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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): May 28, 1997
TIS MORTGAGE INVESTMENT COMPANY
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(Exact name of registrant as specified in its charter)
Maryland 1-10004 94-3067889
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(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or Identification
organization) Number)
655 Montgomery Street, Suite 800
San Francisco, California 94111
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(Address of principal executive office) (Zip Code)
(415) 393-8000
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(Registrant's telephone number, including area code)
Not applicable.
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(Former Name or Former Address, if Changed Since Last Report)
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TIS MORTGAGE INVESTMENT COMPANY
ITEM 5. OTHER EVENTS
On May 28, 1997, TIS Mortgage Investment Company announced that it
amended its bylaws to provide that a special meeting of stockholders can be
called by stockholders entitled to cast at least fifty percent (50%) of all the
votes entitled to be cast at such meeting. Previously, stockholders holding at
least twenty-five percent (25%) of all the votes entitled to be cast at such
meeting were able to call special stockholders meeting. A copy of the amended
bylaws in their entirety is attached hereto as Exhibit 3.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBITS
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3.1 Amended and Restated Bylaws
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.
TIS MORTGAGE INVESTMENT COMPANY
Dated: May 29, 1997 By /s/ John E. Castello
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JOHN E. CASTELLO, Executive VicePresident
and Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT NO. ITEM PAGE NO.
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3.1 Amended and Restated Bylaws 4
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EXHIBIT 3.1
AMENDED AND RESTATED BY-LAWS
OF
TIS MORTGAGE INVESTMENT COMPANY
May 28, 1997
ARTICLE I: Stockholders
SECTION 1.1. Annual Meetings. The annual meeting of the stockholders of
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the Corporation shall be held on such date within the month of May and at such
place, within or without the State of Maryland, as may be determined by the
Board of Directors and as shall be designated in the notice of said meeting, for
the purpose of electing directors and for the transaction of such other business
as may properly be brought before the meeting.
SECTION 1.2. Special Meetings. Special meetings of the stockholders for
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any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be held at any place, within or without the State
of Maryland, and may be called at any time by the Board of Directors or by the
President, and shall be called at the request in writing of stockholders
entitled to cast at least fifty (50) percent of all the votes entitled to be
cast at such meeting. Such request shall state the purpose or purposes of the
proposed meeting and the matters proposed to be acted on at it; provided,
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however, that unless requested by stockholders entitled to cast a majority of
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all the votes entitled to be cast at the meeting, a special meeting need not be
called to consider any matter which is substantially the same as a matter voted
on at any meeting of the stockholders held during the preceding twelve (12)
months. The Secretary shall inform such stockholders of the estimated costs of
preparing and mailing the notice of the meeting and on payment of these costs to
the Corporation shall notify each stockholder entitled to notice of the meeting.
SECTION 1.3. Notice of Meetings. Written or printed notice of the time
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and place of every meeting, and of the purpose of any special meeting, of the
stockholders shall be given by the Secretary of the Corporation to each
stockholder of record entitled to vote at the meeting and each other stockholder
entitled to notice of the meeting, by placing such notice in the mail at least
ten (10) days, but not more than ninety (90) days, and in any event within the
period prescribed by law, prior to the date named for the meeting addressed to
each stockholder at his address appearing on the books of the Corporation or
supplied by him to the Corporation for the purposes of notice. The notice of
every meeting of stockholders may be accompanied by a form of proxy approved by
the Board of Directors in favor of such actions or persons as the Board of
Directors may select.
SECTION 1.4. Record Date. The Board of Directors may fix a date not
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more than ninety (90) days preceding the date of any meeting of stockholders, or
the date fixed for the payment of any dividend, or the date of the allotment of
rights, as a record date for the determination of stockholders entitled to
notice of, or to vote at, any such meeting (or any adjournment thereof) or
entitled to receive payment of any dividend, or to receive such allotment of
rights. In such case, only stockholders of record at the time so fixed shall be
entitled to vote, to receive notice, or receive dividends or rights,
notwithstanding any subsequent transfer on the books of the Corporation. The
Board of Directors shall not close the books of
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the Corporation against transfers of shares during the whole or any part of such
period. In the case of a meeting of stockholders, the record date shall be fixed
not less than ten (10) days prior to the date of the meeting.
SECTION 1.5. Quorum and Stockholder Action. Except as otherwise
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provided by statute or by the Articles of Incorporation, the presence in person
or by proxy of stockholders of the Corporation entitled to cast at least a
majority of all the votes entitled to be cast at the meeting shall constitute a
quorum and a majority of all the votes cast at a meeting at which a quorum is
present shall be sufficient to approve any matter which properly comes before
the meeting; provided, however, that a plurality of all the votes cast at a
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meeting at which a quorum is present shall be sufficient to elect a director. In
the absence of a quorum, the stockholders present in person or by proxy, by
majority vote and without notice other than by announcement at the meeting, may
adjourn the meeting from time to time as provided in Section 1.7 of this Article
I until a quorum shall attend.
SECTION 1.6. Organization. At every meeting of the stockholders, the
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Chairman of the Board, if one has been selected and is present or, if not, the
President, or in the absence of the Chairman of the Board and the President, a
Vice-President, or in the absence of the Chairman of the Board, the President
and all the Vice-Presidents, a chairman chosen by the Board of Directors of the
Corporation or, in the absence of the Chairman, the President, all the
Vice-Presidents and a chairman chosen by the Board of Directors, a chairman
chosen by the stockholders, shall act as chairman; and the Secretary, or in his
absence, an Assistant Secretary, or in the absence of the Secretary and all the
Assistant Secretaries, a person appointed by the chairman, shall act as
secretary of the meeting.
SECTION 1.7. Adjournment. Any meeting of the stockholders may be
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adjourned from time to time, without notice other than by announcement at the
meeting at which such adjournment is taken, and at any such adjourned meeting at
which a quorum shall be present any action may be taken that could have been
taken at the meeting originally called; provided, that the meeting may not be
adjourned to a date more than the number of days after the original record date
for the meeting permitted by law, and if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the adjourned meeting.
SECTION 1.8. Beneficial Owners. The Board of Directors may adopt by
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resolution a procedure by which a stockholder of the Corporation 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.
SECTION 1.9. Advance Notice Requirements for Nomination of Directors.
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Only persons who are nominated in accordance with the following procedures shall
be eligible for election as directors of the Corporation, except as may be
otherwise provided in the Articles of Incorporation of the Corporation with
respect to the rights of any holders of preferred stock of the Corporation to
nominate and elect a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of Directors may be made at any
annual meeting of stockholders (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 1.9
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and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this Section 1.9.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the date
of the annual meeting; provided, however, that in the event that less than
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seventy (70) days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth (a) as to each person whom the stockholder proposes to nominate
for election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. If the chairman of the annual meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
SECTION 1.10. Advance Notice Requirements for Proposal of Business. No
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business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
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any duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 1.10
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice procedures set forth
in this Section 1.10.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Corporation
not less than sixty (60) days nor more than ninety (90) days prior to the date
of the annual meeting; provided, however, that in the event that less than
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seventy (70) days' notice or prior public disclosure of the date of the annual
meeting is given or made to stockholders, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary
must set forth as to each matter such stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (iv) a description of
all arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 1.10; provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 1.10 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the business was not properly brought before the meeting and
such business shall not be transacted.
ARTICLE II: Board of Directors
SECTION 2.1. Election and Term of Office. The number of directors shall
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be fixed from time to time by resolution adopted by a majority of the entire
Board of Directors; provided, however, that the
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number of directors shall in no event be less than three (3) unless there are
fewer than three stockholders nor more than twelve (12). The business, affairs
and property of the Corporation shall be managed by or under the direction of
the Board of Directors, which may exercise all such powers of the Corporation
and do all such lawful acts and things as are not by statute, the Articles of
Incorporation or these By-Laws required to be exercised or done by the
stockholders. As soon as the Corporation shall first have three directors, the
Board of Directors shall be divided into three classes: class I, class II and
class III. The terms of office of the classes of directors shall expire at the
times of the annual meetings of the stockholders as follows -- class I in 1989,
class II in 1990 and class III in 1991 -- or thereafter in each case when their
respective successors are elected and qualified. At each annual election, the
directors chosen to succeed those whose terms are expiring shall be identified
as being of the same class as the directors whom they succeed, and shall be
elected for a term expiring at the time of the third succeeding annual meeting
of stockholders, or thereafter in each case when their respective successors are
elected and qualified. The number of directorships shall be apportioned among
the classes so as to maintain the classes as nearly equal in number as possible.
SECTION 2.2. Unaffiliated Directors. During such time as the
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Corporation qualifies or seeks to qualify as a real estate investment trust,
except in the case of a vacancy, a majority of the Board of Directors shall be
composed of persons who (i) are not Affiliates (as hereinafter defined) of any
person or entity, if any, that is responsible for directing and performing the
day-to-day business affairs of the Corporation (the "Manager") or of any person
which is an Affiliate of the Manager, and (ii) are not employed by, or receiving
any compensation (except for serving as a director) from, the Corporation
("Unaffiliated Directors"). "Affiliate" means, when used with reference to a
specified person, (i) any person that directly or indirectly controls or is
controlled by or is under common control with the specified person, (ii) any
person that is an officer, director or employee of, partner in or trustee of, or
serves in a similar capacity with respect to, the specified person or of which
the specified person is an officer, director or employee of, partner in or
trustee of, or with respect to which the specified person serves in a similar
capacity, (iii) any person that, directly or indirectly, is the beneficial owner
of 5% or more of any class of equity securities issued by the specified person,
or any person 5% or more of whose equity securities are, directly or indirectly,
beneficially owned by such other person, and (iv) any person that has a material
business or professional relationship with the specified person; provided,
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however, that a person shall not be deemed to be an Affiliate of the Manager or
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of any person which is an Affiliate of the Manager solely by reason of serving
as a director of one or more investment companies of which the Manager or an
Affiliate of the Manager serves as investment advisor or in any other capacity.
"Person" includes a natural person, corporation, partnership, trust company or
other entity for purposes of this definition.
SECTION 2.3. Regular Meetings. Regular meetings of the Board of
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Directors may be held without notice on such dates as the Board may from time to
time determine.
SECTION 2.4. Special Meetings. Special meetings of the Board of
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Directors shall be held whenever called by the Chairman of the Board, the
President or by a majority of the directors either in writing or by vote at a
meeting.
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SECTION 2.5. Notice of Special Meetings. Notice of the place, day and
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hour of every special meeting shall be delivered personally to each director or
telegraphed or cabled at least one (1) day before the meeting or mailed at least
two (2) days before the meeting to his address on the books of the Corporation.
It shall not be requisite to the validity of any meeting of the Board of
Directors that notice thereof shall have been given to any director who is
present thereat, or, if absent, waives notice thereof in writing filed with the
records of the meeting either before or after the holding thereof.
SECTION 2.6. Place of Meetings. The Board of Directors may hold its
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regular and special meetings at such place or places within or without the State
of Maryland as the Board may from time to time determine.
SECTION 2.7. Quorum and Board Action. Except as otherwise provided by
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statute or by the Articles of Incorporation: (a) one-third (1/3) of the entire
Board of Directors, but in no case less than two (2) directors, unless there is
only one (1) director, shall be necessary to constitute a quorum for the
transaction of business at each meeting of the Board; provided, however, that a
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majority of the directors who constitute any quorum shall be composed of
Unaffiliated Directors; (b) the action of a majority of the directors present at
a meeting at which a quorum is present shall be the action of the Board; and (c)
if at any meeting there be less than a quorum present, a majority of those
directors present may adjourn the meeting from time to time, but not for a
period greater than thirty (30) days at any one time, without notice other than
by announcement at the meeting until a quorum shall attend. At any 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
scheduled.
SECTION 2.8. Action without Meeting. Any action required or permitted
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to be taken at a meeting of the Board of Directors or a committee of the Board
may be taken without a meeting if an unanimous consent which sets forth the
action is signed by each member of the Board or committee and is filed with the
minutes of proceedings of the Board or committee.
SECTION 2.9. Organization. Every meeting of the Board of Directors
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shall be presided over by the Chairman of the Board, if one has been selected
and is present, and, if not, the President, or in the absence of the Chairman of
the Board and the President, a Vice-President, or in the absence of the Chairman
of the Board, the President, and all the Vice-Presidents, a chairman chosen by a
majority of the directors present. The Secretary, or in his absence, an
Assistant Secretary, or in the absence of the Secretary and all the Assistant
Secretaries, a person appointed by the chairman, shall act as secretary.
SECTION 2.10. Vacancies. Any vacancy on the Board of Directors
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occurring by reason of an increase in the number of directors may be filled by a
majority of the entire Board of Directors, including a majority of the
Unaffiliated Directors. Any vacancy on the Board of Directors occurring for any
other cause may be filled by a majority of the remaining members of the Board of
Directors, whether or not these members constitute a quorum under Section 2.7 of
this Article II; provided, however, that the remaining Unaffiliated Directors
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shall nominate replacements for vacancies among the unaffiliated Directors,
which replacements must be elected by a majority of the Board of Directors,
including a majority of the Unaffiliated Directors. Any director so chosen to
fill a vacancy shall hold office until the
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next annual meeting of stockholders and until his or her successor shall have
been duly elected and qualified.
SECTION 2.11. Resignations. Any director may resign at any time by
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giving written notice to the Board of Directors, the President or the Secretary.
Any such resignation shall take effect at the time of the receipt of such notice
or at any later time specified therein; and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 2.12. Committees. The Board of Directors may appoint from among
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its members an executive and other committees of the Board composed of two (2)
or more directors. A majority of the members of any committee so appointed shall
be composed of persons who are Unaffiliated Directors. To the extent permitted
by law, the Board of Directors may delegate to any such committee or committees
any of the powers of the Board of Directors in the management of the business,
affairs and property of the Corporation. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required. The
members of a committee present at any meeting, whether or not they constitute a
quorum, may appoint a director to act in the place of an absent member, as long
as the composition of the committee after such appointment complies with the
second sentence of this Section 2.12.
SECTION 2.13. Telephone Conference. Members of the Board of Directors
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or any committee thereof may participate in a meeting of the Board or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
at the same time and participation by such means shall constitute presence in
person at the meeting.
SECTION 2.14. Compensation of Directors. Any director, whether or not
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he or she is a salaried officer, employee, or agent of the Corporation, may be
compensated for his or her services as director or as a member of a committee,
or as Chairman of the Board or chairman of a committee, and in addition may be
reimbursed for transportation and other expenses, all in such manner and amounts
as the directors may from time to time determine.
SECTION 2.15. Investments and Limitation of Indebtedness.
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(a) Investments. The Board of Directors, including a majority
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of the Unaffiliated Directors, shall (a) adopt and amend from time to time
guidelines (the "Guidelines"), which shall contain criteria and parameters
pursuant to which the investment policies, borrowings and operations of the
Corporation and transactions in which the Manager or Affiliates of the Manager
have an interest shall be implemented, (b) review the investment policies of the
Corporation and the Guidelines at least annually to determine that they continue
to be in the best interests of the stockholders of the Corporation, and (c)
approve any deviations from the Guidelines on a case-by-case basis consistent
with the continued qualification of the Corporation as a real estate investment
trust.
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(b) Limitation of Indebtedness. The Corporation shall not
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incur indebtedness if, after giving effect to the incurrence thereof, aggregate
indebtedness (other than indebtedness represented by Structured Securities and
any other loans between the Corporation and its trusts or subsidiaries), secured
and unsecured, would exceed 300% of the Corporation's Average Invested Assets in
the preceding calendar quarter, as calculated in accordance with generally
accepted accounting principles, unless approved by a majority of the directors
who are not Affiliates of the Manager or of any person who is an Affiliate of
the Manager. The term "Average Invested Assets" for any quarter means the
average of the aggregate book value of the consolidated assets of the
Corporation and its trusts and subsidiaries, before reserves for depreciation
and bad debts and other similar noncash reserves, less the book value of the
issued and outstanding Structured Securities secured by Mortgage Instruments of
the Corporation, its trusts and subsidiaries, computed by taking the average of
such values at the end of each month during such quarter.
SECTION 2.16. Management Arrangements.
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(a) The Board of Directors may delegate the duty of management
of the assets and the administration of the Corporation's day-to-day operations
to a Manager pursuant to a written contract or contracts, or any renewal
thereof, which have obtained the requisite approval of the Board of Directors,
including a majority of the Unaffiliated Directors.
(b) Each contract for the services of the Manager entered into
by the Board of Directors shall have a term, except for the initial term
commencing on the date of the closing of the Corporation's initial public
offering, of no more than one year, but may be renewed annually at or prior to
the expiration of the contract. Each contract shall be terminable without cause
by a majority of the Unaffiliated Directors or the Manager upon sixty days,
written notice-
(c) The Unaffiliated Directors shall determine at least
annually that the compensation that the Corporation contracts to pay the Manager
is reasonable in relation to the nature and quality of the services performed,
and also shall supervise the performance of the Manager and the compensation
paid to the manager by the Corporation to determine that the provisions of such
contract are being carried out.
(d) Unless consistent with the Guidelines, all transactions
involving the Corporation in which the Manager has an interest must be approved
by a majority of the Unaffiliated Directors.
ARTICLE III: Officers
SECTION 3.1. Number. The officers of the Corporation shall be a
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President, a Secretary, and a Treasurer, and may include a Chairman of the
Board, one or more Vice-Presidents, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as the Board of Directors may
from time to time determine. Any officer may hold more than one office in the
Corporation, except that an officer may not serve concurrently as both the
President and a Vice-President.
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SECTION 3.2. Election and Term of Office. The officers of the
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Corporation shall be elected by the Board of Directors and, subject to earlier
termination of office, each officer shall hold office for one year and until his
successor shall have been elected and qualified except as otherwise provided in
any employment agreement between the Company and any Officer.
SECTION 3.3. Resignations. Any officer may resign at any time by giving
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written notice to the Board of Directors or to the President or the Secretary of
the Corporation. Any such resignation shall take effect at the date of the
receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.4. Removal. If the Board of Directors in its judgment finds
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that the best interests of the Corporation will be served, the Board may remove
any officer of the Corporation at any time.
SECTION 3.5. Chairman of the Board. The Chairman of the Board, if one
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is elected, shall preside over the meetings of the Board of Directors and of the
stockholders at which he or she is present, and shall have such other powers and
duties as from time to time may be conferred upon or assigned to him or her by
the Board.
SECTION 3.6. President. The President shall be the chief executive
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officer of the Corporation and shall have general supervision over the business
and operations of the Corporation, subject, however, to the control of the Board
of Directors. He or she, or such persons as he or she shall designate, shall
sign, execute, acknowledge, verify, deliver and accept, in the name of the
Corporation, deeds, mortgages, bonds, contracts and other instruments authorized
by the Board of Directors, except in the case where the signing, execution,
acknowledgment, verification, delivery or acceptance thereof shall be delegated
by the Board to some other officer or agent of the Corporation, and shall have
such other powers and duties as from time to time may be conferred upon or
assigned to him or her by the Board.
SECTION 3.7. The Vice-Presidents. In the absence or disability of the
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President, or when so directed by the President, any Vice-President designated
by the Board of Directors may perform any or all of the duties of the President,
and, when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the President; provided, however, that no Vice-President
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shall act as a member of or as chairman of any committee of which the President
is a member or chairman by designation of ex-officio, except when designated by
the Board. Each Vice-President shall perform such other duties as from time to
time may be conferred upon or assigned to him or her by the Board or the
President.
SECTION 3.8. The Secretary. The Secretary shall record all the votes of
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the stockholders and of the directors and the minutes of the meetings of the
stockholders and of the Board of Directors in a book or books to be kept for
that purpose; he or she shall see that notices of meetings of the stockholders
and the Board of Directors are given and that all records and reports are
properly kept and filed by the Corporation as required by law; he or she shall
be the custodian of the seal of the Corporation and shall see that it is affixed
to all documents to be executed on behalf of the Corporation under its seal,
provided that in lieu of affixing the corporate seal to any document, it shall
be sufficient to meet the requirements of any law, rule or regulation, relating
to a corporate seal to affix the word ("SEAL") adjacent to the signature of the
authorized officer of the Corporation; and, in general, he or she shall perform
all duties
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incident to the office of Secretary, and such other duties as from time to time
may be conferred upon or assigned to him or her by the Board or the President.
SECTION 3.9. Assistant Secretaries. In the absence or disability of the
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Secretary, or when so directed by the Secretary, any Assistant Secretary may
perform any or all of the duties of the Secretary, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the Secretary.
Each Assistant Secretary shall perform such other duties as from time to time
may be conferred upon or assigned to him or her by the Board of Directors, the
President or the Secretary.
SECTION 3.10. The Treasurer. Subject to the provisions of any contract
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which may be entered into pursuant to authority granted by the Board of
Directors, the Treasurer shall have charge of all receipts and disbursements of
the Corporation and shall have or provide for the custody of its funds and
securities, he or she shall have full authority to receive and give receipts for
all money due and payable to the Corporation, and to endorse checks, drafts and
warrants, in its name and on its behalf, and to give full discharge for the
same; he or she shall deposit all funds of the Corporation, except such as may
be required for current use, in such banks or other places of deposit as the
Board of Directors may from time to time designate; and, in general, he or she
shall perform all duties incident to the office of Treasurer and such other
duties as from time to time may be conferred upon or assigned to him or her by
the Board or the President.
SECTION 3.11. Assistant Treasurers. In the absence or disability of the
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Treasurer, or when so directed by the Treasurer, any Assistant Treasurer may
perform any or all of the duties of the Treasurer and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Each Assistant Treasurer shall perform all such other duties as from
time to time may be conferred upon or assigned to him or her by the Board of
Directors, the President or the Treasurer.
SECTION 3.12. Compensation of Officers. The compensation of all
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officers shall be fixed from time to time by the Board of Directors, or any
committee or officer authorized by the Board to do so. No officer shall be
precluded from receiving such compensation by reason of the fact that he or she
is also a director of the Corporation.
ARTICLE IV: Capital Stock
SECTION 4.1. Certificates. The Board of Directors may authorize the
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issuance of shares of capital stock either in certificated or in uncertificated
form. If shares are issued in uncertificated form, each stockholder of a
certificated security shall be entitled upon written request to a stock
certificate or certificates, representing and certifying the number and kind of
full shares held by him, signed by the President, a Vice-President or the
Chairman of the Board and countersigned by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer, which signatures may be
either manual or facsimile signatures, and sealed with the seal of the
Corporation, which seal may be either facsimile or any other form of seal. Stock
certificates shall be in a form not inconsistent with law or with the Articles
of Incorporation.
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SECTION 4.2. Transfer of Shares of Capital Stock. Subject to Article
-----------------------------------
VIII of the Articles of Incorporation, transfers of shares of capital stock
shall be made on the books of the Corporation at the direction of the person
named on the Corporation's books or named in the certificate or certificates for
such shares (if issued), or by his attorney lawfully constituted in writing,
upon surrender of such certificate or certificates (if issued) properly
endorsed, to the Corporation's Transfer Agent, with such evidence of the
authenticity of such transfer, authorization and such other matters as the
Corporation or its agents may reasonably require, and subject to such other
reasonable terms and conditions as may be required by the Corporation or its
agents; or, if the Board of Directors shall by resolution so provide, transfer
of shares may be made in any other manner provided by law.
SECTION 4.3. Transfer Agents and Registrars. The Corporation may have
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one or more Transfer Agents and one or more Registrars of its stock, whose
respective duties the Board of Directors may, from time to time, define. No
certificate of stock shall be valid until countersigned by a Transfer Agent, if
the Corporation shall have a Transfer Agent, or until registered by a Registrar,
if the Corporation shall have a Registrar. One entity may serve as both Transfer
Agent and Registrar.
SECTION 4.4. Mutilated, Lost, Stolen or Destroyed Certificates. The
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Board of Directors, by standing resolution or by resolutions with respect to
particular cases, may authorize the issuance of a new stock certificate in lieu
of any stock certificate lost, stolen, destroyed or mutilated, upon such terms
and conditions as the Board may direct. The Board may in its discretion refuse
to issue such a new certificate, unless ordered to do so by a court of competent
jurisdiction.
SECTION 4.5. Stock Ledgers. The Corporation shall not be required to
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keep original or duplicate stock ledgers at its principal office in the City of
Baltimore, Maryland, but stock ledgers shall be kept at the respective offices
of the Transfer Agent of the Corporation's capital stock.
SECTION 4.6. Location of Corporate Books. So long as permitted by
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Maryland law, the books of the Corporation may be kept outside the state of
Maryland at such place or places as may be designated from time to time by the
Board of Directors.
ARTICLE V: Seal
SECTION 5.1. Seal. The seal of the Corporation shall be in such form
----
as is permitted by law.
ARTICLE VI: Other Provisions
SECTION 6.1. Amendments. By-Laws may be adopted, altered, amended or
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repealed in the manner provided in Section 1.5 of Article I hereof at any annual
or special meeting of the stockholders or in the manner provided in Section 2.7
or 2.8 of Article II hereof by the Board of Directors at any regular or special
meeting of the Board, provided, however, that after the Corporation has
consummated an offering of capital stock to the public, Section 2.1 and this
Section 6.1 of the By-Laws may be altered,
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amended or repealed only by the affirmative vote of the holders of at least
three-fourths of the shares of the Corporation then entitled to be voted on the
matter, and provided, further, however, that Section 2.2 of the By-Laws may be
altered, amended or repealed only by the stockholders in the manner provided in
Section 1.5 of the By-Laws or by the affirmative vote of a majority of the Board
of Directors, including a majority of the Unaffiliated Directors.
SECTION 6.2. Indemnification of Directors and Officers.
-----------------------------------------
(a) Indemnification. Any person who was or is a party or is
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threatened to be made a party in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is a current or former director or officer
of the Corporation, or is or was serving while a director or officer of the
Corporation, at the request of the Corporation, as a director, officer, partner,
trustee, employee, agent or fiduciary of another corporation, partnership, joint
venture, trust, enterprise or employee benefit plan, shall be indemnified by the
Corporation against judgments, penalties, fines, excise taxes, settlements and
reasonable expenses (including attorneys' fees) actually incurred by such person
in connection with such action, suit or proceeding to the full extent
permissible under applicable state corporation law.
(b) Advances. Any current or former director or officer of the
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Corporation claiming indemnification within the scope of this Section 6.2 shall
be entitled to advances from the Corporation for payment of the reasonable
expenses incurred by such person in connection with the proceedings to which he
or she is a party in the manner and to the full extent permissible under
applicable state corporation law.
(c) Procedures. On the request of any current or former
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director or officer requesting indemnification or an advance under this Section
6.2, the Board of Directors shall determine, or cause to be determined, in a
manner consistent with applicable state corporation law, whether the standards
required by this Section 6.2 have been met.
(d) Other Rights. The indemnification provided by this Section 6.2 shall not be
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deemed exclusive of any other right, in respect of indemnification or otherwise,
to which those seeking such indemnification may be entitled under any insurance
or other agreement, vote of stockholders or disinterested directors or
otherwise, both as to action by a director or officer of the Corporation in his
or her official capacity and as to action by such person in another capacity
while holding such office or position, and shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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