 6, 1996
/s/ Richard C. Leska
--------------------------------------
Richard C. Leska, Incorporator
16
<PAGE> 1
EXHIBIT 3
BYLAWS
OF
PARKWAY PROPERTIES, INC.
A Maryland Corporation
<PAGE> 2
PARKWAY PROPERTIES, INC.
BYLAWS
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <C>
ARTICLE I OFFICES.................................................................... 1
Section 1. PRINCIPAL OFFICE............................................. 1
Section 2. ADDITIONAL OFFICES........................................... 1
ARTICLE II MEETINGS OF STOCKHOLDERS................................................... 1
Section 1. ANNUAL MEETING............................................... 1
Section 2. SPECIAL MEETINGS............................................. 1
Section 3. PLACE OF MEETINGS............................................ 1
Section 4. NOTICE....................................................... 2
Section 5. SCOPE OF NOTICE.............................................. 2
Section 6. QUORUM....................................................... 2
Section 7. VOTING....................................................... 2
Section 8. PROXIES...................................................... 2
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS........................... 3
Section 10. INSPECTORS................................................... 3
Section 11. NOMINATIONS AND STOCKHOLDER BUSINESS......................... 3
Section 12. INFORMAL ACTION BY STOCKHOLDERS.............................. 5
Section 13. VOTING BY BALLOT............................................. 5
ARTICLE III DIRECTORS.................................................................. 5
Section 1. GENERAL POWERS; QUALIFICATIONS............................... 5
Section 2. NUMBER AND TENURE............................................ 6
Section 3. REGULAR MEETINGS............................................. 6
Section 4. SPECIAL MEETINGS............................................. 6
Section 5. NOTICE....................................................... 6
Section 6. QUORUM....................................................... 6
Section 7. VOTING....................................................... 7
Section 8. TELEPHONE MEETINGS........................................... 7
Section 9. INFORMAL ACTION BY DIRECTORS................................. 7
Section 10. COMPENSATION................................................. 7
Section 11. REMOVAL OF DIRECTORS......................................... 7
Section 12. LOSS OF DEPOSIT.............................................. 7
Section 13. SURETY BONDS................................................. 7
Section 14. RELIANCE..................................................... 7
Section 15. CERTAIN RIGHTS OF DIRECTORS.................................. 7
ARTICLE IV COMMITTEES................................................................. 8
Section 1. NUMBER, TENURE AND QUALIFICATIONS............................ 8
Section 2. POWERS....................................................... 8
Section 3. MEETINGS..................................................... 8
Section 4. TELEPHONE MEETINGS........................................... 8
Section 5. INFORMAL ACTION BY COMMITTEES................................ 8
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
ARTICLE V OFFICERS................................................................... 8
Section 1. GENERAL PROVISIONS........................................... 8
Section 2. ELECTION, TENURE AND REMOVAL OF OFFICERS..................... 9
Section 3. CHIEF EXECUTIVE OFFICER...................................... 9
Section 4. CHIEF OPERATING OFFICER...................................... 9
Section 5. CHIEF FINANCIAL OFFICER...................................... 9
Section 6. CHAIRMAN OF THE BOARD........................................ 9
Section 7. PRESIDENT.................................................... 9
Section 8. VICE PRESIDENTS.............................................. 10
Section 9. SECRETARY.................................................... 10
Section 10. TREASURER.................................................... 10
Section 11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS............... 10
Section 12. SALARIES..................................................... 10
ARTICLE VI CONTRACTS, LOANS, CHECKS AND DEPOSITS...................................... 11
Section 1. CONTRACTS.................................................... 11
Section 2. CHECKS AND DRAFTS............................................ 11
Section 3. DEPOSITS..................................................... 11
ARTICLE VII STOCK...................................................................... 11
Section 1. CERTIFICATES................................................. 11
Section 2. TRANSFERS.................................................... 12
Section 3. LOST CERTIFICATE............................................. 12
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE........... 12
Section 5. STOCK LEDGER................................................. 13
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS.......................... 13
ARTICLE VIII ACCOUNTING YEAR............................................................ 13
ARTICLE IX DIVIDENDS.................................................................. 13
Section 1. DECLARATION.................................................. 13
Section 2. CONTINGENCIES................................................ 13
ARTICLE X INVESTMENT POLICY.......................................................... 14
ARTICLE XI SEAL....................................................................... 14
Section 1. SEAL......................................................... 14
Section 2. AFFIXING SEAL................................................ 14
ARTICLE XII INDEMNIFICATION............................................................ 14
Section 1. PROCEDURE.................................................... 14
Section 2. EXCLUSIVITY, ETC............................................. 14
Section 3. SEVERABILITY; DEFINITIONS.................................... 15
ARTICLE XIII WAIVER OF NOTICE........................................................... 15
ARTICLE XIV AMENDMENT OF BYLAWS........................................................ 15
</TABLE>
ii
<PAGE> 4
MARYLAND BYLAWS
OF
PARKWAY PROPERTIES, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE.
The principal office of the Corporation shall be located at such place as
the Board of Directors may designate.
SECTION 2. ADDITIONAL OFFICES.
The Corporation may have additional offices at such places as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING.
The Corporation shall hold an annual meeting of its stockholders to elect
directors and transact any other business within its powers, either at 9:00 a.m.
on the first Thursday of June in each year if not a legal holiday, or at such
other time on such other day falling on or before the 30th day thereafter as
shall be set by the Board of Directors. Except as the Charter or statute
provides otherwise, any business may be considered at an annual meeting without
the purpose of the meeting having been specified in the notice. Failure to hold
an annual meeting does not invalidate the Corporation's existence or affect any
otherwise valid corporate acts.
SECTION 2. SPECIAL MEETINGS.
The president, chief executive officer, Board of Directors, Executive
Committee of the Board of Directors, or the chairman of the Board of Directors
may call special meetings of the stockholders. Such request shall state the
purpose of such meeting and the matters proposed to be acted on at such meeting.
The secretary shall inform such stockholders of the reasonably estimated cost of
preparing and mailing notice of the meeting and, upon such stockholders' payment
to the Corporation of such costs, the secretary shall give notice to each
stockholder entitled to notice of the meeting. Special meetings of the
stockholders shall be called at the request of the stockholders as may be
required by law.
SECTION 3. PLACE OF MEETINGS.
Meetings of stockholders shall be held at such place in the United States
as is set from time to time by the Board of Directors.
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SECTION 4. NOTICE.
Not less than ten nor more than 90 days before each meeting of
stockholders, the secretary shall give to each stockholder entitled to vote at
such meeting and to each stockholder not entitled to vote who his entitled to
notice of the meeting written or printed notice stating the time and place of
the meeting and, in the case of a special meeting or as otherwise may be
required by statute, the purpose for which the meeting is called, either by mail
or by presenting it to such stockholder personally or by leaving it at his
residence or usual place of business. If mailed, such notice shall be deemed to
be given when deposited in the United States mail addressed to the stockholder
at his post office address as it appears on the records of the Corporation, with
postage thereon prepaid.
SECTION 5. SCOPE OF NOTICE.
Any business of the Corporation may be transacted at an annual meeting of
stockholders without being specifically designated in the notice, except such
business as is required by statute to be stated in such notice. No business
shall be transacted at a special meeting of stockholders except as specifically
designated in the notice.
SECTION 6. QUORUM.
At any meeting of stockholders, the presence in person or by proxy of
stockholders entitled to cast a majority of all the votes entitled to be cast at
such meeting shall constitute a quorum; but this section shall not affect any
requirement under any statute or the Charter of the Corporation for the vote
necessary for the adoption of any measure. If, however, such quorum shall not be
present at any meeting of the stockholders, the stockholders entitled to vote at
such meeting, present in person or by proxy, shall have power to adjourn the
meeting from time to time to a date not more than 120 days after the original
record date without notice other than announcement at the meeting. At such
adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 7. VOTING.
A plurality of all the votes cast at a meeting of stockholders duly called
and at which a quorum is present shall be sufficient to elect a director. Each
share may be voted for as many individuals as there are directors to be elected
and for whose election the share is entitled to be voted. A majority of the
votes cast at a meeting of stockholders duly called and at which a quorum is
present shall be sufficient to approve any other matter which may properly come
before the meeting, unless more than a majority of the votes cast is required by
statute or by the Charter of the Corporation. Unless otherwise provided in the
Charter, each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders.
SECTION 8. PROXIES.
A stockholder may vote the stock owned of record by him, either in person
or by proxy executed in writing by the stockholder or by his duly authorized
attorney in fact. Such proxy shall be filed with the secretary of the
Corporation before or at time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
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SECTION 9. VOTING OF STOCK BY CERTAIN HOLDERS.
Stock registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or a proxy
appointed by any of the foregoing individuals, unless some other person who has
been appointed to vote such stock pursuant to a bylaw or a resolution of the
board of directors of such corporation or other entity presents a certified copy
of such bylaw or resolution, in which case such person may vote such stock. Any
director or other fiduciary may vote stock registered in his name as such
fiduciary, either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it shall
not be voted at any meeting and shall not be counted in determining the total
number of outstanding shares entitled to be voted at any given time, unless they
are held by it in a fiduciary capacity, in which case they may be voted and
shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date of
closing of the stock transfer books, the time after the record date of closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
SECTION 10. INSPECTORS.
At any meeting of stockholders, the chairman of the meeting may, or upon
the request of any stockholder shall, appoint one or more persons as inspectors
for such meeting. Such inspectors shall ascertain and report the number of
shares represented at the meeting based upon their determination of the validity
and effect of proxies, count all votes, report the results and perform such
other acts as are proper to conduct the election and voting with impartiality
and fairness to all the stockholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there is more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
SECTION 11. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Annual Meeting of Stockholders.
(1) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders (i) pursuant to the Corporation's
notice of meeting, (ii) by or at the direction of the Board of Directors or
(iii) by any stockholder of the Corporation who was a stockholder of record
at the meeting and who complied with the notice procedures set forth in
this Section 11(a).
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a)(1) of this Section 11, the stockholder must have
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given timely notice thereof in writing to the secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered to the secretary at
the principal executive offices of the Corporation not less than 60 days
nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 90th day prior to such
annual meeting and not later than the close of business on the later of the
60th day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (i) as to each person whom the
stockholder proposed to nominate for election or reelection as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (ii) as to any other business
that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and of the beneficial owner,
if any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (y) the class and number of shares of stock of the
Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 11 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is
no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
Section 11(a) shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following
the day on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 11(b), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 11(b). In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be) for election to such
position as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 11(b) shall be
delivered to the secretary at the principal executive offices of the Corporation
not earlier than the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such special meeting
or the tenth day following the day on which
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public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 11. The presiding officer of
the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made in
accordance with the procedures set forth in this Section 11 and, if any
proposed nomination or business is not in compliance with this Section 11,
to declare that such defective nomination or proposal be disregarded.
(2) For purposes of this Section 11, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones New Service,
Associated Press or comparable news service or in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of state law
and of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 11. Nothing in this
Section 11 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
SECTION 12. INFORMAL ACTION BY STOCKHOLDERS.
Any action required or permitted to be taken at a meeting of stockholders
may be taken without a meeting if a consent in writing, setting forth such
action, is signed by each stockholder entitled to vote on the matter and each
stockholder entitled to notice of a meeting of stockholders (but not to vote
thereat) has waived in writing any right to dissent from such action, and such
consent and waiver are filed with the minutes of proceedings of the
stockholders.
SECTION 13. VOTING BY BALLOT.
Voting on any question or in any election may be via voce unless the
presiding officer shall order or any stockholder shall demand that voting be by
ballot.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS; QUALIFICATIONS.
The business and affairs of the Corporation shall be managed under the
direction of its Board of Directors. A majority of the persons serving as
directors of the Corporation at any time shall be directors who are unaffiliated
(in the sole determination of the Board of Directors, which determination shall
be final) with and who do not receive compensation from the Corporation (other
than as a result of status as a director of the Corporation) ("Independent
Directors"). Notwithstanding the foregoing requirement, no action otherwise
validly taken by the Board of Directors during a period in which a majority of
its members are not
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Independent Directors shall be invalidated or otherwise affected by such
circumstance, nor shall such circumstance subject the directors taking any such
action to a higher standard of care or to liability other than that which would
have applied to such action were a majority of the members of the Board of
Directors Independent Directors at the time such action was taken.
SECTION 2. NUMBER AND TENURE.
At any regular meeting or at any special meeting called for that purpose, a
majority of the entire Board of Directors may establish, increase or decrease
the number of directors, provided that the number thereof shall never be less
than the minimum number required by the Maryland General Corporation Law, nor
more than 15, and further provided that the tenure of office of a director shall
not be affected by any decrease in the number of directors. Each director shall
hold office for a term of one year and until his successor is elected and
qualified, or until his resignation, removal (in accordance with the Charter),
retirement or death.
SECTION 3. REGULAR MEETINGS.
The Board of Directors may provide, by resolution, the time and place,
either within or without the State of Maryland, for the holding of regular
meetings of the Board of Directors without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by or at the
request of the chairman of the board, president or by a majority of the
directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either within or without
the State of Maryland, as the place for holding any special meeting of the Board
of Directors called by them.
SECTION 5. NOTICE.
Notice of any special meeting shall be given by written notice delivered
personally, transmitted by facsimile, telegraphed or mailed to each director at
his business or residence address. Personally delivered, facsimile transmitted
or telegraphed notices shall be given at least twenty-four hours prior to the
meeting. Notice by mail shall be given at least five days prior to the meeting.
If mailed, such notice shall be deemed to be given when deposited in the United
States mail properly addressed, with postage thereon prepaid. If given by
telegram, such notice shall be deemed to be given when the telegram is delivered
to the telegraph company. Neither the business to be transacted at, nor the
purpose of, any annual, regular or special meeting of the Board of Directors
need be stated in this notice, unless specifically required by statute or these
Bylaws.
SECTION 6. QUORUM.
A majority of the directors shall constitute a quorum for transaction of
business at any meeting of the Board of Directors, provided that, if less than a
majority of such directors are present at said meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice, and provided further that if, pursuant to the Charter of the Corporation
or these Bylaws, the vote of a majority of a particular group of directors is
required for action, a quorum must also include a majority of such group.
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SECTION 7. VOTING.
The action of the majority of the directors present at a meeting at which a
quorum is present shall be the action of the Board of Directors, unless the
concurrence of a greater or lesser proportion is required for such action by the
Charter, these Bylaws or applicable statute.
SECTION 8. TELEPHONE MEETINGS.
Directors may participate in a meeting by means of a conference telephone
or similar communications equipment if all persons participating in the meeting
can hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
SECTION 9. INFORMAL ACTION BY DIRECTORS.
Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting, if a consent in writing to such action
is signed by each director and such written consent is filed with the minutes of
proceedings of the Board of Directors.
SECTION 10. COMPENSATION.
Unless restricted by the Charter, the Board of Directors shall have the
authority to fix the compensation of directors.
SECTION 11. REMOVAL OF DIRECTORS.
The stockholders may remove any director in the manner provided in the
Charter of the Corporation.
SECTION 12. LOSS OF DEPOSIT.
No director shall be liable for any loss which may occur by reason of the
failure of the bank, trust company, savings and loan association or other
institution with whom moneys or stock have been deposited.
SECTION 13. SURETY BONDS.
Unless required by law, no director shall be obligated to give any bond or
surety or other security for the performance of any of his duties.
SECTION 14. RELIANCE.
Each director, officer, employee and agent of the Corporation shall, in the
performance of his duties with respect to the Corporation, be fully justified
and protected with regard to any act or failure to act in reliance in good faith
upon the books of account or other records of the Corporation, upon an opinion
of counsel or upon reports made to the Corporation by any of its officers or
employees or by the advisers, accountants, appraisers or other experts or
consultants selected by the Board of Directors or officers of the Corporation,
regardless of whether such counsel or expert may also be a director.
SECTION 15. CERTAIN RIGHTS OF DIRECTORS.
The directors shall have no responsibility to devote their full time to the
affairs of the Corporation. Any director, officer, employee or agent of the
Corporation, in his personal capacity or in a capacity as an affiliate,
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employee, or agent of any other person, or otherwise, may have business
interests and engage in business activities similar to or in addition to those
of or relating to the Corporation.
ARTICLE IV
COMMITTEES
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS.
The Board of Directors may appoint from among its members an Executive
Committee, an Audit Committee and other committees, composed of two or more
directors, to serve at the pleasure of the Board of Directors.
SECTION 2. POWERS.
The Board of Directors may delegate to committees appointed under Section 1
of this Article any of the powers of the Board of Directors, except as
prohibited by law.
SECTION 3. MEETINGS.
At every meeting of any such committee, the presence of a majority of all
the members thereof shall constitute a quorum and the affirmative vote of a
majority of the members present shall be necessary for the adoption by it of any
resolution. In the absence of any member of any such committee, the members
thereof present at any meeting, whether or not they constitute a quorum, may
appoint another director to act in the place of such absent member.
SECTION 4. TELEPHONE MEETINGS.
Members of a committee of the Board of Directors may participate in a
meeting by means of a conference telephone or similar communications equipment
if all persons participating in the meeting can hear each other at the same
time. Participation in a meeting by these means shall constitute presence in
person at the meeting.
SECTION 5. INFORMAL ACTION BY COMMITTEES.
Any action required or permitted to be taken at any meeting of a committee
of the Board of Directors may be taken without a meeting if a consent in writing
to such action is signed by each member of the committee and such written
consent is filed with the minutes of proceedings of such committee.
ARTICLE V
OFFICERS
SECTION 1. GENERAL PROVISIONS.
The officers of the Corporation shall include a chief executive officer, a
president, one or more vice presidents, a secretary and a treasurer and may
include a chairman of the board, a chief operating officer, a chief financial
officer, a treasurer, one or more assistant secretaries and one or more
assistant treasurers. In addition, the Board of Directors may from time to time
appoint such other officers with such powers and duties as they shall deem
necessary or desirable. The Chairman of the Board shall be a director, other
officers
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need not be directors. Any two or more offices except president and secretary
may be held by the same person. In its discretion, the Board of Directors may
leave unfilled any office except that of president, treasurer and secretary.
SECTION 2. ELECTION, TENURE AND REMOVAL OF OFFICERS.
The Board of Directors shall elect the officers. The Board of Directors may
from time to time authorize any committee or officer to appoint assistant and
subordinate officers. Election or appointment of an officer, employee or agent
shall not of itself create contract rights. All officers shall be appointed to
hold their offices, respectively, during the pleasure of the Board. The Board of
Directors (or, as to any assistant or subordinate officer, any committee or
officer authorized by the Board) may remove an officer at any time. The removal
of an officer does not prejudice any of his contract rights. The Board of
Directors (or, as to any assistant or subordinate officer, any committee or
officer authorized by the Board) may fill a vacancy which occurs in any office
for the unexpired portion of the term.
SECTION 3. CHIEF EXECUTIVE OFFICER.
The President shall be the chief executive officer of the Corporation
unless the Board of Directors designates the Chairman of the Board as chief
executive officer. Subject to the control of the Board of Directors and the
executive committee (if any), the chief executive officer shall have general
executive charge, management and control of the properties, business and
operations of the Corporation with all such powers as may be reasonably incident
to such responsibilities; he may agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation
and may sign all certificates for shares of capital stock of the Corporation;
and shall have such other powers and duties as designated in accordance with
these bylaws and as from time to time may be assigned to him by the Board of
Directors.
SECTION 4. CHIEF OPERATING OFFICER.
The Board of Directors may designate a chief operating officer. The chief
operating officer shall have the responsibilities and duties as set forth by the
Board of Directors or the chief executive officer.
SECTION 5. CHIEF FINANCIAL OFFICER.
The Board of Directors may designate a chief financial officer. The chief
financial officer shall have the responsibilities and duties as set forth by the
Board of Directors or the chief executive officer.
SECTION 6. CHAIRMAN OF THE BOARD.
If elected, the Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors; and the Chairman shall have such
other powers and duties as designated in these bylaws and as from time to time
may be assigned to the Chairman by the Board of Directors.
SECTION 7. PRESIDENT.
Unless the Board of Directors otherwise determines, the President shall
have the authority to agree upon and execute all leases, contracts, evidences of
indebtedness and other obligations in the name of the Corporation; and, unless
the Board of Directors otherwise determines, he shall, in the absence of the
Chairman of the Board or if there be no Chairman of the Board, preside at all
meetings of the stockholders
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and (should the President be a director) of the Board of Directors; and the
President shall have such other powers and duties as designated in accordance
with these bylaws and as from time to time may be assigned to the President by
the Board of Directors.
SECTION 8. VICE PRESIDENTS.
The Vice Presidents shall perform such duties and have such powers as the
Board of Directors may from time to time prescribe.
SECTION 9. SECRETARY.
The Secretary shall keep the minutes of all meetings of the Board of
Directors and the minutes of all meetings of the stockholders, in books provided
for that purpose; he shall attend to the giving and serving of all notices; he
may in the name of the Corporation affix the seal of the Corporation to all
contracts of the Corporation and attest thereto; he may sign with the other
appointed officers all certificates for shares of capital stock of the
Corporation; the Secretary shall have charge of the certificate books, transfer
books and stock ledgers, and such other books and papers as the Board of
Directors may direct, all of which shall at all reasonable times be open to
inspection of any director upon application at the office of the Corporation
during business hours, and he shall in general perform all duties incident to
the office of Secretary, subject to the control of the chief executive officer
and the Board of Directors.
SECTION 10. TREASURER.
The Treasurer shall have responsibility for the custody and control of all
the funds and securities of the Corporation. He shall perform all acts incident
to the position of Treasurer subject to the control of the chief executive
officer and the Board of Directors; and the Treasurer shall, if required by the
Board of Directors, give such bond for the faithful discharge of the Treasurer's
duties in such form as the Board of Directors may require.
SECTION 11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
Each Assistant Treasurer and Assistant Secretary shall have the usual
powers and duties pertaining to his office, together with such other powers and
duties as may be assigned to him by the chief executive officer or the Board of
Directors. The Assistant Treasurers shall exercise the powers of the Treasurer
during that officer's absence or inability or refusal to act. The Assistant
Secretaries shall exercise the powers of the Secretary during that officer's
absence or inability or refusal to act.
SECTION 12. SALARIES.
The salaries of the officers shall be fixed from time to time by the Board
of Directors and no officer shall be prevented from receiving such salary by
reason of the fact that he is also a director.
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ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS.
The Board of Directors may authorize any officer or agent to enter into any
contract or to execute and deliver any instruments in the name of and on behalf
of the Corporation and such authority may be general or confined to specific
instances. Any agreement, deed, mortgage, lease or other document executed by
one or more of the directors or by an authorized person shall be valid and
binding upon the Board of Directors and upon the Corporation when authorized or
ratified by action of the Board of Directors.
SECTION 2. CHECKS AND DRAFTS.
All checks, drafts or other orders for the payment of money, notes or other
evidences of indebtedness in the name of the Corporation shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by the Board of Directors.
SECTION 3. DEPOSITS.
All funds of the Corporation not otherwise employed shall be deposited from
time to time to the credit of the Corporation in such banks, trust companies or
other depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
SECTION 1. CERTIFICATES.
The Corporation's Excess Stock (the "Excess Stock"), shall be issued in
book entry form only, and without certificates. For that purpose, the
Corporation shall cause appropriate records to be maintained of all registered
holders of the Excess Stock and the number of shares of Excess Stock,
respectively, held by each, from time to time.
Except as provided above with respect to the Excess Stock, each stockholder
shall be entitled to a certificate or certificates which shall represent and
certify the number of shares of each class of stock held by him in the
Corporation. Each certificate shall be signed by the chief executive officer,
the president or a vice president and countersigned by the secretary or an
assistance secretary or the treasurer or an assistant treasurer and may be
sealed with the seal, if any, of the Corporation. The signatures may be either
manual or facsimile. Certificates shall be consecutively numbered; and if the
Corporation shall, from time to time, issue several classes or series of stock,
each class or series may have its own number sequence. A certificate is valid
and may be issued whether or not an officer who signed it is still an officer
when it is issued. Each certificate representing shares which are restricted as
to their transferability or voting powers, which are preferred or limited as to
their dividends or as to their allocable portion of the assets upon liquidation
or which are redeemable at the option of the Corporation, shall have a statement
of such restriction, limitation, preference or redemption provision, or a
summary thereof, plainly stated on the certificate. In lieu of such statement or
summary, the Corporation may set forth upon the face or back of the certificate
a statement that the Corporation will furnish to any stockholder, upon request
and without charge, a full statement of such information.
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SECTION 2. TRANSFERS.
Upon surrender to the Corporation or the transfer agent of the Corporation
of a stock certificate duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation shall issue a
new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
The Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock
will be subject in all respects to the Charter of the Corporation.
SECTION 3. LOST CERTIFICATE.
The Board of Directors (or any officer designated by it) may direct a new
certificate to be issued in place of any certificate previously issued by the
Corporation alleged to have been lost, stolen or destroyed upon the making of an
affidavit of that fact by the person claiming the certificate to be lost, stolen
or destroyed. When authorizing the issuance of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or his
legal representative to advertise the same in such manner as they shall require
and/or to give bond, with sufficient surety, to the Corporation to indemnify it
against any loss or claim which may arise as a result of the issuance of a new
certificate.
SECTION 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
The Board of Directors may set, in advance, a record date for the purpose
of determining stockholders entitled to notice of or to vote at any meeting of
stockholders, or stockholders entitled to receive payment of any dividend or the
allotment of any other rights, or in order to make a determination of
stockholders for any other proper purpose. Such date, in any case, shall not be
prior to the close of business on the day the record date is fixed and shall be
not more than 90 days and, in the case of a meeting of stockholders, not less
than ten days, before the date on which the meeting or particular action
requiring such determination of stockholders is to be held or taken.
In lieu of fixing a record date, the Board of Directors may provide that
the stock transfer books shall be closed for a stated period but not longer than
20 days. If the stock transfer books are closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders, such
books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for
the determination of stockholders, (a) the record date for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day on which the notice of meeting is mailed;
and (b) the record date for the determination of stockholders entitled to
receive payment of a dividend or an allotment of any other rights shall be the
close of business on the day on which the resolution of the directors, declaring
the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except where the
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determination has been made through the closing of the transfer books and the
stated period of closing has expired.
SECTION 5. STOCK LEDGER.
The Corporation shall maintain at its principal office or at the office of
its counsel, accountants or transfer agent, an original or duplicate share
ledger containing the name and address of each stockholder and the number of
shares of each class held by such stockholder.
SECTION 6. FRACTIONAL STOCK; ISSUANCE OF UNITS.
The Board of Directors may issue fractional stock or provide for the
issuance of scrip, all on such terms and under such conditions as they may
determine. Notwithstanding any other provision of the Charter or these Bylaws,
the Board of Directors may issue units consisting of different securities of the
Corporation. Any security issued in a unit shall have the same characteristics
as any identical securities issued by the Corporation, except that the Board of
Directors may provide that for a specified period securities of the Corporation
issued in such unit may be transferred on the books of the Corporation only in
such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the
fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DIVIDENDS
SECTION 1. DECLARATION.
Dividends upon the stock of the Corporation may be declared by the Board of
Directors, subject to the provisions of law and the Charter of the Corporation.
Dividends may be paid in cash, property or stock of the Corporation, subject to
the provisions of law and the Charter.
SECTION 2. CONTINGENCIES.
Before payment of any dividends, there may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors may from time to time, in its absolute discretion, think proper as a
reserve fund for contingencies, for equalizing dividends, for repairing or
maintaining any property of the Corporation or for such other purpose as the
Board of Directors shall determine to be in the best interest of the
Corporation, and the Board of Directors may modify or abolish any such reserve
in the manner in which it was created.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter of the Corporation, the Board of
Directors may from time to time adopt, amend, revise or terminate any policy or
policies with respect to investments by the Corporation as it shall deem
appropriate in its sole discretion.
ARTICLE XI
SEAL
SECTION 1. SEAL.
The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall have inscribed thereon the name of the Corporation
and the year of its organization. The Board of Directors may authorize one or
more duplicate seals and provide for the custody thereof.
SECTION 2. AFFIXING SEAL.
Whenever the Corporation is required to place its seal to a document, it
shall be sufficient to meet the requirements of any law, rule or regulation
relating to a seal to place the word "(SEAL)" adjacent to the signature of the
person authorized to execute the document on behalf of the Corporation.
ARTICLE XII
INDEMNIFICATION
SECTION 1. PROCEDURE.
Any indemnification, or payment of expenses in advance of the final
disposition of any proceeding, shall be made promptly, and in any event within
60 days, upon the written request of the director or officer entitled to seek
indemnification (the "Indemnified Party"). The right indemnification and
advances hereunder shall be enforceable by the Indemnified Party in any court of
competent jurisdiction, if (i) the Corporation denies such request, in whole or
in part, or (ii) no disposition thereof is made within 60 days. The Indemnified
Party's costs and expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such action shall also
be reimbursed by the Corporation. It shall be a defense to any action for
advance for expenses that (a) a determination has been made that the facts then
known to those making the determination would preclude indemnification or (b)
the Corporation has not received both (i) an undertaking as required by law to
repay such advances in the event it shall ultimately be determined that the
standard of conduct has not been met and (ii) a written affirmation by the
Indemnified Party of such Indemnified Party's good faith belief that the
standard of conduct necessary for indemnification by the Corporation has been
met.
SECTION 2. EXCLUSIVITY, ETC.
The indemnification and advance of expenses provided by the Charter and
these Bylaws shall not be deemed exclusive of any other rights to which a person
seeking indemnification or advance of expenses may be entitled under any law
(common or statutory), or any agreement, vote of stockholders or disinterested
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directors or other provision that is consistent with law, both as to action in
his official capacity and as to action in another capacity while holding office
or while employed by or acting as agent for the Corporation, shall continue in
respect of all events occurring while a person was a director or officer after
such person has ceased to be a director or officer, and shall inure to the
benefit of the estate, heirs, executors and administrators of such person. All
rights to indemnification and advance of expenses under the Charter of the
Corporation and hereunder shall be deemed to be a contract between the
Corporation and each director or officer of the Corporation who serves or served
in such capacity at any time while this Bylaw is in effect. Nothing herein shall
prevent the amendment of this Bylaw, provided that no such amendment shall
diminish the rights of any person hereunder with respect to events occurring or
claims made before its adoption or as to claims made after its adoption in
respect of events occurring before its adoption. Any repeal or modification of
this Bylaw shall not in any way diminish any rights to indemnification or
advance of expenses of such director or officer or the obligations of the
Corporation arising hereunder with respect to events occurring, or claims made,
while this Bylaw or any provision hereof is in force.
SECTION 3. SEVERABILITY; DEFINITIONS.
The invalidity or unenforceability of any provision of this Article XII
shall not affect the validity or enforceability of any other provision hereof.
The phrase "this Bylaw" in this Article XII means this Article XII in its
entirety.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter of the
Corporation or these Bylaws or pursuant to applicable law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated herein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at nor the purpose of any
meeting need be set forth in the waiver of notice, unless specifically required
by statute. The attendance of any person at any meeting shall constitute a
waiver of notice of such meeting, except where such person attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
In accordance with the Charter, these Bylaws may be repealed, altered,
amended or rescinded (a) by the stockholders of the Corporation (considered for
this purpose as one class) by the affirmative vote of not less than 80% of all
of the votes entitled to be cast generally in the election of directors which
are cast on the matter at any meeting of stockholders called for that purpose
(provided that notice of such proposed repeal, alteration, amendment or
rescission is included in the notice of such meeting) or (b) by vote of a
majority of the Board of Directors at a meeting held in accordance with the
provisions of these Bylaws.
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