JP REALTY, INC.
AMENDED AND RESTATED BY-LAWS
[AS AMENDED AND RESTATED THROUGH MAY 3, 2000]
ARTICLE I.
STOCKHOLDERS
SECTION 1.01. ANNUAL MEETING. The Corporation shall hold an annual
meeting of its stockholders to elect directors and transact any other
business within its powers, either at 10:00 a.m. on the fifth Wednesday
after March 31st in each year if not a legal holiday, or at such other
time on such other day falling on or before the 30th day thereafter as
shall be set by the Board of Directors. Except as the Charter or statute
provides otherwise, any business may be considered at an annual meeting
without the purpose of the meeting having been specified in the notice.
Failure to hold an annual meeting does not invalidate the Corporation's
existence or affect any otherwise valid corporate acts.
SECTION 1.02. SPECIAL MEETING. At any time in the interval between
annual meetings, a special meeting of the stockholders may be called by the
Chairman of the Board or the President or by a majority of the Board of
Directors by vote at a meeting or in writing (addressed to the Secretary of
the Corporation) with or without a meeting. Subject to the procedures set
forth in Section 1.11 and this Section, special meetings of the
stockholders shall be called by the Secretary at the request of
stockholders only on the written request of stockholders entitled to cast
at least a majority of all the votes entitled to be cast at the meeting. A
request for a special meeting shall state the purpose of the meeting and
the matters proposed to be acted on at it. The Secretary shall inform the
stockholders who make the request of the reasonably estimated costs of
preparing and mailing a notice of the meeting and, on payment of these
costs to the Corporation, notify each stockholder entitled to notice of the
meeting. The Board of Directors shall have sole power to fix the date and
time of the special meeting.
SECTION 1.03. PLACE OF MEETINGS. Unless the Charter provides
otherwise, meetings of stockholders shall be held at such place as is set
from time to time by the Board of Directors.
SECTION 1.04. NOTICE OF MEETINGS; WAIVER OF NOTICE. Not less than
ten nor more than 90 days before each stockholders' meeting, the Secretary
shall give written notice of the meeting to each stockholder entitled to
vote at the meeting and each other stockholder entitled to notice of the
meeting. The notice shall state the time and place of the meeting and, if
the meeting is a special meeting or notice of the purpose is required by
statute, the purpose of the meeting. Notice is given to a stockholder when
it is personally delivered to him or her, left at his or her residence or
usual place of business, or mailed to him or her at his or her address as
it appears on the records of the Corporation or transmitted to the
stockholder by electronic mail to any electronic mail address of the
stockholder or by any other electronic means. Notwithstanding
the foregoing provisions, each person who is entitled to notice
waives notice if he or she before or
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after the meeting signs a waiver of the notice which is filed with the
records of stockholders' meetings, or is present at the meeting in person
or by proxy.
SECTION 1.05. QUORUM; VOTING. Unless any statute or the Charter
provides otherwise, at a meeting of stockholders the presence in person or
by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at the meeting constitutes a quorum, and a majority of
all the votes cast at a meeting at which a quorum is present is sufficient
to approve any matter which properly comes before the meeting, except that
a plurality of all the votes cast at a meeting at which a quorum is present
is sufficient to elect a director.
SECTION 1.06. ADJOURNMENTS. Whether or not a quorum is present, a
meeting of stockholders convened on the date for which it was called may be
adjourned from time to time without further notice by a majority vote of
the stockholders present in person or by proxy to a date not more than 120
days after the original record date. Any business which might have been
transacted at the meeting as originally notified may be deferred and
transacted at any such adjourned meeting at which a quorum shall be
present.
SECTION 1.07. GENERAL RIGHT TO VOTE; PROXIES. Unless the Charter
provides for a greater or lesser number of votes per share or limits or
denies voting rights, each outstanding share of stock, regardless of class,
is entitled to one vote on each matter submitted to a vote at a meeting of
stockholders; however, a share is not entitled to be voted if any
installment payable on it is overdue and unpaid. In all elections for
directors, each share of stock may be voted for as many individuals as
there are directors to be elected and for whose election the share is
entitled to be voted. A stockholder may vote the stock the stockholder
owns of record either in person or by proxy. A stockholder may sign a
writing authorizing another person to act as proxy. Signing may be
accomplished by the stockholder or the stockholder's authorized agent
signing the writing or causing the stockholder's signature to be affixed to
the writing by any reasonable means, including facsimile signature. A
stockholder may authorize another person to act as proxy by transmitting,
or authorizing the transmission of, an authorization by a telegram,
cablegram, datagram, electronic mail or any other electronic or telephonic
means to the person authorized to act as proxy or to any other person
authorized to receive the proxy authorization on behalf of the person
authorized to act as the proxy, including a proxy solicitation firm or
proxy support service organization. Unless a proxy provides otherwise, it
is not valid more than 11 months after its date. A proxy is revocable by a
stockholder at any time without condition or qualification unless the proxy
states that it is irrevocable and the proxy is coupled with an interest. A
proxy may be made irrevocable for so long as it is coupled with an
interest. The interest with which a proxy may be coupled includes an
interest in the stock to be voted under the proxy or another general
interest in the Corporation or its assets or liabilities.
SECTION 1.08. LIST OF STOCKHOLDERS. At each meeting of stockholders,
a full, true and complete list of all stockholders entitled to vote at such
meeting, showing the number and class of shares held by each and certified
by the transfer agent for such class or by the Secretary, shall be
furnished by the Secretary.
SECTION 1.09. CONDUCT OF BUSINESS. Nominations of persons for
election to the Board of Directors and the proposal of business to be
considered by the stockholders may be
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made at an annual meeting of stockholders (a) pursuant to the Corporation's
notice of meeting, (b) by or at the direction of the Board of Directors or
(c) by any stockholder of the Corporation (i) who was a stockholder of
record at the time of giving notice(s) provided for in Section 1.11 and
Section 1.12, (ii) who is entitled to vote at the meeting and (iii) who
complied with the notice(s) procedures set forth in Section 1.11 and Section
1.12. Nominations of persons for election to the Board of Directors and the
proposal of business to be considered by the stockholders may be made at a
special meeting of stockholders (a) only pursuant to the Corporation's notice
of meeting and (b), in the case of nominations of persons for election to
the Board of Directors, (i) by or at the direction of the Board of Directors
or (ii) by any stockholder of the Corporation (A) who was a stockholder of
record at the time of giving notice provided for in Section 1.11, (B) who is
entitled to vote at the meeting and (C) who complied with the notice procedures
set forth in Section 1.11. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set
forth in Section 1.11, Section 1.12 and this Section and, if any proposed
nomination or business is not in compliance with Section 1.11, Section 1.12
and this Section, to declare that such defective nomination or proposal be
disregarded.
SECTION 1.10. CONDUCT OF VOTING. At all meetings of stockholders,
unless the voting is conducted by inspectors, the proxies and ballots shall
be received, and all questions touching the qualification of voters and the
validity of proxies, the acceptance or rejection of votes and procedures
for the conduct of business not otherwise specified by these By-Laws, the
Charter or law, shall be decided or determined by the chairman of the
meeting. If demanded by stockholders, present in person or by proxy,
entitled to cast 10% in number of votes entitled to be cast, or if ordered
by the chairman of the meeting, the vote upon any election or question
shall be taken by ballot. Before any meeting of the stockholders, the
Board of Directors may appoint persons to act as inspectors of election at
the meeting and any adjournment thereof. If no inspectors of election are
so appointed, the chairman of the meeting may, and on the request of
stockholders, present in person or by proxy, entitled to cast 10% in number
of votes entitled to be cast, shall, appoint inspectors of election at the
meeting. The number of inspectors shall be either one or three. If
inspectors are appointed at a meeting on the request of stockholders, the
holders of a majority of shares present in person or by proxy shall
determine whether one or three inspectors are to be appointed. No
candidate for election as a director at a meeting shall serve as an
inspector thereat. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and upon the
request of any stockholder shall, appoint a person to fill that vacancy.
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence
of a quorum, and the authenticity, validity and effect of proxies; receive
votes, ballots or consents; hear and determine all challenges and questions
in any way arising in connection with the right to vote; count and tabulate
all votes or consents; determine when polls shall close; determine the
result; and do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders. Unless so demanded or ordered, no
vote need be by ballot and voting need not be conducted by inspectors.
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SECTION 1.11. ADVANCE NOTICE PROVISIONS FOR ELECTION OF
DIRECTORS. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may be made
at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing directors, (a) by or at the
direction of the Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for
in this Section and on the record date for the determination of
stockholders entitled to vote at such meeting and (ii) who complies with
the notice procedures set forth in this Section. A stockholder's notice
must be delivered to or mailed and received by the Secretary at the
principal executive offices of the Corporation (a) in the case of an annual
meeting, not more than 120 days and not less than 90 days prior to the
earliest of (i) such annual meeting, (ii) the first anniversary of the
mailing date of the notice of the preceding year's annual meeting and (iii)
the first anniversary of the preceding year's annual meeting; PROVIDED,
HOWEVER, that in the event that the date of the annual meeting is advanced
by more than 30 days or delayed by more than 60 days from such anniversary
date, notice by the stockholder must be so delivered not earlier than the
120th day prior to such annual meeting and not later than the close of
business on the later of the 90th day prior to such annual meeting or the
tenth day following the day on which public announcement of the date of
such meeting is first made; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than
the close of business on the tenth day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date
of the special meeting was made, whichever first occurs. A stockholder's
notice to the Secretary must be in writing and set forth (a) as to each
person whom the stockholder proposes to nominate for election as a
director, all information relating to such person that is required to be
disclosed in connection with solicitations of proxies for election of
directors pursuant to Regulation 14A of the Exchange Act, and the rules and
regulations promulgated thereunder; and (b) as to the stockholder giving
the notice (i) the name and address of such stockholder as they appear on
the Corporation's books and of the beneficial owner, if any, on whose
behalf the nomination is made, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or
of record by such stockholder and such beneficial owner, (iii) a
description of all arrangements or understandings between such stockholder
and each proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made by such
stockholder, (iv) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for
election of directors pursuant to Regulation 14A of the Exchange Act and
the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to be named as a
nominee and to serve as a director if elected. No person shall be eligible
for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section. If the chairman
of the meeting determines that a nomination was not made in accordance with
the foregoing procedures, the chairman of the meeting shall declare to the
meeting that the nomination was defective and such defective nomination
shall be disregarded. No adjournment
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or postponement of a meeting of stockholders shall commence a new period
for the giving of notice of a stockholder proposal hereunder.
SECTION 1.12. ADVANCE NOTICE PROVISIONS FOR BUSINESS TO BE TRANSACTED
AT ANNUAL MEETING. No business may be transacted at an annual meeting of
stockholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by or at the direction
of the Board of Directors (or any duly authorized committee thereof) or (c)
otherwise properly brought before the annual meeting by any stockholder of
the Corporation (i) who is stockholder of record on the date of the giving
of the notice provided for in this Section and on the record date for the
determination of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in this Section. A
stockholder's notice must be delivered to or mailed and received by the
Secretary at the principal executive offices of the Corporation not more
than 120 days and not less than 90 days prior to the earliest of (a) such
annual meeting, (b) the first anniversary of the mailing date of the notice
of the preceding year's annual meeting and (c) the first anniversary of the
preceding year's annual meeting; PROVIDED, HOWEVER, that in the event that
the date of the annual meeting is advanced by more than 30 days or delayed
by more than 60 days from such anniversary date, notice by the stockholder
must be so delivered not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first made. A
stockholder's notice to the Secretary must in writing and set forth as to
each matter such stockholder proposes to bring before the annual meeting
(i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address of such stockholder as they appear on
the Corporation's books and of the beneficial owner, if any, on whose
behalf the proposal is made, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such stockholder and such beneficial owner, (iv) a description of
all arrangements or understandings between such stockholder and any other
person or persons (including their names) in connection with the proposal
of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting. No business shall be conducted at the annual
meeting of stockholders except business brought before the annual meeting
in accordance with the procedures set forth in Section 1.11 or in this
Section, PROVIDED, HOWEVER, that once business has been properly brought
before the annual meeting in accordance with such procedures, nothing in
Section 1.11 nor in this Section shall be deemed to preclude discussion by
any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting
in accordance with the foregoing procedures, the chairman of the meeting
shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted. No
adjournment or postponement of a meeting of stockholders shall commence a
new period for the giving of notice of a stockholder proposal hereunder.
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SECTION 1.13. INFORMAL ACTION BY STOCKHOLDERS. Any action required
or permitted to be taken at a meeting of stockholders may be taken without
a meeting if there is filed with the records of stockholders meetings an
unanimous written consent which sets forth the action and is signed by each
stockholder entitled to vote on the matter and a written waiver of any
right to dissent signed by each stockholder entitled to notice of the
meeting but not entitled to vote at it.
ARTICLE II.
BOARD OF DIRECTORS
SECTION 2.01. FUNCTION OF DIRECTORS. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors.
All powers of the Corporation may be exercised by or under the authority of
the Board of Directors, except as conferred on or reserved to the
stockholders by statute, the Charter or these By-Laws. The Corporation
elects to be subject to all of the provisions of Title 3, Subtitle 8 of the
Maryland General Corporation Law, except that, with respect to removal of
directors, the provisions of Article Seventh, Section (d) of the Charter
shall apply.
SECTION 2.02. NUMBER OF DIRECTORS. The Corporation shall have at
least three directors; provided that, if there is no stock outstanding, the
number of directors may be less than three but not less than one, and, if
there is stock outstanding and so long as there are less than three
stockholders, the number of directors may be less than three but not less
than the number of stockholders. The Corporation shall have the number of
directors provided in the Charter until changed as herein provided. Except
as the Charter provides otherwise, only a majority of the entire Board of
Directors may alter the number of directors set by the Charter to not
exceeding 15 nor less than the minimum number then permitted herein, but
the action may not affect the tenure of office of any director.
SECTION 2.03. ELECTION AND TENURE OF DIRECTORS. Subject to the rights
of holders of Price Group Stock, the Board of Directors of the Corporation
is divided into three classes in accordance with Section 3-803 of the
Maryland General Corporation Law as follows:
(a) The term of office of Class I directors shall be until
the 2000 annual meeting of stockholders and until their
successors shall be elected and have qualified and thereafter
shall be for three years and until their successors shall be
elected and have qualified;
(b) the term of office of Class II directors shall be until
the 2001 annual meeting of stockholders and until their
successors shall be elected and have qualified and thereafter
shall be for three years and until their successors shall be
elected and have qualified; and
(c) the term of office of Class III directors shall be until
the 2002 annual meeting of stockholders and until their
successors shall be elected and have
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qualified and thereafter shall be for three years and until their
successors shall be elected and have qualified.
If the number of directors is changed, any increase or decrease shall be
apportioned among the classes so as to maintain or attain, if possible, the
equality of the number of directors in each class. If such equality is not
possible, the increase or decrease shall be apportioned among the classes
in such a way that the difference in the number of directors in any two
classes shall not exceed one.
SECTION 2.04. REMOVAL OF DIRECTOR. Any director or the entire Board
of Directors may be removed only in accordance with the provisions of the
Charter.
SECTION 2.05. VACANCY ON BOARD OF DIRECTORS. Subject to the rights
of holders of Price Group Stock and of the holders of any class or series
of stock separately entitled to elect one or more directors, the
stockholders may elect a successor to fill a vacancy on the Board of
Directors which results from the removal of a director. A director elected
by the stockholders to fill a vacancy which results from the removal of a
director serves for the balance of the term of the removed director.
Subject to the rights of holders of Price Group Stock and of the holders of
any class of stock separately entitled to elect one or more directors, a
majority of the remaining directors, whether or not sufficient to
constitute a quorum, may fill a vacancy on the Board of Directors which
results from any cause except an increase in the number of directors, and a
majority of the entire Board of Directors may fill a vacancy which results
from an increase in the number of directors. A director elected by the
Board of Directors to fill a vacancy serves until the next annual meeting
of stockholders and until his or her successor is elected and qualifies.
SECTION 2.06. REGULAR MEETINGS. After each meeting of stockholders
at which directors shall have been elected, the Board of Directors shall
meet as soon thereafter as practicable for the purpose of organization and
the transaction of other business. In the event that no other time and
place are specified by resolution of the Board of Directors or announced by
the President or the Chairman of the Board at such stockholders meeting,
the Board of Directors shall meet immediately following the close of, and
at the place of, such stockholders meeting. Any other regular meeting of
the Board of Directors shall be held on such date and time and at such
place as may be designated from time to time by the Board of Directors. No
notice of such meeting following a stockholders meeting or any other
regular meeting shall be necessary if held as hereinabove provided.
SECTION 2.07. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board or the
President or by a majority of the Board of Directors by vote at a meeting,
or in writing with or without a meeting. A special meeting of the Board of
Directors shall be held on such date and at any place as may be designated
from time to time by the Board of Directors. In the absence of designation
such meeting shall be held at such place as may be designated in the call.
SECTION 2.08. NOTICE OF MEETING. Except as provided in Section 2.06,
the Secretary shall give notice to each director of each regular and
special meeting of the Board of Directors. The notice shall state the time
and place of the meeting. Notice is given to a director when it is
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delivered personally to him or her, left at his or her residence or usual
place of business, or sent by telegraph, facsimile transmission or
telephone, at least 24 hours before the time of the meeting or, in the
alternative by mail to his or her address as it shall appear on the records
of the Corporation, at least 72 hours before the time of the meeting.
Unless these By-Laws or a resolution of the Board of Directors provides
otherwise, the notice need not state the business to be transacted at or
the purposes of any regular or special meeting of the Board of Directors.
No notice of any meeting of the Board of Directors need be given to any
director who attends except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened, or to any director who, in
writing executed and filed with the records of the meeting either before or
after the holding thereof, waives such notice. Any meeting of the Board of
Directors, regular or special, may adjourn from time to time to reconvene
at the same or some other place, and no notice need be given of any such
adjourned meeting other than by announcement.
SECTION 2.09. QUORUM; ACTION BY DIRECTORS. A majority of the entire
Board of Directors shall constitute a quorum for the transaction of
business. In the absence of a quorum, the directors present by majority
vote and without notice other than by announcement may adjourn the meeting
from time to time until a quorum shall attend. At any such adjourned
meeting at which a quorum shall be present, any business may be transacted
which might have been transacted at the meeting as originally notified.
Unless statute or the Charter or By-Laws requires a greater proportion, the
action of a majority of the directors present at a meeting at which a
quorum is present is action of the Board of Directors. Any action required
or permitted to be taken at a meeting of the Board of Directors may be
taken without a meeting, if an unanimous written consent which sets forth
the action is signed by each member of the Board of Directors and filed
with the minutes of proceedings of the Board of Directors.
SECTION 2.10. MEETING BY CONFERENCE TELEPHONE. Members of the Board
of Directors may participate in a meeting by means of a conference
telephone or similar communications equipment if all persons participating
in the meeting can hear each other at the same time. Participation in a
meeting by these means constitutes presence in person at a meeting.
SECTION 2.11. COMPENSATION. By resolution of the Board of Directors
a fixed sum and expenses, if any, for attendance at each regular or special
meeting of the Board of Directors or of committees thereof, and other
compensation for their services as such or on committees of the Board of
Directors, may be paid to directors. Directors who are full-time employees
of the Corporation need not be paid for attendance at meetings of the Board
of Directors or committees thereof for which fees are paid to other
directors. A director who serves the Corporation in any other capacity
also may receive compensation for such other services, pursuant to a
resolution of the directors.
SECTION 2.12. RESIGNATION. Any director may resign at any time by
sending a written notice of such resignation to the home office of the
Corporation addressed to the Chairman of the Board or the President.
Unless otherwise specified therein such resignation shall take effect upon
receipt thereof by the Chairman of the Board or the President.
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SECTION 2.13. PRESUMPTION OF Assent. A director of the Corporation
who is present at a meeting of the Board of Directors at which action on
any corporate matter is taken shall be presumed to have assented to the
action taken unless his or her dissent or abstention shall be entered in
the minutes of the meeting or unless he or she shall file his or her
written dissent to such action with the person acting as the secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a
director who votes in favor of such action or fails to make his dissent
known at the meeting.
SECTION 2.14. ADVISORY DIRECTORS. The Board of Directors may by
resolution appoint advisory directors to the Board of Directors, who may
also serve as directors emeriti, and shall have such authority and receive
such compensation and reimbursement as the Board of Directors shall
provide. Advisory directors or directors emeriti shall not have the
authority to participate by vote in the transaction of business.
ARTICLE III.
COMMITTEES
SECTION 3.01. COMMITTEES. The Board of Directors may appoint from
among its members an Executive Committee, an Audit Committee, an Executive
Compensation Committee and other committees composed of one or more
directors and delegate to these committees any of the powers of the Board
of Directors, except the power to authorize dividends on stock, elect
directors, issue stock other than as provided in the next sentence,
recommend to the stockholders any action which requires stockholder
approval, amend these By-Laws, or approve any merger or share exchange
which does not require stockholder approval. The entire Audit Committee
shall be directors who are independent of management. The entire Executive
Compensation Committee shall be directors who are Adisinterested persons@
within the meaning of Rule 16b-3 of the Securities Exchange Act of 1934, as
amended. If the Board of Directors has given general authorization for the
issuance of stock providing for or establishing a method or procedure for
determining the maximum number of shares to be issued, a committee of the
Board of Directors, in accordance with that general authorization or any
stock option or other plan or program adopted by the Board of Directors,
may authorize or fix the terms of stock subject to classification or
reclassification and the terms on which any stock may be issued, including
all terms and conditions required or permitted to be established or
authorized by the Board of Directors.
SECTION 3.02. COMMITTEE PROCEDURE. Each committee may fix rules of
procedure for its business. A majority of the members of a committee shall
constitute a quorum for the transaction of business and the act of a
majority of those present at a meeting at which a quorum is present shall
be the act of the committee. The members of
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a committee present at any meeting, whether or not they constitute
a quorum, may appoint a director to act in the place of an absent member.
Any action required or permitted to be taken at a meeting of a committee
may be taken without a meeting, if an unanimous written consent which
sets forth the action is signed by each member of the committee and filed
with the minutes of the committee. The members of a committee may
conduct any meeting thereof by conference telephone in accordance with
the provisions of Section 2.10.
SECTION 3.03. EMERGENCY. In the event of a state of disaster of
sufficient severity to prevent the conduct and management of the affairs
and business of the Corporation by its directors and officers as
contemplated by the Charter and these By-Laws, any two or more available
members of the then incumbent Executive Committee shall constitute a quorum
of that Committee for the full conduct and management of the affairs and
business of the Corporation in accordance with the provisions of Section
3.01. In the event of the unavailability, at such time, of a minimum of
two members of the then incumbent Executive Committee, the available
directors shall elect an Executive Committee consisting of any two members
of the Board of Directors, whether or not they be officers of the
Corporation, which two members shall constitute the Executive Committee for
the full conduct and management of the affairs of the Corporation in
accordance with the foregoing provisions of this Section. This Section
shall be subject to implementation by resolution of the Board of Directors
passed from time to time for that purpose, and any provisions of these By-
Laws (other than this Section) and any resolutions which are contrary to
the provisions of this Section or to the provisions of any such
implementary resolutions shall be suspended until it shall be determined by
any interim Executive Committee acting under this Section that it shall be
to the advantage of the Corporation to resume the conduct and management of
its affairs and business under all the other provisions of these By-Laws.
ARTICLE IV.
OFFICERS
SECTION 4.01. EXECUTIVE AND OTHER OFFICERS. The Corporation shall
have a President, a Secretary, and a Treasurer. It may also have a
Chairman of the Board. The Board of Directors shall designate who shall
serve as chief executive officer, who shall have general supervision of the
business and affairs of the Corporation, and may designate a chief
operating officer, who shall have supervision of the operations of the
Corporation. In the absence of any designation the Chairman of the Board,
if there be one, shall serve as chief executive officer and the President
shall serve as chief operating officer. In the absence of the Chairman of
the Board, or if there be none, the President shall be the chief executive
officer. The same person may hold both offices. The Corporation may also
have one or more Vice-Presidents, assistant officers, and subordinate
officers as may be established by the Board of Directors. A person may
hold more than one office in the Corporation except that no person may
serve concurrently as both President and Vice-President of the Corporation.
The Chairman of the Board shall be a director, and the other officers may
be directors.
SECTION 4.02. CHAIRMAN OF THE BOARD. The Chairman of the Board, if
one be elected, shall preside at all meetings of the Board of Directors and
of the stockholders at which he or she shall be present. Unless otherwise
specified by the Board of Directors, he or she shall be the chief executive
officer of the Corporation. In general, he or she shall perform such
duties as are customarily performed by the chief executive officer
of a corporation and may perform any
<PAGE> 10
duties of the President and shall perform such other duties and have
such other powers as are from time to time assigned to him or her by
the Board of Directors.
SECTION 4.03. PRESIDENT. Unless otherwise provided by resolution of
the Board of Directors, the President, in the absence of the Chairman of
the Board, shall preside at all meetings of the Board of Directors and of
the stockholders at which he or she shall be present. Unless otherwise
specified by the Board of Directors, the President shall be the chief
operating officer of the Corporation and perform the duties customarily
performed by chief operating officers. He or she may execute, in the name
of the Corporation, all authorized deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution
thereof shall have been expressly delegated to some other officer or agent
of the Corporation. In general, he or she shall perform such other duties
customarily performed by a president of a corporation and shall perform
such other duties and have such other powers as are from time to time
assigned to him or her by the Board of Directors or the chief executive
officer of the Corporation.
SECTION 4.04. VICE-PRESIDENTS. The Vice-President or Vice-
Presidents, at the request of the chief executive officer or the President,
or in the President's absence or during his or her inability to act, shall
perform the duties and exercise the functions of the President, and when so
acting shall have the powers of the President. If there be more than one
Vice-President, the Board of Directors may determine which one or more of
the Vice-Presidents shall perform any of such duties or exercise any of
such functions, or if such determination is not made by the Board of
Directors, the chief executive officer, or the President may make such
determination; otherwise any of the Vice-Presidents may perform any of such
duties or exercise any of such functions. Each Vice-President shall
perform such other duties and have such other powers, and have such
additional descriptive designations in their titles (if any), as are from
time to time assigned to them by the Board of Directors, the chief
executive officer, or the President.
SECTION 4.05. SECRETARY. The Secretary shall keep the minutes of the
meetings of the stockholders, of the Board of Directors and of any
committees, in books provided for the purpose; he or she shall see that all
notices are duly given in accordance with the provisions of these By-Laws
or as required by law; he or she shall be custodian of the records of the
Corporation; he or she may witness any document on behalf of the
Corporation, the execution of which is duly authorized, see that the
corporate seal is affixed where such document is required or desired to be
under its seal, and, when so affixed, may attest the same. In general, he
or she shall perform such other duties customarily performed by a secretary
of a corporation, and shall perform such other duties and have such other
powers as are from time to time assigned to him or her by the Board of
Directors, the chief executive officer, or the President.
SECTION 4.06. TREASURER. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of
the Corporation, all moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by
the Board of Directors; he or she shall render to the President and to the
Board of Directors, whenever requested, an account of the financial
condition of the Corporation. In general, he or she shall
<PAGE> 11
perform such other duties customarily performed by a treasurer of a corporation,
and shall perform such other duties and have such other powers as are from time
to time assigned to him or her by the Board of Directors, the chief
executive officer, or the President.
SECTION 4.07. ASSISTANT AND SUBORDINATE OFFICERS. The assistant and
subordinate officers of the Corporation are all officers below the office
of Vice-President, Secretary, or Treasurer. The assistant or subordinate
officers shall have such duties as are from time to time assigned to them
by the Board of Directors, the chief executive officer, or the President.
SECTION 4.08. ELECTION, TENURE AND REMOVAL OF OFFICERS. The Board of
Directors shall elect the officers of the Corporation. The Board of
Directors may from time to time authorize any committee or officer to
appoint assistant and subordinate officers. Election or appointment of an
officer, employee or agent shall not of itself create contract rights. All
officers shall be appointed to hold their offices, respectively, during the
pleasure of the Board of Directors. The Board of Directors (or, as to any
assistant or subordinate officer, any committee or officer authorized by
the Board of Directors) may remove an officer at any time. The removal of
an officer does not prejudice any of his or her contract rights. The Board
of Directors (or, as to any assistant or subordinate officer, any committee
or officer authorized by the Board of Directors) may fill a vacancy which
occurs in any office for the unexpired portion of the term.
SECTION 4.09. COMPENSATION. The Board of Directors shall have power
to fix the salaries and other compensation and remuneration, of whatever
kind, of all officers of the Corporation. No officer shall be prevented
from receiving such salary by reason of the fact that he or she is also a
director of the Corporation. The Board of Directors may authorize any
committee or officer, upon whom the power of appointing assistant and
subordinate officers may have been conferred, to fix the salaries,
compensation and remuneration of such assistant and subordinate officers.
ARTICLE V.
DIVISIONAL TITLES
SECTION 5.01. CONFERRING DIVISIONAL TITLES. The Board of Directors
may from time to time confer upon any employee of a division of the
Corporation the title of President, Vice President, Treasurer or Controller
of such division or any other title or titles deemed appropriate, or may
authorize the Chairman of the Board or the President to do so. Any such
titles so conferred may be discontinued and withdrawn at any time by the
Board of Directors, or by the Chairman of the Board or the President if so
authorized by the Board of Directors. Any employee of a division
designated by such a divisional title shall have the powers and duties with
respect to such division as shall be prescribed by the Board of Directors,
the Chairman of the Board or the President.
SECTION 5.02. EFFECT OF DIVISIONAL TITLES. The conferring of
divisional titles shall not create an office of the Corporation under
Article IV unless specifically designated as such by the
<PAGE> 12
Board of Directors; but any person who is an officer of the Corporation may
also have a divisional title.
ARTICLE VI.
STOCK
SECTION 6.01. CERTIFICATES FOR STOCK. The Board of Directors may
determine to issue certificated or uncertificated shares of capital stock
and other securities of the Corporation. For certificated stock, each
stockholder is entitled to certificates which represent and certify the
shares of stock he or she holds in the Corporation. Each stock certificate
shall include on its face the name of the Corporation, the name of the
stockholder or other person to whom it is issued, and the class of stock
and number of shares it represents. It shall also include on its face or
back (a) a statement of any restrictions on transferability and a statement
of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications,
and terms and conditions of redemption of the stock of each class which the
Corporation is authorized to issue, of the differences in the relative
rights and preferences between the shares of each series of a preferred or
special class in series which the Corporation is authorized to issue, to
the extent they have been set, and of the authority of the Board of
Directors to set the relative rights and preferences of subsequent series
of a preferred or special class of stock or (b) a statement which provides
in substance that the Corporation will furnish a full statement of such
information to any stockholder on request and without charge. Such request
may be made to the Secretary or to its transfer agent. Except as provided
in the Maryland Uniform Commercial Code - Investment Securities, the fact
that a stock certificate does not contain or refer to a restriction on
transferability that is adopted after the date of issuance does not mean
that the restriction is invalid or unenforceable. Upon the issuance of
uncertificated shares of capital stock, the Corporation shall send the
stockholder a written statement of the same information required above on
the certificate and by the Maryland Uniform Commercial Code - Investment
Securities. It shall be in such form, not inconsistent with law or with
the Charter, as shall be approved by the Board of Directors or any officer
or officers designated for such purpose by resolution of the Board of
Directors. Each stock certificate shall be signed by the Chairman of the
Board, the President, or a Vice-President, and countersigned by the
Secretary, an Assistant Secretary, the Treasurer, or an Assistant
Treasurer. Each certificate may be sealed with the actual corporate seal
or a facsimile of it or in any other form and the signatures may be either
manual or facsimile signatures. A certificate is valid and may be issued
whether or not an officer who signed it is still an officer when it is
issued. A certificate may not be issued until the stock represented by it
is fully paid.
SECTION 6.02. TRANSFERS. The Board of Directors shall have power and
authority to make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates of stock;
and may appoint transfer agents and registrars thereof. The duties of
transfer agent and registrar may be combined.
SECTION 6.03. RECORD DATES OR CLOSING OF TRANSFER BOOKS. The Board
of Directors may, and shall have the sole power to, set a record date or
direct that the stock transfer books be
<PAGE> 13
closed for a stated period for the purpose of making any proper determination
with respect to stockholders, including which stockholders are entitled to
request a special meeting of stockholders, notice of a meeting of stockholders,
vote at a meeting of stockholders, receive a dividend, or be allotted other
rights. The record date may not be prior to the close of business on the
day the record date is fixed nor, subject to Section 1.06, more than 90 days
before the date on which the action requiring the determination will be taken;
the transfer books may not be closed for a period longer than 20 days; and, in
the case of a meeting of stockholders, the record date or the closing of
the transfer books shall be at least ten days before the date of the meeting.
Any shares of the Corporation's own stock acquired by the Corporation
between the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders and the time of the meeting may be
voted at the meeting by the holder of record as of the record date and
shall be counted in determining the total number of outstanding shares
entitled to be voted at the meeting.
SECTION 6.04. STOCK LEDGER. The Corporation shall maintain a stock
ledger which contains the name and address of each stockholder and the
number of shares of stock of each class which the stockholder holds. The
stock ledger may be in written form or in any other form which can be
converted within a reasonable time into written form for visual inspection.
The original or a duplicate of the stock ledger shall be kept at the
offices of a transfer agent for the particular class of stock, or, if none,
at the principal office in the State of Maryland or the principal executive
offices of the Corporation.
SECTION 6.05. CERTIFICATION OF BENEFICIAL OWNERS. The Board of
Directors may adopt by resolution a procedure by which a stockholder of the
Corporation may certify in writing to the Corporation that any shares of
stock registered in the name of the stockholder are held for the account of
a specified person other than the stockholder. The resolution shall set
forth the class of stockholders who may certify; the purpose for which the
certification may be made; the form of certification and the information to
be contained in it; if the certification is with respect to a record date
or closing of the stock transfer books, the time after the record date or
closing of the stock transfer books within which the certification must be
received by the Corporation; and any other provisions with respect to the
procedure which the Board of Directors considers necessary or desirable.
On receipt of a certification which complies with the procedure adopted by
the Board of Directors in accordance with this Section, the person
specified in the certification is, for the purpose set forth in the
certification, the holder of record of the specified stock in place of the
stockholder who makes the certification.
SECTION 6.06. LOST STOCK CERTIFICATES. The Board of Directors may
determine the conditions for issuing a new stock certificate in place of
one which is alleged to have been lost, stolen, or destroyed, or the Board
of Directors may delegate such power to any officer or officers of the
Corporation. In their discretion, the Board of Directors or such officer
or officers may require the owner of the certificate to give bond, with
sufficient surety, to indemnify the Corporation against any loss or claim
arising as a result of the issuance of a new certificate. In their
discretion, the Board of Directors or such officer or officers may refuse
to issue such new certificate save upon the order of some court having
jurisdiction in the premises.
<PAGE> 14
SECTION 6.07. EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE. The
provisions of Sections 3-701 to 3-709 of the Corporations and Associations
Article of the Annotated Code of Maryland shall not apply to any share of
the capital stock of the Corporation now or hereafter beneficially held
(during the period of such beneficial ownership) by John Price, his spouse
and children, any lineal descendants of any of the foregoing, any estates
of any of the foregoing, any trusts now or hereafter established for the
benefit of any of the foregoing, any other entity now or hereafter
controlled by John Price, any of the associates or affiliates of the
foregoing and any other person acting in concert or as a group with any of
the foregoing. Such shares of capital stock are exempted from such
Sections to the fullest extent permitted by Maryland law.
ARTICLE VII.
FINANCE
SECTION 7.01. CHECKS, DRAFTS, ETC. All checks, drafts and orders for
the payment of money, notes and other evidences of indebtedness, issued in
the name of the Corporation, shall, unless otherwise provided by resolution
of the Board of Directors, be signed by the Chairman of the Board, the
President, a Vice-President or an Assistant Vice-President, and
countersigned by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary.
SECTION 7.02. ANNUAL STATEMENT OF AFFAIRS. The President or chief
accounting officer shall prepare annually a full and correct statement of
the affairs of the Corporation, to include a balance sheet and a financial
statement of operations for the preceding fiscal year. The statement of
affairs shall be submitted at the annual meeting of the stockholders and,
within 20 days after the meeting, placed on file at the Corporation=s
principal office.
SECTION 7.03. FISCAL YEAR. The fiscal year of the Corporation shall
be the 12 calendar months period ending December 31 in each year, unless
otherwise provided by the Board of Directors.
SECTION 7.04. DIVIDENDS. If declared by the Board of Directors at
any meeting thereof, the Corporation may pay dividends on its shares in
cash, property, or in shares of the capital stock of the Corporation,
unless such dividend is contrary to law or to a restriction contained in
the Charter.
SECTION 7.05. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name
unless authorized by, or under delegation from, the Board of Directors.
Such authorization may be general or confined to specific instances.
SECTION 7.06. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in any of its duly authorized depositories as the Board of
Directors may select.
<PAGE> 15
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.01. PROCEDURE. Any indemnification, or payment of expenses
in advance of the final disposition of any proceeding, shall be made
promptly, and in any event within 60 days, upon the written request of the
director or officer entitled to seek indemnification (the "Indemnified
Party"). The right to indemnification and advances hereunder shall be
enforceable by the Indemnified Party in any court of competent
jurisdiction, if (i) the Corporation denies such request, in whole or in
part, or (ii) no disposition thereof is made within 60 days. The
Indemnified Party's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be reimbursed by the Corporation.
It shall be a defense to any action for advance for expenses that (a) a
determination has been made that the facts then known to those making the
determination would preclude indemnification or (b) the Corporation has not
received both (i) an undertaking as required by law to repay such advances
in the event it shall ultimately be determined that the standard of conduct
has not been met and (ii) a written affirmation by the Indemnified Party of
such Indemnified Party's good faith belief that the standard of conduct
necessary for indemnification by the Corporation has been met.
SECTION 8.02. EXCLUSIVITY, ETC. The indemnification and advance of
expenses provided by the Charter and these By-Laws shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advance of expenses may be entitled under any law (common or statutory), or
any agreement, vote of stockholders or disinterested directors or other
provision that is consistent with law, both as to action in his or her
official capacity and as to action in another capacity while holding office
or while employed by or acting as agent for the Corporation, shall continue
in respect of all events occurring while a person was a director or officer
after such person has ceased to be a director or officer, and shall inure
to the benefit of the estate, heirs, executors and administrators of such
person. The Corporation shall not be liable for any payment under this By-
Law in connection with a claim made by a director or officer to the extent
such director or officer has otherwise actually received payment under
insurance policy, agreement, vote or otherwise, of the amounts otherwise
indemnifiable hereunder. All rights to indemnification and advance of
expenses under the Charter of the Corporation and hereunder shall be deemed
to be a contract between the Corporation and each director or officer of
the Corporation who serves or served in such capacity at any time while
this By-Law is in effect. Nothing herein shall prevent the amendment of
this By-Law, provided that no such amendment shall diminish the rights of
any person hereunder with respect to events occurring or claims made before
its adoption or as to claims made after its adoption in respect of events
occurring before its adoption. Any repeal or modification of this By-Law
shall not in any way diminish any rights to indemnification or advance of
expenses of such director or officer or the obligations of the Corporation
arising hereunder with respect to events occurring, or claims made, while
this By-Law or any provision hereof is in force.
<PAGE> 16
SECTION 8.03. SEVERABILITY; DEFINITIONS. The invalidity or
unenforceability of any provision of this Article VIII shall not affect the
validity or enforceability of any other provision hereof. The phrase "this
By-Law" in this Article VIII means this Article VIII in its entirety.
ARTICLE IX.
SUNDRY PROVISIONS
SECTION 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 and of any
executive or other committee when exercising any of the powers of the Board
of Directors. The books and records of the Corporation may be in written
form or in any other form which can 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. The
original or a certified copy of these By-Laws shall be kept at the
principal office of the Corporation.
SECTION 9.02. CORPORATE SEAL. The Board of Directors shall provide a
suitable seal, bearing the name of the Corporation, which shall be in the
charge of the Secretary. The Board of Directors may authorize one or more
duplicate seals and provide for the custody thereof. If the Corporation is
required to place its corporate seal to a document, it is sufficient to
meet the requirement of any law, rule, or regulation relating to a
corporate seal to place the word "(seal)" adjacent to the signature of the
person authorized to sign the document on behalf of the Corporation.
SECTION 9.03. BONDS. The Board of Directors may require any officer,
agent or employee of the Corporation to give a bond to the Corporation,
conditioned upon the faithful discharge of his or her duties, with one or
more sureties and in such amount as may be satisfactory to the Board of
Directors.
SECTION 9.04. VOTING STOCK IN OTHER CORPORATIONS. Stock of other
corporations or associations, registered in the name of the Corporation,
may be voted by the President, a Vice-President, or a proxy appointed by
either of them. The Board of Directors, however, may by resolution appoint
some other person to vote such shares, in which case such person shall be
entitled to vote such shares upon the production of a certified copy of
such resolution.
SECTION 9.05. MAIL. Any notice or other document which is required
by these By-Laws to be mailed shall be deposited in the United States
mails, postage prepaid.
SECTION 9.06. CONTRACTS AND AGREEMENTS. To the extent permitted by
applicable law, and except as otherwise prescribed by the Charter or these
By-Laws, the Board of Directors may authorize any officer, employee or
agent of the Corporation to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the Corporation. Such
authority may be general or confined to specific instances. A person who
holds more than one office in the
<PAGE> 17
Corporation may not act in more than one capacity to execute,
acknowledge, or verify an instrument required by law to be executed,
acknowledged, or verified by more than one officer.
SECTION 9.07. AMENDMENTS. In accordance with the Charter, these By-
Laws may be repealed, altered, amended or rescinded and new by-laws may be
adopted (a) by the stockholders of the Corporation (considered for this
purpose as one class) by the affirmative vote of not less than 80% of all
the votes entitled to be cast by the outstanding shares of capital stock of
the Corporation generally in the election of directors which are cast on
the matter at any meeting of the stockholders called for that purpose
(provided that notice of such proposal is included in the notice of such
meeting) or (b) by the Board of Directors by the affirmative vote of not
less than two-thirds of the Board of Directors at a meeting held in
accordance with the provisions of these By-Laws.
<PAGE> 18
