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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):
December 2, 1996
AVALON PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 1-12452 06-1379111
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
15 RIVER ROAD, WILTON, CONNECTICUT 06897
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
203-761-6500
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ITEM 5. OTHER EVENTS
On December 2, 1996 Avalon Properties, Inc. amended and restated its
By-laws to provide that special meetings of stockholders must be called by the
holders of at least a majority of shares entitled to vote at such meeting. The
foreoging summary is qualified in its entirety by reference to the Amended and
Restated By-laws, a copy of which is filed as an exhibit to this report.
2
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Exhibit No.
3(ii) Amended and Restated By-laws of Avalon Properties, Inc.
3
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SIGNATURES
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: December 3, 1996 AVALON PROPERTIES, INC.
/s/ Thomas J. Sargeant
--------------------------------
By: Thomas J. Sargeant
Chief Financial Officer
and Treasurer
4
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EXHIBIT 3(ii)
AMENDED AND RESTATED BYLAWS
OF
AVALON PROPERTIES, INC.
As Amended and Restated
December 2, 1996
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AMENDED AND RESTATED BYLAWS
OF
AVALON PROPERTIES, INC.
TABLE OF CONTENTS
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ARTICLE I
MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------------------------
1.01 PLACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
-----
1.02 ORGANIZATIONAL MEETING; ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
--------------------------------------
1.03 MATTERS TO BE CONSIDERED AT ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
------------------------------------------
1.04 SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
----------------
1.05 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
------
1.06 SCOPE OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
---------------
1.07 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
------
1.08. VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
------
1.09 PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-------
1.10 CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-------------------
1.11 TABULATION OF VOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
-------------------
1.12 INFORMAL ACTION BY STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
-------------------------------
1.13 VOTING BY BALLOT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
----------------
ARTICLE II
DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
---------
2.01 GENERAL POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
--------------
2.02 OUTSIDE ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
------------------
2.03 NUMBER, TENURE AND QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
--------------------------------
2.04 NOMINATION OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
-----------------------
2.05 ANNUAL AND REGULAR MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
---------------------------
2.06 SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
----------------
2.07 NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------
2.08 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
------
2.09 VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------
2.10 CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
-------------------
2.11 RESIGNATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
------------
2.12 REMOVAL OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
--------------------
2.13 VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
---------
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2.14 INFORMAL ACTION BY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----------------------------
2.15 COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
------------
ARTICLE III
COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
----------
3.01 NUMBER, TENURE AND QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
--------------------------------
3.02 DELEGATION OF POWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------------------
3.03 QUORUM AND VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-----------------
3.04 CONDUCT OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
-------------------
3.05 INFORMAL ACTION BY COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-----------------------------
ARTICLE IV
OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
--------
4.01 POWERS AND DUTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-----------------
4.02 REMOVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-------
4.03 VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------
4.04 CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------------
4.05 PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------
4.06 VICE PRESIDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------------
4.07 SECRETARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
---------
4.08 TREASURER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
---------
4.09 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS . . . . . . . . . . . . . . . . . . . . . . . . . 13
----------------------------------------------
4.10 SUBORDINATE OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
--------------------
4.11 SALARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
--------
ARTICLE V
SHARES OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
---------------
5.01 NO CERTIFICATES FOR STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-------------------------
5.02 ELECTION TO ISSUE CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
------------------------------
5.03 STOCK LEDGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
------------
5.04 RECORDING TRANSFERS OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
----------------------------
5.05 LOST CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
----------------
5.06 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE . . . . . . . . . . . . . . . . . . . . . . . 15
--------------------------------------------------
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ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
---------------------------
6.01 DECLARATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-----------
6.02 CONTINGENCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-------------
ARTICLE VII
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
---------------
7.01 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
---------------
7.02 EXPENSES; INDEMNIFICATION PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-----------------------------------
7.03 NONEXCLUSIVITY OF INDEMNIFICATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
----------------------------------------
7.04 PARTIAL INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-----------------------
7.05 MUTUAL ACKNOWLEDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
---------------------
7.06 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
---------
7.07 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
------------
7.08 EXCEPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
----------
7.09 CONSTRUCTION OF CERTAIN PHRASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
-------------------------------
7.10 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
----------------------
7.11 ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
---------------
ARTICLE VIII
NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-------
8.01 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
-------
8.02 SECRETARY TO GIVE NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------------
8.03 WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
----------------
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-------------
9.01 BOOKS AND RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
-----------------
9.02 INSPECTION OF BYLAWS AND CORPORATE RECORDS . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
------------------------------------------
9.03 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
---------
9.04 CHECKS, DRAFTS, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------------------
9.05 LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-----
9.06 FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-----------
9.07 ANNUAL REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-------------
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9.08 INTERIM REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
---------------
9.09 OTHER REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------
9.10 BYLAWS SEVERABLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
----------------
ARTICLE X
AMENDMENT OF BYLAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-------------------
10.1 BY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
------------
10.2 BY STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
---------------
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
</TABLE>
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ARTICLE I
MEETINGS OF STOCKHOLDERS
1.01 PLACE. All meetings of the holders of the issued and
outstanding common stock and preferred stock of the Corporation (the
"Stockholders") shall be held at the principal executive office of the
Corporation or such other place within the United States as shall be stated in
the notice of the meeting.
1.02 ORGANIZATIONAL MEETING; ANNUAL MEETING. An annual meeting of
the Stockholders for the election of Directors and the transaction of such
other business as properly may be brought before the meeting shall be held on
the second Wednesday in May of each year or at such other date and time as may
be fixed by the Board of Directors. If the date fixed for the annual meeting
shall be a legal holiday, such meeting shall be held on the next succeeding
business day. Any and all references hereafter in these Bylaws to an annual
meeting or to annual meetings shall be deemed to refer also to any special
meeting(s) in lieu thereof.
1.03 MATTERS TO BE CONSIDERED AT ANNUAL MEETING.
(a) At an annual meeting of Stockholders, only such business shall
be conducted, and only such proposals shall be acted upon, as shall have been
properly brought before the annual meeting (i) by, or at the direction of, a
majority of the Board of Directors, or (ii) by any holder of record (both as of
the time notice of such proposal is given by the Stockholder as set forth below
and as of the record date for the annual meeting in question) of any shares of
the Corporation's capital stock entitled to vote at such annual meeting who
complies with the procedures set forth in this Section 1.03. For a proposal to
be properly brought before an annual meeting by a Stockholder, other than a
stockholder proposal included in the Corporation's proxy statement pursuant to
Rule 14a-8 of the Securities Exchange Act of 1934, as amended, the Stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation, and such Stockholder or his representative must be present in
person at the annual meeting. For the first annual meeting following the
initial public offering of common stock of the Corporation, a Stockholder's
notice shall be timely if delivered to, or mailed and received at, the
principal executive office of the Corporation not later than the close of
business on the 20th calendar day (or if that day is not a business day for the
Corporation, on the next business day) following the date on which notice of
the date of the first annual meeting is mailed or otherwise transmitted to
Stockholders. For all subsequent annual meetings, a Stockholder's notice shall
be timely if delivered to, or mailed and received at, the principal executive
offices of the corporation (A) not less than 75 days nor more than 180 days
prior to the anniversary date of the immediately preceding annual meeting of
Stockholders or special meeting in lieu thereof (the "Anniversary Date") or (B)
in the event that the annual meeting of Stockholders is called for a date more
than 7 calendar days prior to the Anniversary Date, not later than the close of
business on (1) the 20th calendar day (or if that day is not a business day for
the Corporation, on the next succeeding business day) following the earlier of
(x) the date on which notice of the date of such meeting was mailed to
Stockholders, or (y) the
<PAGE> 7
date on which the date of such meeting was publicly disclosed, or (2) if such
date of notice or public disclosure occurs more than 75 calendar days prior to
the scheduled date of such meeting, then the later of (x) the 20th calendar day
(or if that day is not a business day for the Corporation, on the next
succeeding business day) following the date of the first to occur of such
notice or public disclosure or (y) the 75th calendar day prior to such
scheduled date of such meeting (or if that day is not a business day for the
Corporation, on the next succeeding business day).
(b) A Stockholder's notice to the Secretary shall set forth as to
each matter the Stockholder proposes to bring before the annual meeting (i) a
brief description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting,
(ii) the name and address, as they appear on the Corporation's stock transfer
books, of the Stockholder proposing such business and of the beneficial owners
(if any) of the stock registered in such Stockholder's name and the name and
address of other Stockholders known by such Stockholder to be supporting such
proposal on the date of such Stockholder's notice, (iii) the class and number
of shares of the Corporation's capital stock which are beneficially owned by
the Stockholder and such beneficial owners (if any) on the date of such
Stockholder's notice and by any other Stockholders known by such Stockholder to
be supporting such proposal on the date of such Stockholder's notice, and (iv)
any financial interest of the Stockholder or of any such beneficial owner in
such proposal.
(c) If the Board of Directors, or a designated committee thereof,
determines that any Stockholder proposal was not timely made in accordance with
the terms of this Section 1.03, such proposal shall not be presented for action
at the annual meeting in question. If the Board of Directors, or a designated
committee thereof, determines that the information provided in a Stockholder's
notice does not satisfy the informational requirements of this section in any
material respect, the Secretary of the Corporation shall promptly notify such
Stockholder of the deficiency in the notice. Such Stockholder shall have an
opportunity to cure the deficiency by providing additional information to the
Secretary within the period of time, not to exceed five (5) days from the date
such deficiency notice is given to the Stockholder, determined by the Board of
Directors or such committee. If the deficiency is not cured within such
period, or if the Board of Directors or such committee determines that the
additional information provided by the Stockholder, together with the
information previously provided, does not satisfy the requirements of this
Section 1.03 in any material respect, then such proposal shall not be presented
for action at the annual meeting in question.
(d) Notwithstanding the procedure set forth in the preceding
paragraph, if neither the Board of Directors nor such committee makes a
determination as to the validity of any Stockholder proposal as set forth
above, the presiding Officer of the annual meeting shall determine and declare
at the annual meeting whether the Stockholder proposal was made in accordance
with the terms of this Section 1.03. If the presiding Officer determines that
a Stockholder proposal was made in accordance with the terms of this Section
1.03, the presiding Officer shall so declare at the annual meeting. If the
presiding Officer determines
2
<PAGE> 8
that a Stockholder proposal was not made in accordance with the provisions of
this Section 1.03, the presiding Officer shall so declare at the annual meeting
and such proposal shall not be acted upon at the annual meeting.
(e) This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of Officers, Directors
and committees of the Board of Directors, but in connection with such reports,
no new business shall be acted upon at such annual meeting except in accordance
with the provisions of this Section 1.03.
1.04 SPECIAL MEETINGS. The Chairman of the Board, the President or
a majority of the Board of Directors may call special meetings of the
Stockholders. Special meetings of Stockholders shall also be called by the
Secretary upon the written request of the holders of shares entitled to cast at
least a majority of the votes entitled to be cast at such meeting. Such
request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The date, time, place and record date for any
special meeting, including a special meeting called at the request of
Stockholders, shall be established by the Board of Directors or Officer calling
the same.
1.05 NOTICE. Not less than ten (10) nor more than ninety (90) days
before the date of every meeting of Stockholders, written or printed notice of
such meeting shall be given, in accordance with Article 8, to each Stockholder
entitled to vote or entitled to notice by statute, 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 or purposes for which the meeting is called.
1.06 SCOPE OF NOTICE. No business shall be transacted at a special
meeting of Stockholders except that specifically designated in the notice of
the meeting. Any business of the Corporation may be transacted at the annual
meeting without being specifically designated in the notice, except such
business as is required by statute to be stated in such notice.
1.07 QUORUM. At any meeting of Stockholders, the presence in
person or by proxy of Stockholders entitled to cast a majority of the votes
shall constitute a quorum; but this Section shall not affect any requirement
under any statute or the Articles of Incorporation of the Corporation, as
amended (the "Charter"), for the vote necessary for the adoption of any
measure. If, however, a quorum is not present at any meeting of the
Stockholders, the Stockholders present in person or by proxy shall have the
power to adjourn the meeting from time to time without notice other than
announcement at the meeting until a quorum is present and the meeting so
adjourned may be reconvened without further notice. At any adjourned meeting
at which a quorum is present, any business may be transacted that might have
been transacted at the meeting as originally notified. The Stockholders
present at a meeting which has been duly called and convened and at which a
quorum is present at the time counted may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Stockholders to leave
less than a quorum.
3
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1.08. VOTING. A majority of the votes cast at a meeting of
Stockholders duly called and at which a quorum is present shall be sufficient
to take or authorize action upon any matter which may properly come before the
meeting, unless more than a majority of the votes cast is specifically required
by statute, the Charter or these Bylaws. Unless otherwise provided by statute,
the Charter or these Bylaws, each outstanding share (a "Share") of capital
stock of the Corporation (the "Stock"), regardless of class, shall be entitled
to one vote upon each matter submitted to a vote at a meeting of Stockholders.
Pursuant to Section 3-702 of the Maryland General Corporation Law, any and all
acquisitions of Shares of Stock are hereby exempted from the provisions of
Title 3, Subtitle 7 of the Maryland General Corporation Law, which relates to
voting rights of certain control shares. Shares of its own Stock directly or
indirectly owned by the Corporation shall not be voted in any meeting and shall
not be counted in determining the total number of outstanding Shares entitled
to vote at any given time, but Shares of its own voting Stock held by it in a
fiduciary capacity may be voted and shall be counted in determining the total
number of outstanding Shares at any given time. Notwithstanding anything else
contained in these Bylaws, the rights of Excess Stock and the holders of Excess
Stock shall be limited to the rights provided in the Corporation's Amended and
Restated Articles of Incorporation, as amended from time to time.
Notwithstanding the foregoing, a plurality of the votes cast at a meeting of
Stockholders duly called and at which a quorum is present shall be sufficient
to elect a Director.
1.09 PROXIES. A Stockholder may vote the Shares owned of record by
him or her, either in person or by proxy executed in writing by the Stockholder
or by his or her duly authorized attorney in fact. Such proxy shall be filed
with the Secretary of the Corporation before or at the time of the meeting. No
proxy shall be valid after eleven (11) months from the date of its execution,
unless otherwise provided in the proxy.
1.10 CONDUCT OF MEETINGS. The Chairman of the Board or, in the
absence of the Chairman, the President, or, in the absence of the Chairman,
President and Vice Presidents, a presiding Officer elected at the meeting,
shall preside over meetings of the Stockholders. The Secretary of the
Corporation, or, in the absence of the Secretary and Assistant Secretaries, the
person appointed by the presiding Officer of the meeting shall act as secretary
of such meeting.
1.11 TABULATION OF VOTES. At any annual or special meeting of
Stockholders, the presiding Officer shall be authorized to appoint a teller for
such meeting ("the Teller"). The Teller may, but need not, be an Officer or
employee of the Corporation. The Teller shall be responsible for tabulating or
causing to be tabulated shares voted at the meeting and reviewing or causing to
be reviewed all proxies. In tabulating votes, the Teller shall be entitled to
rely in whole or in part on tabulations and analyses made by personnel of the
Corporation, its counsel, its transfer agent, its registrar or such other
organizations that are customarily employed to provide such services. The
Teller shall be authorized to determine the legality and sufficiency of all
votes cast and proxies delivered under the Corporation's Charter, Bylaws and
applicable law. The presiding Officer may review all determinations
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made by the Teller hereunder, and in doing so the presiding Officer shall be
entitled to exercise his or her sole judgment and discretion and he or she
shall not be bound by any determinations made by the Teller.
1.12 INFORMAL ACTION BY STOCKHOLDERS. An 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 all
the Stockholders entitled to vote on the subject matter thereof and any other
Stockholders entitled to notice of a meeting of Stockholders (but not to vote
thereat) have waived in writing any rights which they may have to dissent from
such action, and such consents and waivers are filed with the minutes of
proceedings of the Stockholders. Such consents and waivers may be signed by
different Stockholders on separate counterparts.
1.13 VOTING BY BALLOT. Voting on any question or in any election
may be viva vice unless the presiding Officer shall order or any Stockholder
shall demand that voting be by ballot.
ARTICLE II
DIRECTORS
2.01 GENERAL POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors.
2.02 OUTSIDE ACTIVITIES. The Board of Directors and its members
are required to spend only such time managing the business and affairs of the
Corporation as is necessary to carry out their duties in accordance with
Section 2-405.1 of the Maryland General Corporation Law. The Board of
Directors, each Director, and the agents, Officers and employees of the
Corporation or of the Board of Directors or of any Director may engage with or
for others in business activities of the types conducted by the Corporation.
Except as set forth in the Charter or by separate agreement, none of such
individuals has an obligation to notify or present to the Corporation or each
other any investment opportunity that may come to such person's attention even
though such investment might be within the scope of the Corporation's purposes
or various investment objectives. Any interest (including any interest as
defined in Section 2-419(a) of the Maryland General Corporation Law) that a
Director has in any investment opportunity presented to the Corporation must be
disclosed by such Director to the Board of Directors (and, if voting thereon,
to the Stockholders or to any committee of the Board of Directors) within ten
(10) days after the later of the date upon which such Director becomes aware of
such interest or the date upon which such Director becomes aware that the
Corporation is considering such investment opportunity. If such interest comes
to the interested Director's attention after a vote to take such investment
opportunity, the voting body
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shall be notified of such interest and shall reconsider such investment
opportunity if not already consummated or implemented.
2.03 NUMBER, TENURE AND QUALIFICATION. The number of Directors of
the Corporation shall be that number set forth in the Charter or such other
number as may be designated from time to time by resolution of a majority of
the entire Board of Directors; provided, however, that the number of Directors
shall never be more than nine (9) nor less than the number required by Section
2-402 of the Maryland General Corporation Law, as amended from time to time,
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 serve
for the term set forth in the Charter and until his or her successor is elected
and qualified.
2.04 NOMINATION OF DIRECTORS.
(a) Nominations of candidates for election as Directors of the
Corporation at any annual meeting of Stockholders may be made (i) by, or at the
direction of, a majority of the Board of Directors or (ii) by any holder of
record (both as of the time notice of such nomination is given by the
Stockholder as set forth below and as of the record date for the annual meeting
in question) of any shares of the Corporation's capital stock entitled to vote
at such meeting who complies with the procedures set forth in this Section
2.04. Any Stockholder who seeks to make such a nomination, or his
representative, must be present in person at the annual meeting. Only persons
nominated in accordance with the procedures set forth in this Section 2.04
shall be eligible for election as Directors at an annual meeting of
Stockholders.
(b) Nominations, other than those made by, or at the direction of,
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation as set forth in this Section 2.04. For the
first annual meeting of the Corporation following the initial public offering
of common stock of the Corporation, notice shall be timely if delivered to, or
mailed and received at, the principal executive office of the Corporation not
later than the close of business on the 20th calendar day (or if that day is
not a business day for the Corporation, the next business day) following the
date on which notice of the first annual meeting is mailed or otherwise
transmitted to Stockholders. For all subsequent annual meetings of the
Corporation, a Stockholder's notice shall be timely if delivered to, or mailed
and received at, the principal executive offices of the corporation (i) not
less than 75 days nor more than 180 days prior to the Anniversary Date or (ii)
in the event that the annual meeting of Stockholders is called for a date more
than 7 calendar days prior to the Anniversary Date, not later than the close of
business on (A) the 20th calendar day (or if that day is not a business day for
the Corporation, on the next succeeding business day) following the earlier of
(1) the date on which notice of the date of such meeting was mailed to
Stockholders, or (2) the date on which the date of such meeting was publicly
disclosed, or (B) if such date of notice or public disclosure occurs more than
75 calendar days prior to the scheduled date of such meeting, then the later of
(1) the 20th calendar day (or if that day is not a business day for the
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Corporation, on the next succeeding business day) following the date of the
first to occur of such notice or public disclosure or (2) the 75th calendar day
prior to such scheduled date of such meeting (or if that day is not a business
day for the Corporation, on the next succeeding business day).
(c) A Stockholder's notice of nomination shall set forth as to
each person the Stockholder proposes to nominate for election as a Director (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person for the past five years;
(iii) the class and number of shares of the Corporation's capital stock which
are beneficially owned by such person on the date of such notice; (iv) such
nominee's written consent to be named in the proxy statement as a nominee and
to serve as a Director if elected, and (v) any other information relating to
such person that is required to be disclosed in solicitations of proxies with
respect to nominees for election as may be deemed necessary or desirable by the
Corporation's counsel, in the exercise of his or her discretion. Notice by a
Stockholder shall, in addition to the above-referenced information, set forth
as to the Stockholder giving the notice (A) the name and address, as they
appear on the Corporation's stock transfer books, of such Stockholder and of
the beneficial owners (if any) of the stock registered in such Stockholder's
name; (B) the name and address of other Stockholders known by such Stockholder
to be supporting such nominees on the date of such Stockholder's notice; (C)
the class and number of shares of the Corporation's capital stock which are
beneficially owned by such Stockholder and such beneficial owners (if any) on
the date of such Stockholder notice; and (D) the class and number of shares of
the Corporation's capital stock which are beneficially owned by any other
Stockholders known by such Stockholder to be supporting such nominees on the
date of such Stockholder notice. At the request of the Board of Directors, any
person nominated by or at the direction of the Board of Directors for election
as a Director at an annual meeting shall furnish to the Secretary of the
Corporation that information which would be required to be set forth in a
Stockholder's notice of nomination of such nominee.
(d) No person shall be elected by the Stockholders as a Director
of the Corporation unless nominated in accordance with the procedures set forth
in this Section 2.04. If the Board of Directors, or a designated committee
thereof, determines that a nomination made by any Stockholder was not timely
made in accordance with the terms of this Section, such nomination shall not be
considered at the annual meeting in question. If the Board of Directors, or a
designated committee thereof, determines that the information provided in a
Stockholder's notice does not satisfy the informational requirements of this
Section 2.04 in any material respect, the Secretary of the Corporation shall
promptly notify such Stockholder of the deficiency in the notice. Such
Stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within the period of time, not to
exceed 5 days from the date such deficiency notice is given to such
Stockholder, determined by the Board of Directors or such committee. If the
deficiency is not cured within such period, or if the Board of Directors or
such committee determines that the additional information provided by such
Stockholder, together with the information previously provided, does not
satisfy the
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requirements of this Section 2.04 in any material respect, such nomination
shall not be considered at the annual meeting in question.
(e) Notwithstanding the procedures set forth in the preceding
paragraph, if neither the Board of Directors nor a designated committee thereof
makes a determination as to the validity of any nominations by any Stockholder
as set forth above, the presiding Officer of the Stockholders meeting shall
determine and declare at the Stockholders meeting whether a nomination was made
in accordance with the terms of this Section 2.04. If the presiding Officer
determines that a nomination was not made in accordance with the terms of this
Section 2.04, and such nomination shall be disregarded, and the Board of
Directors shall make all Director nominations on behalf of the Corporation.
2.05 ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board
of Directors may be held immediately after and at the same place as the annual
meeting of Stockholders, or at such other time and place, either within or
without the State of Maryland, as is selected by resolution of the Board of
Directors, and no notice other than this Bylaw or such resolution shall be
necessary. 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
resolutions.
2.06 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board, the President
or 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.
2.07 NOTICE. Notice of any special meeting to be provided herein
shall be given by telephone or by written notice delivered personally,
telegraphed or telecopied at least twenty-four (24) hours prior to the meeting,
or by mail at least five (5) days prior to the meeting, to each Director at his
or her business or residence. Neither the business to be transacted at, nor
the purpose of, any annual, regular or special meeting of the Board of
Directors need be specified in the notice, unless specifically required by
statute, the Charter or these Bylaws.
2.08 QUORUM. A majority of the Board of Directors then in office
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors; provided, however, that a quorum for the transaction of
business with respect to any matter in which any Director (or affiliate of such
Director) who is not an independent Director has any interest shall consist of
a majority of the Directors that includes a majority of the independent
Directors then in office. If less than a majority of the Board of Directors is
present at said meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
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2.09 VOTING. The act of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable statute, the Charter or these Bylaws; provided, however,
that no act relating to any matter in which a Director (or affiliate of such
Director) who is not an independent Director has any interest shall be the act
of the Board of Directors unless such act has been approved by a majority of
the Board of Directors that includes a majority of the independent Directors.
2.10 CONDUCT OF MEETINGS. All meetings of the Board of Directors
shall be called to order and presided over by the Chairman of the Board, or in
the absence of the Chairman of the Board, by the President (if a member of the
Board of Directors) or, in the absence of the Chairman of the Board and the
President, by a member of the Board of Directors selected by the members
present. The Secretary of the Corporation, or in the absence of the Secretary,
any Assistant Secretary, shall act as secretary at all meetings of the Board of
Directors, and in the absence of the Secretary and Assistant Secretaries, the
presiding Officer of the meeting shall designate any person to act as secretary
of the meeting. Members of the Board of Directors may participate in meetings
of the Board of Directors by conference telephone or similar communications
equipment by means of which all Directors participating in the meeting can hear
each other at the same time, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for all purposes
of these Bylaws.
2.11 RESIGNATIONS. Any Director may resign from the Board of
Directors or any committee thereof at any time. Such resignation shall be made
in writing and shall take effect at the time specified therein, or if no time
be specified, at the time of the receipt of notice of such resignation by the
President or the Secretary.
2.12 REMOVAL OF DIRECTORS. Consistent with the Charter, the
Stockholders may, at any time, remove any Director, with or without cause, by
the affirmative vote of a majority of all the votes entitled to be cast on the
matter, and may elect a successor to fill any resulting vacancy for the balance
of the term of the removed Director.
2.13 VACANCIES. The Stockholders may elect a successor to fill a
vacancy on the Board of Directors which results from the removal of a Director.
Furthermore, any vacancy occurring in the Board of Directors for any cause
other than by reason of an increase in the number of directors may be filled by
a majority vote of the remaining Directors, although such majority is less than
a quorum. Any vacancy occurring in the Board of Directors by reason of an
increase in the number of directors may be filled by a majority vote of the
entire Board of Directors. A Director elected by the Board of Directors to
fill a vacancy shall hold office until the next annual meeting of Stockholders
at which the term of the class of Directors to which such Director is elected
expires or until his or her successor is elected and qualified.
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2.14 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 all of
the Directors and such written consent is filed with the minutes of the Board
of Directors. Consents may be signed by different Directors on separate
counterparts.
2.15 COMPENSATION. An annual fee for services and payment for
expenses of attendance at each meeting of the Board of Directors, or of any
committee thereof, may be allowed to any Director by resolution of the Board of
Directors.
ARTICLE III
COMMITTEES
3.01 NUMBER, TENURE AND QUALIFICATION. The Board of Directors may
appoint from among its members an Executive Committee and other committees,
composed of two or more Directors, to serve at the pleasure of the Board of
Directors. If any committee may take or authorize any act as to any matter in
which any Director (or affiliate of such Director) who is not an independent
Director has or may have any interest, a majority of the members of such
committee shall be independent Directors, except that any such committee
consisting of only two Directors may have one independent Director and one
Director who is not an independent Director.
3.02 DELEGATION OF POWER. The Board of Directors may delegate to
these committees in the intervals between meetings of the Board of Directors
any of the powers of the Board of Directors to manage the business and affairs
of the Corporation, except those powers which the Board of Directors is
specifically prohibited from delegating pursuant to Section 2-411 of the
Maryland General Corporation Law.
3.03 QUORUM AND VOTING. A majority of the members of any committee
shall constitute a quorum for the transaction of business by such committee,
and the act of a majority of the quorum shall constitute the act of the
committee, except that no act relating to any matter in which any Director (or
affiliate of such Director) who is not an independent Director has any interest
shall be the act of any committee unless a majority of the independent
Directors on the committee vote for such act.
3.04 CONDUCT OF MEETINGS. Each committee shall designate a
presiding Officer of such committee, and if not present at a particular
meeting, the committee shall select a presiding Officer for such meeting.
Members of any committee may participate in meetings of such committee by
conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other at the same time,
and participation in a meeting in accordance herewith shall constitute presence
in person at
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such meeting for all purposes of these Bylaws. Each committee shall keep
minutes of its meetings, and report the results of any proceedings at the next
succeeding annual or regular meeting of the Board of Directors.
3.05 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 written consent to such action is signed
by all members of the committee and such written consent is filed with the
minutes of proceedings of such committee. Consents may be signed by different
members on separate counterparts.
ARTICLE IV
OFFICERS
4.01 POWERS AND DUTIES
(a) The officers of the Corporation shall be elected
annually by the Board of Directors at the first meeting of the Board
of Directors held after each annual meeting of Stockholders. If the
election of Officers shall not be held at such meeting, such election
shall be held as soon thereafter as may be convenient. Each Officer
shall hold office until his successor is duly elected and qualifies or
until his death, resignation or removal in the manner hereinafter
provided. Any two or more offices except President and Vice President
may be held by the same person. Election or appointment of an Officer
or agent shall not of itself create contract rights between the
Corporation and such Officer or agent.
(b) The officers of the Corporation shall have the powers
and duties provided in these Bylaws and by the laws of the State of
Maryland and such further powers as may be incidental thereto or
necessary in connection therewith. In addition to and not in
limitation of the foregoing powers, the officers of the Corporation
named in Appendix A hereto shall have the powers set forth therein. A
certificate executed and delivered by the Secretary or any Assistant
Secretary of the Corporation stating that a true and correct copy of
the Bylaws as in effect on the date thereof is attached thereto and
that a named individual is a duly elected officer of the Corporation
shall be conclusive evidence of the authority of such officer to
perform the acts designated as authorized for such officer to perform
in Appendix A.
4.02 REMOVAL. Any Officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. The fact that a person is
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elected to an office, whether or not for a specified term, shall not by itself
constitute any undertaking or evidence of any employment obligation of the
Corporation to that person.
4.03 VACANCIES. A vacancy in any office may be filled by the Board
of Directors for the unexpired portion of the term.
4.04 CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Stockholders and of the Board of Directors.
Unless the Board of Directors shall otherwise determine, the Chairman of the
Board shall be the Chief Executive Officer and general manager of the
Corporation and shall in general supervise and control all of the business and
affairs of the Corporation. The Chairman of the Board may sign and execute all
deeds, mortgages, bonds, contracts or other obligations or instruments on
behalf of the Corporation, except in cases where the execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
Officer or agent of the Corporation or shall be required by law to be otherwise
signed or executed. In general, the Chairman of the Board shall perform all
duties incident to the office of Chairman of the Board and such other duties as
may be prescribed by the Board of Directors from time to time.
4.05 PRESIDENT. Unless the Board of Directors shall otherwise
determine, the President shall be the Chief Operating Officer of the
Corporation. In the absence of the Chairman of the Board, the President shall
preside at all meetings of the Stockholders and of the Board of Directors (if a
member of the Board of Directors). The President may sign any deeds,
mortgages, bonds, contracts or other obligations or instruments on behalf of
the Corporation except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other Officer or
agent of the Corporation or shall be required by law to be otherwise signed or
executed. In general, the President shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors from time to time.
4.06 VICE PRESIDENTS. The Board of Directors may appoint one or
more Vice Presidents. In the absence of the President or in the event of a
vacancy in such office, the Vice President (or in the event there be more than
one Vice President, the Vice Presidents in the order designated at the time of
their election, or in the absence of any designation, then in the order of
their election) shall perform 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. Every Vice President shall perform such other duties as from time
to time may be assigned to him or her by the President or the Board of
Directors.
4.07 SECRETARY. The Secretary shall (i) keep the minutes of the
proceedings of the Stockholders and Board of Directors in one or more books
provided for that purpose; (ii) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law; (iii) be
custodian of the corporate records of the Corporation; (iv) unless a transfer
agent is appointed, keep a register of the post office address of each
Stockholder that
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shall be furnished to the Secretary by such Stockholder and have general charge
of the Stock Ledger of the Corporation; (v) when authorized by the Board of
Directors or the President, attest to or witness all documents requiring the
same; (vi) perform all duties as from time to time may be assigned to him or
her by the President or by the Board of Directors; and (vii) perform all the
duties generally incident to the office of secretary of a corporation.
4.08 TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositaries as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
the regular meetings of the Board of Directors or whenever they may require it,
an account of all his or her transactions as Treasurer and of the financial
condition of the Corporation. The Board of Directors may engage a Custodian to
perform some or all of the duties of the Treasurer, and if a Custodian is so
engaged then the Treasurer shall be relieved of the responsibilities set forth
herein to the extent delegated to such Custodian and, unless the Board of
Directors otherwise determines, shall have general supervision over the
activities of such Custodian. The Custodian shall not be an Officer of the
Corporation.
4.09 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Board of
Directors may appoint one or more Assistant Secretaries or Assistant
Treasurers. The Assistant Secretaries and Assistant Treasurers (i) shall have
the power to perform and shall perform all the duties of the Secretary and the
Treasurer, respectively, in such respective Officer's absence and (ii) shall
perform such duties as shall be assigned to him or her by the Secretary or
Treasurer, respectively, or by the President or the Board of Directors.
4.10 SUBORDINATE OFFICERS. The Corporation shall have such
subordinate Officers as the Board of Directors may from time to time elect.
Each such Officer shall hold office for such period and perform such duties as
the Board of Directors, the President or any designated committee or Officer
may prescribe.
4.11 SALARIES. The salaries, if any, of the Officers shall be
fixed from time to time by the Board of Directors. No Officer shall be
prevented from receiving such salary, if any, by reason of the fact that he or
she is also a Director of the Corporation.
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ARTICLE V
SHARES OF STOCK
5.01 NO CERTIFICATES FOR STOCK. Unless the Board of Directors
authorizes the issuance of certificates pursuant to Section 5.02, none of the
Stock shall be represented by certificates.
5.02 ELECTION TO ISSUE CERTIFICATES. The Board of Directors may
authorize the issuance of certificates representing some or all of the Shares
of any or all of the classes or series of Stock. If the Board of Directors so
authorizes certificates, such certificates shall be of such form, not
inconsistent with the Charter, as shall be approved by the Board of Directors.
All certificates, if issued, shall be signed by the Chairman of the Board, the
President, or a Vice President and countersigned by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary. Any signature or
countersignature may be either a manual or facsimile signature. All
certificates, if issued, for each class of Stock shall be consecutively
numbered.
5.03 STOCK LEDGER. The Corporation shall maintain at its principal
executive office, at the office of its counsel, accountants or transfer agent
or at such other place designated by the Board of Directors an original or
duplicate Stock Ledger containing the names and addresses of all the
Stockholders and the number of shares of each class held by each Stockholder.
The Stock Ledger shall be maintained pursuant to a system that the Corporation
shall adopt allowing for the issuance, recordation and transfer of its Stock by
electronic or other means that can be readily converted into written form for
visual inspection and not involving any issuance of certificates. Such system
shall include provisions for notice to acquirors of Stock (whether upon
issuance or transfer of Stock) in accordance with Sections 2-210 and 2-211 of
the Maryland General Corporation Law, and Section 8-408 of the Commercial Law
Article of the State of Maryland. The Corporation shall be entitled to treat
the holder of record of any Share or Shares 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. Until a transfer is duly effected on the Stock
Ledger, the Corporation shall not be affected by any notice of such transfer,
either actual or constructive. Nothing herein shall impose upon the
Corporation, the Board of Directors or Officers or their agents and
representatives a duty or limit their rights to inquire as to the actual
ownership of Shares.
5.04 RECORDING TRANSFERS OF STOCK. If transferred in accordance
with any restrictions on transfer contained in the Charter, these Bylaws or
otherwise, Shares shall be recorded as transferred in the Stock Ledger upon
provision to the Corporation or the transfer agent of the Corporation of an
executed stock power duly guaranteed and any other documents reasonably
requested by the Corporation, and the surrender of the certificate or
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certificates, if any, representing such Shares. Upon receipt of such
documents, the Corporation shall issue the statements required by Sections
2-210 and 2-211 of the Maryland General Corporation Law and Section 8-408 of
the Commercial Law Article of the State of Maryland, issue as needed a new
certificate or certificates (if the transferred Shares were certificated) to
the persons entitled thereto, cancel any old certificates and record the
transaction upon its books.
5.05 LOST CERTIFICATE. The Board of Directors may direct a new
certificate to be issued in the place of any certificate theretofore issued by
the Corporation alleged to have been stolen, lost or destroyed upon the making
of an affidavit of that fact by the person claiming the certificate of Stock to
be stolen, lost or destroyed. When authorizing such issue 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 stolen, lost or
destroyed certificate or his legal representative to advertise the same in such
manner as it shall require and/or to give bond, with sufficient surety, to the
Corporation to indemnify it against any loss or claim which may arise by reason
of the issuance of a new certificate.
5.06 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
5.6.1. The Board of Directors may fix, in advance, a date as
the 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 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 sixty (60) days, and in case of a
meeting of Stockholders not less than ten (10) days, prior to the date on which
the meeting or particular action requiring such determination of Stockholders
is to be held or taken.
5.6.2. In lieu of fixing a record date, the stock transfer
books may be closed by the Board of Directors in accordance with Section 2-511
of the Maryland General Corporation Law for the purpose of determining
Stockholders entitled to notice of or to vote at a meeting of Stockholders.
5.6.3. 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 or the 30th day before the meeting, whichever
is the closer date to the meeting; and (b) the record date for the
determination of Stockholders entitled to receive payment of a dividend or an
allotment of any rights shall be at the close of business on the day on which
the resolution of the Board of Directors, declaring the dividend or allotment
of rights, is adopted.
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<PAGE> 21
5.6.4. 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
determination has been made through the closing of the stock transfer books and
the stated period of closing has expired.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
6.01 DECLARATION. Dividends and other distributions upon the Stock
may be declared by the Board of Directors as set forth in the applicable
provisions of the Charter and any applicable law, at any meeting, limited only
to the extent of Section 2-311 of the Maryland General Corporation Law.
Dividends and other distributions upon the Stock may be paid in cash, property
or Stock of the Corporation, subject to the provisions of law and of the
Charter.
6.02 CONTINGENCIES. Before payment of any dividends or other
distributions upon the Stock, there may be set aside (but there is no duty to
set aside) out of any funds of the Corporation available for dividends or other
distributions such sum or sums as the Board of Directors may from time to time,
in its absolute discretion, think proper as a reserve fund to meet
contingencies, 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 interests of the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE VII
INDEMNIFICATION
7.01 INDEMNIFICATION. Unless the Board of Directors otherwise
determines prospectively in the case of any one or more specified individuals,
the Corporation shall indemnify any person who is or was a Director or Officer
of the Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust,
or other enterprise (each an "Indemnitee") on the terms and conditions set
forth below; provided, however, that no indemnification shall be provided for
expenses relating to any willful or grossly negligent failure to make the
disclosures required by the next to last sentence of Section 2.02 hereof.
(a) Third Party Proceedings. The Corporation
shall indemnify the Indemnitee to the full extent permitted now or
hereafter by the Maryland General Corporation Law, as from time to
time amended, subject to the exceptions provided in this Article VII.
Without limiting the foregoing but subject to the provisions of these
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<PAGE> 22
Bylaws, the Corporation shall indemnify Indemnitee if Indemnitee is or
was a party or is threatened to be made a party to any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of Indemnitee's past, present or
future service as a director of the Corporation, or, at the
Corporation's request, of another enterprise or entity in which the
Corporation had, directly or indirectly, an interest at the time of
such service, against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement (if such settlement is approved
in advance by the Corporation, which approval shall not be
unreasonably withheld) actually and reasonably incurred by Indemnitee
in connection with investigating, preparing for, defending or settling
such action or proceeding. The Corporation hereby agrees to indemnify
Indemnitee's spouse (whether by statute or at common law and without
regard to the location of the governing jurisdiction) and children as
express third-party beneficiaries hereunder to the same extent and
subject to the same limitations applicable to Indemnitee hereunder for
claims arising out of the status of such person as a spouse or child
of Indemnitee, including claims seeking damages from marital property
(including community property) or property held by the Indemnitee and
such spouse or property transferred to such spouse or child.
(b) Proceedings By or in the Right of the
Corporation. Subject to the provisions of these Bylaws, the
Corporation shall indemnify Indemnitee if Indemnitee was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or proceeding by or in the right of the Corporation
or any subsidiary of the Corporation to procure a judgment in its
favor by reason of Indemnitee's past, present or future service as a
Director of the Corporation, or, at the Corporation's request, of
another enterprise or entity in which the Corporation had, directly or
indirectly, an interest at the time of such service, against expenses
(including attorneys' fees) and, to the fullest extent permitted by
law, amounts paid in settlement, in each case to the extent actually
and reasonably incurred by Indemnitee in connection with the defense
or settlement of such action or proceeding.
7.02 EXPENSES; INDEMNIFICATION PROCEDURE.
(a) Advancement of Expenses. The Corporation
shall advance all expenses incurred by Indemnitee in
connection with the investigation, defense, settlement or
appeal of any civil or criminal action or proceeding
referenced in Section 7.01(a) or (b) hereof (but not amounts
actually paid in settlement of any such action or proceeding).
Indemnitee hereby undertakes to repay such amounts advanced
only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
by the Corporation as authorized hereby. The advances to be
made hereunder shall be paid by the Corporation to Indemnitee
within twenty (20) days following delivery of a written
request therefor by Indemnitee to the Corporation.
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<PAGE> 23
(b) Notice/Cooperation by Indemnitee. Indemnitee
shall, as a condition precedent to his right to be indemnified
under these Bylaws, give the Corporation notice in writing as
soon as practicable of any claim made against Indemnitee for
which indemnification will or could be sought under these
Bylaws. Such notice shall contain the written affirmation of
the Indemnitee that the standard of conduct necessary for
indemnification hereunder has been satisfied. Notice to the
Corporation shall be directed to the Chief Executive Officer
of the Corporation in the manner set forth below. Indemnitee
shall give the Corporation such information and cooperation as
it may reasonably require and as shall be within Indemnitee's
power. A delay in giving notice under this Section 7.02(b)
shall not invalidate the Indemnitee's right to indemnity under
these Bylaws unless such delay prejudices the defense of the
claim or the availability to the Corporation of insurance
coverage for such claim. All notices, requests, demands and
other communications under these Bylaws shall be in writing
and shall be deemed duly given (i) if delivered by hand and
receipted for by the party addressed, on the date of such
receipt or (ii) if mailed by domestic certified or registered
mail with postage prepaid, on the third business day after the
date postmarked. Addresses for notice to either party are as
shown on the signature page of these Bylaws, or as
subsequently modified by written notice.
(c) Procedure. Any indemnification provided for
in Section 7.01 shall be made no later than forty-five (45)
days after receipt of the written request of Indemnitee. If a
claim under any statute, or under any provision of the
Corporation's Articles of Incorporation or these Bylaws
providing for indemnification, is not paid in full by the
Corporation within forty-five (45) days after a written
request for payment thereof that complies with the
requirements of these Bylaws has first been received by the
Corporation, Indemnitee may, but need not, at any time
thereafter bring an action against the Corporation to recover
the unpaid amount of the claim and, subject to Section 7.11 of
these Bylaws, Indemnitee shall also be entitled to be paid for
the expenses (including attorneys' fees) of bringing such
action. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in
connection with any action or proceeding in advance of its
final disposition) that Indemnitee has not met the standards
of conduct that made it permissible under applicable law for
the Corporation to indemnify Indemnitee for the amount
claimed, but Indemnitee shall be entitled to receive interim
payments of expenses pursuant to Subsection 7.02(a) unless and
until such defense may be finally adjudicated by court order
or judgment from which no further right of appeal exists. It
is the parties' intention that if the Corporation contests
Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be for the court
to decide, and neither the failure of the Corporation
(including its Board of Directors, any committee or subgroup
of the Board of Directors, independent legal counsel, or its
shareholders) to have made a determination that
indemnification of Indemnitee is proper in the circumstances
because Indemnitee has met the applicable standard of conduct
required by applicable law, nor an actual determination by the
Corporation (including its Board of Directors, any committee
or
18
<PAGE> 24
subgroup of the Board of Directors, independent legal counsel,
or its shareholders) that Indemnitee has not met such
applicable standard of conduct, shall create a presumption
that Indemnitee has or has not met the applicable standard of
conduct.
(d) Notice to Insurers. If, at the time of the
receipt of a notice of a claim pursuant to Section 7.02(a)
hereof, the Corporation has director and officer liability
insurance in effect, the Corporation shall give prompt notice
of the commencement of such proceeding to the insurers in
accordance with the procedures set forth in the respective
policies. The Corporation shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf
of the Indemnitee, all amounts payable as a result of such
proceeding in accordance with the terms of such policies.
(e) Selection of Counsel. In the event the
Corporation shall be obligated under Section 7.02(a) hereof to
pay the expenses of any proceeding against Indemnitee, the
Corporation, unless the Indemnitee determines that a conflict
of interest exists between the Indemnitee and the Corporation
with respect to a particular claim, shall be entitled to
assume the defense of such proceeding, with counsel approved
by Indemnitee, which approval shall not be unreasonably
withheld, upon the delivery to Indemnitee of written notice of
its election so to do. After delivery of such notice,
approval of such counsel by Indemnitee and the retention of
such counsel by the Corporation, the Corporation will be not
be liable to Indemnitee under these Bylaws for any fees of
counsel subsequently incurred by Indemnitee with respect to
the same proceeding, provided that (i) Indemnitee shall have
the right to employ his own separate counsel in any such
proceeding in addition to or in place of any counsel retained
by the Corporation on behalf of Indemnitee at Indemnitee's
expense; and (ii) if (A) the employment of counsel by
Indemnitee has been previously authorized by the Corporation,
(B) Indemnitee shall have concluded that there may be a
conflict of interest between the Corporation and Indemnitee in
the conduct of any such defense or (C) the Corporation shall
not, in fact, have employed counsel to assume the defense of
such proceeding, then the fees and expenses of Indemnitee's
counsel shall be at the expense of the Corporation.
7.03 NONEXCLUSIVITY OF INDEMNIFICATION RIGHTS. The indemnification
provided by these Bylaws shall not be deemed exclusive of any rights to which
Indemnitee may be entitled under the Corporation's Articles of Incorporation,
any agreement, any vote of
19
<PAGE> 25
stockholders or disinterested directors, the Maryland General Corporation Law,
or otherwise, both as to action in Indemnitee's official capacity and as to
action in another capacity while holding such office. The provisions of this
Article VII shall constitute a contract with each Indemnitee who serves at any
time while these provisions are in effect and may be modified adversely only as
provided in Article X hereof, and each Indemnitee shall be deemed to be serving
as such in reliance on these provisions.
7.04 PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any
provision of these Bylaws to indemnification by the Corporation for some or a
portion of the expenses, judgments, fines or penalties actually or reasonably
incurred by him in the investigation, defense, appeal or settlement of any
civil or criminal action or proceeding, but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify Indemnitee for the
portion of such expenses, judgments, fines or penalties to which Indemnitee is
entitled.
7.05 MUTUAL ACKNOWLEDGMENT. By accepting any potential benefits
under this Article VII, each Indemnitee acknowledges that in certain instances,
Federal law or applicable public policy may prohibit the Corporation from
indemnifying its directors and officers under these Bylaws or otherwise.
Indemnitee understands and acknowledges that the Corporation has undertaken and
may be required in the future to undertake with the Securities and Exchange
Commission to submit the question of indemnification to a court in certain
circumstances for a determination of the Corporation's right under public
policy to indemnify Indemnitee.
7.06 INSURANCE. The Corporation shall have the power to purchase
and maintain insurance on behalf of any Indemnified Person against any
liability, whether or not the Corporation would have the power to indemnify him
or her against such liability.
7.07 SEVERABILITY. Nothing in this Agreement is intended to
require or shall be construed as requiring the Company to do or fail to do any
act in violation of applicable law. The Company's inability, pursuant to court
order, to perform its obligations under this Agreement shall not constitute a
breach of this Agreement. The provisions of this Agreement shall be severable
as provided in this Section 7.07. If this Agreement or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify Indemnitee to the full extent
permitted by any applicable portion of this Agreement that shall not have been
invalidated, and the balance of this Agreement not so invalidated shall be
enforceable in accordance with its terms.
7.08 EXCEPTIONS. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify the Indemnitee in the following circumstances:
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<PAGE> 26
(a) Excluded Acts. The Company shall not be
obligated to indemnify Indemnitee for any acts or omissions or
transactions from which a director may not be relieved of liability
under the Maryland General Corporation Law.
(b) Claims Initiated by Indemnitee. The Company
shall not be obligated to indemnify or advance expenses to Indemnitee
with respect to proceedings or claims initiated or brought voluntarily
by Indemnitee and not by way of defense, except with respect to
proceedings brought to establish or enforce a right to indemnification
under this Agreement or any other statute or law or otherwise as
provided by Maryland General Corporation Law Section 2-418 in
accordance with Section 1(b) hereof, but such indemnification or
advancement of expenses may be provided by the Company in specific
cases if the Board of Directors has approved the initiation or
bringing of such suit; or
(c) Insured Claims. The Company shall not be
obligated to indemnify Indemnitee for expenses or liabilities of any
type whatsoever (including, but not limited to, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) to the
extent that Indemnitee has otherwise actually received payment, or
payments have been made on behalf of Indemnitee, with respect to such
expense or liability (under any insurance policy, provision of the
Company's Articles of Incorporation or Bylaws, or otherwise) of
amounts otherwise indemnifiable hereunder; or
(d) Claims Under Section 16(b). The Company
shall not be obligated to indemnify Indemnitee for expenses and the
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange
Act of 1934, as amended, or any similar successor statute.
7.09 CONSTRUCTION OF CERTAIN PHRASES
(a) For purposes of this Article VII, references
to the "Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority
to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, Indemnitee shall stand in the same position under the
provisions of this Agreement with respect to the resulting or
surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
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<PAGE> 27
(b) For purposes of this Article VII, references
to "another enterprise" or "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes
assessed on Indemnitee with respect to an employee benefit plan; and
references to "serving at the request of the Company" shall include
any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan,
its participants, or beneficiaries.
7.10 SUCCESSORS AND ASSIGNS. These Bylaws shall be binding upon
the Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee's estate, heirs, legal representatives and assigns.
7.11 ATTORNEYS' FEES. In the event that any action is instituted
by Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, Indemnitee shall be entitled to be paid all court costs and expenses,
including reasonable attorneys' fees, incurred by Indemnitee with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In
the event of an action instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys' fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee's counterclaims and cross-claims made in such
action), unless as a part of such action the court determines that each of
Indemnitee's material defenses to such action were made in bad faith or were
frivolous.
ARTICLE VIII
NOTICES
8.01 NOTICES. Except as provided in Section 1.05 and Section 2.07,
whenever notice is required to be given pursuant to these Bylaws, it shall be
construed to mean either written notice personally served against written
receipt, or notice in writing transmitted by mail, by depositing the same in a
post office or letter box, in a post-paid sealed wrapper, addressed, if to the
Corporation, 11 Burtis Avenue, New Canaan, Connecticut 06840 (or any subsequent
address selected by the Board of Directors), attention President, or if to a
Stockholder, Director or Officer, at the address of such person as it appears
on the books of the Corporation or in default of any other address at the
general post office situated in the city or county of his or her residence.
Unless otherwise specified, notice sent by mail shall be deemed to be given at
the time mailed.
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8.02 SECRETARY TO GIVE NOTICE. All notices required by law or
these Bylaws to be given by the Corporation shall be given by the Secretary or
any other officer of the Corporation designated by the President. If the
Secretary and Assistant Secretary are absent or refuse or neglect to act, the
notice may be given by any person directed to do so by the President or, with
respect to any meeting called pursuant to these Bylaws upon the request of any
Stockholders or Directors, by any person directed to do so by the Stockholders
or Directors upon whose request the meeting is called.
8.03 WAIVER OF NOTICE. Whenever any notice is required to be given
pursuant to the Charter 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 therein, 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 IX
MISCELLANEOUS
9.01 BOOKS AND RECORDS. The Corporation shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its Stockholders and Board of Directors meetings and of its
executive or other committees when exercising any of the powers or authority of
the Board of Directors. The books and records of the Corporation may be in
written form or in any other form that be converted within a reasonable time
into written form for visual inspection. Minutes shall be recorded in written
form, but may be maintained in the form of a reproduction.
9.02 INSPECTION OF BYLAWS AND CORPORATE RECORDS. Stockholders of
the Corporation may, upon written request at any reasonable time during usual
business hours and for a purpose reasonably related to such holder's interests
as a Stockholder, inspect such books and records of the Corporation as are
consistent with, and in each case to the extent permitted by, the Maryland
General Corporation Law, as from time to time amended. The Corporation may
require, as a condition to such inspection, that such Stockholder enter into a
written confidentiality agreement reasonably satisfactory to the Corporation
with respect to any information not publicly available.
9.03 CONTRACTS. The Board of Directors may authorize any
Officer(s) or agent(s) to enter into any contract or to execute and deliver any
instrument in the name of and
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on behalf of the Corporation, and such authority may be general or confined to
specific instances.
9.04 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such Officers or agents of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
9.05 LOANS.
9.5.1. Such Officers or agents of the Corporation as from
time to time have been designated by the Board of Directors shall have
authority (i) to effect loans, advances, or other forms of credit at any time
or times for the Corporation, from such banks, trust companies, institutions,
corporations, firms, or persons, in such amounts and subject to such terms and
conditions, as the Board of Directors from time to time has designated; (ii) as
security for the repayment of any loans, advances, or other forms of credit so
authorized, to assign, transfer, endorse, and deliver, either originally or in
addition or substitution, any or all personal property, real property, stocks,
bonds, deposits, accounts, documents, bills, accounts receivable, and other
commercial paper and evidences of debt or other securities, or any rights or
interests at any time held by the Corporation; (iii) in connection with any
loans, advances, or other forms of credit so authorized, to make, execute, and
deliver one or more notes, mortgages, deeds of trust, financing statements,
security agreements, acceptances, or written obligations of the Corporation, on
such terms and with such provisions as to the security or sale or disposition
of them as those Officers or agents deem proper; and (iv) to sell to, or
discount or rediscount with, the banks, trust companies, institutions,
corporations, firms or persons making those loans, advances, or other forms of
credit, any and all commercial paper, bills, accounts receivable, acceptances,
and other instruments and evidences of debt at any time held by the
Corporation, and, to that end, to endorse, transfer, and deliver the same.
9.5.2. From time to time the Corporation shall certify to
each bank, trust company, institution, corporation, firm or person so
designated, the signatures of the Officers or agents so authorized. Each bank,
trust company, institution, corporation, firm or person so designated is
authorized to rely upon such certification until it has received written notice
that the Board of Directors has revoked the authority of those Officers or
agents.
9.06 FISCAL 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, and, in the absence of such resolution, the fiscal year shall be
the period ending December 31.
9.07 ANNUAL REPORT. Not later than 120 days after the close of
each fiscal year, the Board of Directors of the Corporation shall cause to be
sent to the Stockholders an Annual Report in such form as may be deemed
appropriate by the Board of Directors. The
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<PAGE> 30
Annual Report shall include audited financial statements and shall be
accompanied by the report thereon of an independent certified public
accountant.
9.08 INTERIM REPORTS. The Corporation may send interim reports to
the Stockholders having such form and content as the Board of Directors deem
proper.
9.09 OTHER REPORTS. Any distributions to Stockholders of income or
capital assets shall be accompanied by a written statement disclosing the
source of the funds distributed unless at the time of distribution they are
accompanied by a written explanation of the relevant circumstances. The
statement as to such source shall be sent to the Stockholders not later than
sixty (60) days after the close of the fiscal year in which the distributions
were made.
9.10 BYLAWS SEVERABLE. The provisions of these Bylaws are
severable, and if any provision shall be held invalid or unenforceable, that
invalidity or unenforceability shall attach only to that provision and shall
not in any manner affect or render invalid or unenforceable any other provision
of these Bylaws, and these Bylaws shall be carried out as if the invalid or
unenforceable provision were not contained herein.
ARTICLE X
AMENDMENT OF BYLAWS
10.1 BY DIRECTORS. The Board of Directors shall have the power, at
any annual or regular meeting, or at any special meeting if notice thereof is
included in the notice of such special meeting, to alter or repeal any Bylaws
of the Corporation and to make new Bylaws, except that the Board of Directors
shall not alter or repeal (i) Section 7.01 without the consent of any
Indemnified Persons whose rights to indemnification, based on conduct prior to
such amendment, would be adversely affected by such proposed alteration or
repeal; (ii) this Section 10.1; or (iii) Section 10.2.
10.2 BY STOCKHOLDERS. The Stockholders, by affirmative vote of a
majority of the shares of common stock of the Corporation, shall have the
power, at any annual meeting (subject to the requirements of Section 1.03), or
at any special meeting if notice thereof is included in the notice of such
special meeting, to alter or repeal any Bylaws of the Corporation and to make
new Bylaws except that the Stockholders shall not alter or repeal Section 7.01
without the consent of any Indemnified Persons adversely affected by such
proposed alteration or repeal.
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APPENDIX A - CORPORATE AUTHORITY OF OFFICERS OF AVALON PROPERTIES, INC.
<TABLE>
<CAPTION>
==============================================================================================================================
ACTION: Any agreement, deed, lease, filing, Any nonbinding letter Any
instrument or other document that is necessary of intent or other agreement
or proper for the ordinary course of instrument, certificate relating to
business of the Corporation, including but not or other document that the
limited to (i) documents relating to the by its terms does not management
leasing of apartments and other spaces; (ii) contractually obligate of property
the removal of tenants; the initiation and the Corporation to owned by
defense of civil lawsuits against tenants, acquire or assume any third
former tenants, suppliers and former liabilities in respect parties.
suppliers; (iii) the ordinary renovation of any real property,
and replacement of the assets of the whether improved or
Corporation; (iv) the commencement of unimproved.
construction or renovation that has been
authorized by the Board of Directors; (v) the
acquisition or disposition of fee, leasehold
or other interests in apartment communities
or other real property and the development of
apartment communities (including without
limitation the acquisition of interests in
land) which has been authorized by the Board
of Directors and not exceeding $50,000,000,
provided, however, that, in the absence of any
additional authority expressly granted by
these Bylaws or the Articles of Incorporation,
in each case as amended from time to time, or
resolution of the Board of Directors, only the
Chief Executive Officer and President, and
each of them acting singly, may execute
documents relating to transactions described
in this clause (vii) on behalf of the
Corporation involving more than $50,000,000.
OFFICER TITLE:
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHAIRMAN OF THE BOARD Yes Yes Yes
- ------------------------------------------------------------------------------------------------------------------------------
PRESIDENT Yes Yes Yes
- ------------------------------------------------------------------------------------------------------------------------------
CHIEF FINANCIAL OFFICER Yes Yes Yes
- ------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT OF Yes Yes
DEVELOPMENT
- ------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR
CONSTRUCTION
- ------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR Yes
PROPERTY OPERATIONS
- ------------------------------------------------------------------------------------------------------------------------------
SECRETARY Yes Yes Yes
- ------------------------------------------------------------------------------------------------------------------------------
TREASURER Yes Yes
- ------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT Yes
- ------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF FINANCE Yes
- ------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF Yes Yes Yes
DEVELOPMENT
- ------------------------------------------------------------------------------------------------------------------------------
CONSTRUCTION VICE
PRESIDENT
- ------------------------------------------------------------------------------------------------------------------------------
RESIDENTIAL SERVICE VICE
PRESIDENT
- ------------------------------------------------------------------------------------------------------------------------------
REGIONAL MANAGER
- ------------------------------------------------------------------------------------------------------------------------------
PROJECT MANAGER
- ------------------------------------------------------------------------------------------------------------------------------
PROPERTY MANAGER
- ------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT DIRECTOR
- ------------------------------------------------------------------------------------------------------------------------------
ACQUISITION DIRECTOR
- ------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT ASSOCIATE
==============================================================================================================================
</TABLE>
26
<PAGE> 32
<TABLE>
<CAPTION>
==================================================================================================================================
ACTION: Any agreement relating Any document or filing Any agreement relating
to the development, relating to the to (A) the Corporation's
construction or Corporation's audit and finances, including but
rehabilitation of real accounting practices, not limited to the
estate, including but provided, however, that no borrowing and repayment of
not limited to vendor authority is hereby debt and management of
credit arrangements, granted for actions that interest rate exposure,
local jurisdiction are otherwise the (B) after approval of the
agreements, responsibilities of Audit Board of Directors, any
agreements with Committee of the Board of contract or instrument
subcontractors and Directors. relating to tax exempt
bonding agreements. financing or construction
financing with respect to
communities or properties
acquired, owned
or operated by the
Corporation and (C) any
lease of property or
equipment necessary or
proper in connection with
the conduct of the
business affairs of the
Corporation; provided,
however, that the
approval of the Board of
Directors shall be
required for borrowings of
or assumed by the
Corporation that exceed
$1,000,000.
OFFICER TITLE:
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CHAIRMAN OF THE BOARD Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
PRESIDENT Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
CHIEF FINANCIAL OFFICER Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT OF Yes Yes
DEVELOPMENT
- ----------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR Yes
CONSTRUCTION
- ----------------------------------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR Yes
PROPERTY OPERATIONS
- ----------------------------------------------------------------------------------------------------------------------------------
SECRETARY Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
TREASURER Yes Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT Yes
- ----------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF FINANCE Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF DEVELOPMENT Yes Yes
- ----------------------------------------------------------------------------------------------------------------------------------
CONSTRUCTION VICE PRESIDENT Yes
- ----------------------------------------------------------------------------------------------------------------------------------
RESIDENTIAL SERVICE VICE Yes
PRESIDENT
- ----------------------------------------------------------------------------------------------------------------------------------
REGIONAL MANAGER
- ----------------------------------------------------------------------------------------------------------------------------------
PROJECT MANAGER
- ----------------------------------------------------------------------------------------------------------------------------------
PROPERTY MANAGER
- ----------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT DIRECTOR
- ----------------------------------------------------------------------------------------------------------------------------------
ACQUISITION DIRECTOR
- ----------------------------------------------------------------------------------------------------------------------------------
DEVELOPMENT ASSOCIATE
==================================================================================================================================
</TABLE>
27
<PAGE> 33
<TABLE>
<CAPTION>
===========================================================================================================
ACTION: (A) leases, contracts and (A) agreements and
purchase agreements in the contracts with independent
ordinary course of business service providers and
involving amounts not exceeding subcontractors for services
$100,000 and (B) documents relating relating to the business and
to the leasing of apartments and assets of the Corporation not
other spaces, the removal of involving amounts in excess of
tenants, the initiation and defense $10,000 and (B) applications
of civil lawsuits against for ordinary and customary
tenants, former tenants, suppliers governmental approvals and
and former suppliers and permits relating to communities
commencement of tax appeals and acquired or developed or to be
related proceedings and the acquired or developed by the
settlement of such proceedings. Corporation.
OFFICER TITLE:
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C>
CHAIRMAN OF THE BOARD Yes Yes
- -----------------------------------------------------------------------------------------------------------
PRESIDENT Yes Yes
- -----------------------------------------------------------------------------------------------------------
CHIEF FINANCIAL OFFICER Yes Yes
- -----------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT OF Yes Yes
DEVELOPMENT
- -----------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR Yes
CONSTRUCTION
- -----------------------------------------------------------------------------------------------------------
SENIOR VICE PRESIDENT FOR Yes
PROPERTY OPERATIONS
- -----------------------------------------------------------------------------------------------------------
SECRETARY Yes Yes
- -----------------------------------------------------------------------------------------------------------
TREASURER Yes Yes
- -----------------------------------------------------------------------------------------------------------
VICE PRESIDENT Yes
- -----------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF FINANCE Yes Yes
- -----------------------------------------------------------------------------------------------------------
VICE PRESIDENT OF Yes Yes
DEVELOPMENT
- -----------------------------------------------------------------------------------------------------------
CONSTRUCTION VICE Yes
PRESIDENT
- -----------------------------------------------------------------------------------------------------------
RESIDENTIAL SERVICE VICE Yes
PRESIDENT
- -----------------------------------------------------------------------------------------------------------
REGIONAL MANAGER Yes
- -----------------------------------------------------------------------------------------------------------
PROJECT MANAGER
- -----------------------------------------------------------------------------------------------------------
PROPERTY MANAGER
- -----------------------------------------------------------------------------------------------------------
DEVELOPMENT DIRECTOR Yes
- -----------------------------------------------------------------------------------------------------------
ACQUISITION DIRECTOR Yes
- -----------------------------------------------------------------------------------------------------------
DEVELOPMENT ASSOCIATE Yes
===========================================================================================================
</TABLE>
28
<PAGE> 34
The foregoing are certified as the Bylaws of the Corporation adopted
by the Board of Directors as of February 15, 1995.
----------------------------------------
Thomas J. Sargeant, Secretary
29
