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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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): NOVEMBER 7, 1996
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JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 1-12844 58-1468053
(State or Other (Commission File (I.R.S. Employer
Jurisdiction of Number) Identification
Incorporation) Number)
3340 PEACHTREE ROAD, N.E.
SUITE 1530
ATLANTA, GEORGIA 30326
(Address of Principal Executive Offices) (Zip Code)
(404) 262-3252
(Registrant's Telephone Number, including Area Code)
NOT APPLICABLE
(Former Name)
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Exhibit Index located on Page 4
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ITEM 5. OTHER EVENTS.
Because of numerous amendments and in order to make the
Charter of JDN Realty Corporation (the "Company") more easily referenced, on
June 11, 1996 the Board of Directors of the Company resolved to adopt Articles
of Restatement of the Company's Charter. These Articles of Restatement were
filed with the State Department of Assessments and Taxation of Maryland on
November 7, 1996. The Company's Bylaws are being filed herewith to make them
accessible in accordance with the rules of the Securities and Exchange
Commission (the "Commission") pertaining to the electronic submission of
documents filed with the Commission.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
99.1 Articles of Restatement of JDN Realty
Corporation
99.2 Bylaws of JDN Realty Corporation
</TABLE>
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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.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
---------------------------------
William J. Kerley
Chief Financial Officer
Date: November 7, 1996
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
99.1 Articles of Restatement of JDN Realty
Corporation
99.2 Bylaws of JDN Realty Corporation
</TABLE>
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JDN REALTY CORPORATION
ARTICLES OF RESTATEMENT
THIS IS TO CERTIFY THAT:
FIRST: JDN Realty Corporation, a Maryland corporation (the
"Corporation"), desires to restate its Charter as currently in effect.
SECOND: The following provisions are all the provisions of
the Charter currently in effect:
ARTICLE I
NAME
The name of this corporation shall be JDN Realty Corporation (the
"Corporation").
ARTICLE II
INCORPORATOR
The undersigned, J. Donald Nichols, whose address is 3340
Peachtree Road, Suite 1530, Atlanta, Georgia 30326, being 18 years of age or
older, hereby forms a corporation under the general laws of the State of
Maryland.
ARTICLE III
PURPOSES
The purpose for which the Corporation is formed is to engage
in the ownership of real property and any and all other lawful act or activity
for which corporations may be organized under the general laws of the State of
Maryland as now or hereinafter in force.
ARTICLE IV
PRINCIPAL OFFICE
The address of the principal office of the Corporation in the
State of Maryland is CSC-Lawyers Incorporating Service Company, 11 East Chase
Street, Baltimore, Maryland 21202.
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ARTICLE V
RESIDENT AGENT
The name of the resident agent of the Corporation in the State
of Maryland is CSC-Lawyers Incorporating Service Company, and the address of
such resident agent is 11 East Chase Street, Baltimore, Maryland 21202.
ARTICLE VI
CAPITAL STOCK
The Corporation shall have authority, acting by its Board of
Directors, to issue not more than one hundred seventy million (170,000,000)
shares, with an aggregate par value of $1,700,000, divided into classes as
follows:
(a) One hundred fifty million (150,000,000) shares shall
be shares of common stock, each with a par value of one cent ($.01) ("Common
Stock"). All shares of Common Stock shall be one and the same class and when
issued shall have equal rights of participation in dividends and assets of the
Corporation and shall be non-assessable. Each outstanding share of Common
Stock shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders.
(b) Twenty million (20,000,000) shares shall be shares of
preferred stock, each with a par value of one cent ($.01) ("Preferred Stock").
(i) The Board of Directors is hereby authorized to issue
the Preferred Stock from time to time in one or more series, which Preferred
Stock shall be preferred to the Common Stock as to dividends and distribution
of assets of the Corporation on dissolution, as hereinafter provided, and shall
have such distinctive designations as may be stated in the resolution providing
for the issue of such stock adopted by the Board of Directors. In such
resolution providing for the issuance of shares of each particular series, the
Board of Directors is hereby expressly authorized and empowered to fix the
number of shares constituting such series and to fix the relative rights and
preferences of the shares of the series so established to the full extent
allowable by law except insofar as such rights and preferences are fixed
herein. Such authorization in the Board of Directors shall expressly include
the authority to fix and determine the relative rights and preferences of such
shares in the following respects:
(A) The rate of dividend;
(B) Whether shares can be redeemed or called and, if so,
the redemption or call price and terms and conditions of redemption or call;
(C) The amount payable upon shares in the event of
voluntary and involuntary liquidation;
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(D) The purchase, retirement or sinking fund provisions,
if any, for the call, redemption or purchase of shares;
(E) The terms and conditions, if any, on which shares may
be converted into Common Stock or any other securities;
(F) Whether or not shares have voting rights, and the
extent of such voting rights, if any, including the number of votes per share;
and
(G) Whether or not shares shall be cumulative,
non-cumulative or partially cumulative as to dividends and the dates from which
any cumulative dividends are to accumulate.
All shares of the Preferred Stock shall be of equal rank and
shall be identical, except in respect to the particulars that may be fixed by
the Board of Directors as hereinabove provided in this paragraph and which may
vary among the series. Different series of the Preferred Stock shall not be
construed to constitute different classes of stock for the purpose of voting by
classes, except when such voting by classes is expressly required by law.
(ii) The holders of Preferred Stock are entitled to
receive, when and as declared by the Board of Directors, but only from funds
legally available for the payment of dividends, cash dividends at the annual
rate for each particular series as theretofore fixed and determined by the
Board of Directors as hereinbefore authorized, and no more; such dividends to
be payable before any dividend on Common Stock shall be paid or set apart for
payment. Arrearages in the payment of dividends shall not bear interest.
(iii) In the event of any dissolution, liquidation or
winding up of the affairs of the Corporation, after payment or provision for
payment of the debts and other liabilities of the Corporation, the holders of
each series of Preferred Stock shall be entitled to receive, out of the net
assets of the Corporation, an amount in cash for each share equal to the amount
fixed and determined by the Board of Directors in any resolution providing for
the issue of any particular series of Preferred Stock, plus an amount equal to
any dividends payable to such holder which are then unpaid, either under the
provisions of the resolution of the Board of Directors providing for the issue
of such series of Preferred Stock or by declaration of the Board of Directors,
on each such share up to the date fixed for distribution, and no more, before
any distribution shall be made to the holders of Common Stock. Neither the
merger or consolidation of the Corporation, nor the sale, lease or conveyance
of all or a part of its assets, shall be deemed to be a dissolution,
liquidation or winding up of the affairs of the Corporation.
ARTICLE VII
DIRECTORS
The current number of Directors is six and their names are:
J. Donald Nichols; Elizabeth L. Nichols; Haywood D. Cochrane, Jr.; Craig
Macnab; William B. Greene; and Robert P. Corker, Jr.
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ARTICLE VIII
LIMITATION ON PERSONAL LIABILITY OF DIRECTORS
AND OFFICERS; INDEMNIFICATION
SECTION 8.1. A director or officer of the Corporation shall
not be personally liable to the Corporation or its shareholders for money
damages unless: (a) it is proved that the director or officer actually received
an improper benefit or profit in money, property or services, for the amount of
such benefit or profit in money, property or services actually received; or (b)
a judgment or other final adjudication adverse to the director or officer is
entered in a proceeding based on a finding in the proceeding that the person's
action, or failure to act, was the result of active and deliberate dishonesty
and was material to the cause of action adjudicated in the proceeding.
If the law of the State of Maryland is hereafter amended to
authorize corporate action further limiting or eliminating the personal
liability of directors or officers or expanding such liability, then the
liability of directors or officers to the Corporation or its shareholders shall
be limited or eliminated to the fullest extent permitted by law of the State of
Maryland as so amended from time to time.
SECTION 8.2. The Corporation shall indemnify, and upon
request shall advance expenses to, in the manner and to the fullest extent
permitted by law, any officer or director (or the estate of any such person)
who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact
that such person is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan (an "indemnitee"). The
Corporation may, to the fullest extent permitted by law, purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan against any liability which may be asserted against such
person. To the fullest extent permitted by law, the indemnification and
advances provided for herein shall include expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement. The
indemnification provided herein shall not be deemed to limit the right of the
Corporation to indemnify any other person for any such expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement to the
fullest extent permitted by law, both as to action in his official capacity and
as to action in another capacity while holding such office.
Notwithstanding the foregoing, the Corporation shall not
indemnify any such indemnitee: (a) in any proceeding by or in the right of the
Corporation against such indemnitee wherein the indemnitee shall have been
adjudged to be liable to the Corporation; or (b) in any proceeding charging
improper personal benefit to the indemnitee, whether or not involving action in
the indemnitee's official capacity, in which the indemnitee was adjudged to be
liable on the
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basis that personal benefit was improperly received; or (c) it is established
that (i) the act or omission of the indemnitee was material to the matter
giving rise to the proceeding and the act or omission was committed in bad
faith or was the result of active and deliberate dishonesty, or (ii) the
indemnitee actually received an improper personal benefit in money, property or
services, or (iii) in the case of any criminal proceeding, the indemnitee had
reasonable cause to believe the act or omission was unlawful.
The rights to indemnification and advancement of expenses set
forth in this Section 8.2 are intended to be greater than those which are
otherwise provided for in the General Corporation Law of the State of Maryland,
are contractual between the Corporation and the person being indemnified, his
heirs, executors and administrators, and, with respect to this Section 8.2, are
mandatory, notwithstanding a person's failure to meet the standard of conduct
required for permissive indemnification under the General Corporation Law of
the State of Maryland, as amended from time to time. The rights to
indemnification and advancement of expenses set forth in this Section 8.2 above
are nonexclusive of other similar rights which may be granted by law, these
Articles, the Bylaws, a resolution of the Board of Directors or shareholders or
an agreement with the Corporation, which means of indemnification and
advancement of expenses are hereby specifically authorized.
SECTION 8.3. Any repeal or modification of the provisions of
this Article VIII, either directly or by the adoption of an inconsistent
provision of these Articles, shall be prospective only and shall not adversely
affect any right or protection set forth herein existing in favor of a
particular individual at the time of such repeal or modification. In addition,
if an amendment to the General Corporation Law of the State of Maryland limits
or restricts in any way the indemnification rights permitted by law as of the
date hereof, such amendment shall apply only to the extent mandated by law and
only to activities of persons subject to indemnification under this Article
VIII which occur subsequent to the effective date of such amendment.
ARTICLE IX
REMOVAL OF DIRECTORS
Any director of the Corporation may be removed only for cause
(a) by the vote of holders of seventy-five percent (75%) of the shares of the
Corporation entitled to vote; or (b) by the unanimous vote of all of the other
members of the Board of Directors. Cause shall mean the director's willful
dishonesty towards, fraud upon, or deliberate injury or attempted injury to the
Corporation.
ARTICLE X
EXPRESS POWERS OF BOARD OF DIRECTORS
SECTION 10.1. In furtherance of and not in limitation of the
powers conferred by statute, the Corporation is expressly authorized, acting
upon the authority of the Board of Directors and without the approval of the
shareholders, to:
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(a) Issue shares of any class or series as a share
dividend in respect of shares of the same class or series or any other class or
series;
(b) Fix or change the number of directors, including an
increase or decrease in the number of directors;
(c) Determine, establish or modify, in whole or in part,
the preferences, limitations and relative rights of (i) any class of shares
before the issuance of any shares of that class, or (ii) one or more series
within a class before the issuance of any shares of that series, and in
connection therewith, to amend these Articles, without shareholder action, to
set forth such preferences, limitations and relative rights; and
(d) Determine, in accordance with law, the method by
which vacancies occurring on the Board of Directors are to be filled;
(e) Designate capital gain allocation to holders of any
series or all series of Preferred Stock, to holders of Common Stock, or both;
provided, however, that any allocation among holders of any series or class of
stock shall be pro rata among such holders in accordance with their ownership
interests.
SECTION 10.2. The enumeration and definition of a particular
power of the Board of Directors included in the foregoing section shall in no
way be limited or restricted by reference or inference from the terms of any
other clause of this or any other Article of these Articles of Incorporation,
or construed as or deemed by inference or otherwise in any manner to exclude or
limit any powers conferred upon the Board of Directors under the general laws
of the State of Maryland now or hereinafter in force.
ARTICLE XI
AMENDMENTS
SECTION 11.1. Notwithstanding any of the provisions of
these Articles or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, these Articles or the Bylaws
of the Corporation) the affirmative vote of the holders of at least eighty
percent (80%) of the Common Stock and, if any, the Preferred Stock entitled to
vote, voting together as a single class, shall be required to repeal or amend
any provision inconsistent with Article VIII, Article XI or Article XII.
SECTION 11.2. The Board of Directors reserves the right
from time to time to amend, alter or repeal any provision contained in these
Articles in the manner now or hereinafter prescribed by statute, and all rights
conferred on shareholders herein are subject to this reservation.
SECTION 11.3. The affirmative vote of the holders of at
least eighty percent (80%) of the Common Stock and, if any, the Preferred Stock
entitled to vote, voting together as a single class, shall be required to
repeal or amend any provision of the Bylaws of the Corporation;
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provided, however, that the Board of Directors may repeal or amend any
provision of the Bylaws of the Corporation unless (i) the General Corporation
Law of the State of Maryland reserves this power exclusively to the
shareholders; or (ii) the shareholders, in amending or repealing a particular
Bylaw, provide expressly that the Board of Directors may not amend or repeal
that particular Bylaw.
ARTICLE XII
PROVISIONS FOR DEFINING, LIMITING AND REGULATING
CERTAIN POWERS OF THE CORPORATION AND THE
BOARD OF DIRECTORS AND SHAREHOLDERS
SECTION 12.1. In this Article XII, the following terms
shall have the following meanings:
(1) "Acquire" shall mean the acquisition of
Beneficial Ownership (or in the case of an Excluded Holder,
Beneficial Ownership or Constructive Ownership) of shares of
capital stock by any means including, without limitation, (i)
the acquisition of direct ownership of Shares by any Person,
including through the exercise of any option, warrant, pledge,
other security interest or similar right to acquire shares,
and (ii) the acquisition of indirect ownership of shares
(taking into account the constructive ownership rules of
Section 544 of the Code, as modified by Section 856(h)(1)(B)
of the Code) by a Person who is an individual within the
meaning of Section 642(a)(2) of the Code, including, without
limitation, through the acquisition by any Person of any
option, warrant, pledge, security interest, or similar right
to acquire shares.
(2) "Beneficial Ownership" shall mean, with
respect to any Person, ownership of shares of capital stock
equal to the sum of (i) the Shares directly owned by such
Person and (ii) the Shares indirectly owned by such Person (if
such Person is an "individual" as defined in section 542(a)(2)
of the Code) taking into account constructive ownership
determined under Section 544 of the Code, as modified by
Section 856(h)(1)(B) of the Code (except where expressly
provided otherwise). The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
(3) "Common Stock Ownership Limit" shall mean
8.0% either in number of shares or value of the outstanding
Common Stock of the Corporation.
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(4) "Constructive Ownership" shall mean ownership
of shares of capital stock either directly by a Person or
constructively by a Person through the application of Section
318(a) of the Code, as modified by Section 856(d)(5) of the
Code. The terms "Constructive Owners," "Constructively Owns,"
and "Constructively Owned" shall have the correlative
meanings.
(5) "Code" shall mean the Internal Revenue Code
of 1986, as amended, and the regulations promulgated
thereunder.
(6) "Excluded Holder" shall mean J. Donald
Nichols, Elizabeth L. Nichols and members of their immediate
family, and any other Person who is or would be either a
Beneficial Owner or Constructive Owner of shares of capital
stock as a result of the Beneficial Ownership or Constructive
Ownership of shares of capital stock by either J. Donald
Nichols or Elizabeth L. Nichols or whose ownership of shares
of capital stock would cause either J. Donald Nichols or
Elizabeth L. Nichols to be a Beneficial Owner or Constructive
Owner of such shares of capital stock (collectively, the
"Excluded Holders").
(7) "Excluded Holder Ownership Limit" shall mean
17.9% of the number of shares of Common Stock outstanding
immediately after the Initial Public Offering and 17.9% of the
number or value of any outstanding shares of Preferred Stock.
(8) "Initial Public Offering" means the first sale
of stock by the Corporation in an underwritten public offering
pursuant to the first effective registration statement for
such stock filed under the Securities Act of 1933, as amended.
(9) "Market Price" shall mean the purchase price
for any shares of capital stock and shall be equal to the fair
market value of such stock reflected in (i) the closing sales
price for the stock, if then listed on only one national
securities exchange, or (ii) the average closing sales price
of the stock if then listed on more than one national
securities exchange or (iii) if the stock is not then listed
on a national securities exchange, the latest bid quotation
for the stock if then traded over-the-counter on the last
business day immediately preceding the day on which notices of
such Transfer are sent, or if no such closing sales prices or
quotations are available, then the purchase price shall be
equal to the net asset value of such stock as determined by
the Board of Directors or a committee thereof, in accordance
with the provisions of applicable law.
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(10) "Permitted Transferee" shall mean a Person in
whose hands the Excess Shares held in Trust attributable to an
intended transferee would not constitute Excess Shares.
(11) "Person" shall mean an individual,
corporation, partnership, estate, trust (including a trust
qualified under Section 401(a) or 501(c)(17) of the Code), a
portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of
the Code, association, private foundation within the meaning
of Section 509(a) of the Code, joint stock company or other
entity and also includes a group as that term is used for
purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended; but does not include an underwriter which
participates in a public offering of capital stock for a
period of 90 days following the purchase by such underwriter
of the capital stock.
(12) "Preferred Stock Ownership Limit" shall mean
8.0% either in number of shares or value of the outstanding
shares of Preferred Stock of the Corporation.
(13) "REIT" shall mean a "real estate investment
trust" under Section 856 of the Code.
(14) "REIT Provisions of the Code" means Sections
856 through 860 of the Code and any successor or other
provisions of the Code relating to real estate investment
trusts (including provisions as to the attribution of
ownership of beneficial interests therein) and the regulations
promulgated thereunder.
(15) "Redemption Price" shall mean the lower of
(i) the price paid by the purported transferee to Acquire
shares of capital stock that are being redeemed or (ii) the
fair market value of shares of the capital stock to be
redeemed on the relevant date. The "fair market value is
determined by (1) the closing sales price for the stock, if
then listed on only one national securities exchange, or (2)
the average closing sales price of the stock if then listed on
more than one national securities exchange or (3) if the stock
is not then listed on a national securities exchange, the
latest bid quotation for the stock if then traded
over-the-counter on the lat business day immediately preceding
the day on which notices of such Transfer are sent, or if no
such closing sales prices or quotations are available, then
the "fair market value" shall be equal to the net asset value
of such stock as determined by the Board of Directors
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or a committee thereof, in accordance with the provisions of
applicable law.
(16) "Restriction Termination Date" shall mean the
first day after the date of the closing of the Initial Public
Offering on which the Corporation determines that it is no
longer in the best interests of the Corporation to attempt to,
or continue to, qualify as a REIT or that compliance with the
restrictions and limitations on ownership and Transfers of
shares of capital stock set forth herein is no longer required
in order for the Corporation to qualify as a REIT.
(17) "Transfer" shall mean any sale, transfer,
gift, assignment, devise or other disposition that results in
a change in the record or Beneficial Ownership of capital
stock or the right to vote or receive dividends on capital
stock (including without limitation (i) the granting of any
option or entering into any agreement for the sale, transfer
or other disposition of capital stock or the right to vote or
receive dividends on capital stock or (ii) the sale, transfer,
assignment or other disposition of any securities (or rights
convertible into or exchangeable for capital stock, or the
right to vote or receive dividends on capital stock)), whether
voluntary or involuntary, whether of record or beneficially
and whether by operation of law or otherwise.
SECTION 12.2. During the period commencing on the date of
the Initial Public Offering and prior to the Restriction Termination Date: (i)
no Person (other than an Excluded Holder) shall Acquire any shares of capital
stock if, as the result of such acquisition, such Person shall Beneficially Own
shares of capital stock in excess of the Common Stock Ownership Limit or the
Preferred Stock Ownership Limit; (ii) no Excluded Holder shall Acquire any
shares of capital stock if, as a result of such acquisition, any Person who is
an Excluded Holder shall Beneficially Own or Constructively Own shares of
capital stock in excess of the Excluded Holder Ownership Limit; (iii) no Person
shall Acquire any shares of capital stock if, as a result of such acquisition,
the capital stock would be beneficially owned by less than 100 Persons
(determined without reference to any rules of attribution); (iv) no Person
shall Acquire any shares of capital stock if, as a result of such acquisition,
the Corporation would be "closely held" within the meaning of Section 856(h) of
the Code; and (v) no Person shall Acquire any shares of capital stock if, as a
result of such acquisition the Corporation would own (directly or
Constructively) an interest in a tenant that is described in Section
856(d)(2)(B) of the Code if the income derived by the Corporation from such
tenant would cause the Corporation to fail to satisfy any of the gross income
requirements of Section 856(c) of the Code.
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SECTION 12.3.
(a) Any Transfer that, (1) if effective would result in a
violation of the restrictions in Section 12.2 shall be void ab initio as to the
Transfer of that number of shares of capital stock that would cause the
violation of the applicable restriction in Section 12.2, and the intended
transferee shall acquire no rights in such excess number of shares of capital
stock.
(b) If the Board of Directors or a committee thereof
shall at any time determine in good faith that (i) a purported Transfer or
other event has taken place in violation of Section 12.2 of this Article XII or
(ii) a Person intends to Acquire or has attempted to Acquire Beneficial
Ownership of any shares of capital stock that will result in a violation of
Section 12.2 of this Article XII (whether or not such violation is intended),
the Board of Directors or a committee thereof shall take such action as it
deems advisable to refuse to give effect to or to prevent such Transfer,
including, but not limited to, refusing to give effect to such Transfer on the
books of the Corporation or instituting proceedings to enjoin such Transfer;
provided, however, that any Transfer or attempted Transfer in violation of
Section 12.2 of this Article XII shall be void ab initio.
(c) Without limitation to Section 12.3 (a) and (b) of
this Article XII, if at any time after the date of the closing of the Initial
Public Offering and prior to the Restriction Termination Date, there is a
purported transfer or other event such that one or more of the restrictions on
Beneficial Ownership and Transfer of the Common Stock or Preferred Stock as
described in Section 12.2 would have been violated, then the shares of Common
Stock or Preferred Stock being Transferred (or, in the case of an event other
than a Transfer, the shares of Common Stock or Preferred Stock Beneficially
owned), which would cause one or more of such restrictions to be violated shall
constitute "Excess Shares." "Excess Shares" shall have the following
characteristics:
(1) Excess Shares shall be deemed to have been
transferred to the Corporation as trustee (the "Trustee") of a trust (the
"Trust") for the exclusive benefit of such Person or Persons to whom the Excess
Shares shall later be transferred to pursuant to (2) below;
(2) The Board of Directors shall, within ninety
(90) days after receiving notice of a purported Transfer that would violate
this Article XII, shall (in its sole and absolute discretion) either (i) direct
the purported transferee of such Excess Shares to sell all Excess Shares held
in Trust to a Permitted Transferee (a) at a price that does not exceed the
price paid by the intended transferees for the Excess Shares in connection with
the Transfer (in the event Excess Shares are sold, whether or not the
transaction in entered into through the facilities of the New York Stock
Exchange (the "NYSE"), at a price that exceeds the price paid by the intended
transferee, such excess will be payable to the Corporation upon the demand of
the Corporation) or (b) if the Stock becomes Excess Shares in a transaction
otherwise than for value (e.g., by gift, devise or descent), at a price that
does not exceed the Market Price of the Corporation's stock on the date of the
purported Transfer; or (ii) cause the Corporation to redeem such Excess Shares
for the Redemption Price on such date within such ninety (90) day period as the
Board of Directors may determine. If the Board of Directors directs the
purported transferee to sell the
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Excess Shares to a Permitted Transferee, upon such sale, the excess Shares
attributable to the intended transferee shall be removed from the Trust and
transferred to the Permitted Transferee and shall no longer be Excess Shares,
and the intended transferee's interest in the Trust shall be extinguished.
(3) Excess Shares shall not have any voting
rights, and shall not be considered for the purpose of any shareholder vote or
determining a quorum at the annual meeting or any special meeting of
shareholders, but shall continue to be reflected as issued and outstanding
capital stock of the Corporation.
(4) No dividends or other distributions shall be
paid with respect to Excess Shares; any dividends paid in error to an intended
transferee prior to the discovery by the Corporation that the intended transfer
is void under this Article XII shall be repaid to the Corporation upon demand.
SECTION 12.4. Any Person who purports to Acquire or
attempts or intends to Acquire capital stock in violation of Section 12.2
hereof shall immediately give written notice to the Corporation of such event
and shall provide to the Corporation such other information as the Corporation
may request in order to determine the effect, if any, of such purported
Transfer or attempted or intended Transfer on the Corporation's status as a
REIT.
SECTION 12.5.
(a) Every shareholder of record of more than 5% (or such
lower percentage as required by the Code or regulations promulgated thereunder)
of the outstanding shares of the Common Stock or Preferred Stock shall, within
30 days after December 31 of each year, give written notice to the Corporation
stating the name and address of such record shareholder, the number of shares
Beneficially Owned by it, and a description of how such shares are held;
provided, however, that a shareholder of record who holds outstanding shares as
nominee for another person, which other person is required to include in gross
income, for U.S. federal income tax purposes, the dividends received on such
shares (an "Actual Owner"), shall give written notice to the Corporation
stating the name and address of such Actual Owner and the number of shares of
such Actual Owner with respect to which the shareholder of record is nominee;
(b) Every Actual Owner of more than 5% (or such lower
percentage as required by the Code or regulations promulgated thereunder) of
the outstanding shares of the Common Stock or Preferred Stock who is not a
shareholder of record of the Corporation shall, within 30 days after December
31, of each year, give written notice to the Corporation stating the name and
address of such Actual Owner, the number of shares Beneficially Owned, and a
description of how such shares are held; and
(c) Each person who is a Beneficial Owner of shares of
the Common stock or Preferred Stock and each Person (including the shareholder
of record) who is holding shares for a Beneficial Owner shall provide to the
Corporation such information as the Trust may request,
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in good faith, in order to determine the Corporation's compliance with the REIT
Provisions of the Code.
SECTION 12.6. Nothing contained in this Article XII, other
than the provisions set forth in Section 12.10, shall limit the authority of
the Board of Directors to take such other action as it deems necessary or
advisable to protect the Corporation and the interests of its Shareholders in
preserving the Corporation's status as a REIT.
SECTION 12.7. In the case of an ambiguity in the
application of any of the provisions of this Article XII, including any
definition contained in Section 12.1, the Board of Directors shall have the
power to determine the application of the provisions of this Article XII with
respect to any situation based on the facts known to it.
SECTION 12.8.
(a) Subject to Section 12.8(c), the Board of Directors,
in its sole discretion, may exempt a Person from the Common Stock Ownership
Limit (A) if such Person is not an individual for purposes of Section 542(a)(2)
of the Code and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain that no
individual's Beneficial Ownership of such Common Stock will violate the Common
Stock Ownership Limit, (B) if such Person does not and represents that it will
not own, directly or Constructively (by virtue of the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code), more than a
9.9% interest (as set forth in Section 856(d)(2)(B) of the Code) in a tenant of
the Corporation (or any entity owned or controlled by the Corporation) and the
Corporation obtains such representations and undertakings from such Person as
are reasonably necessary to ascertain this fact, and (C) if such Person agrees
that any violation of such representations or undertaking (or other action
which is contrary to the restrictions contained in Section 12.2 of this Article
XII) or attempted violation will result in such Common Stock being held in
trust for the benefit of the Corporation as provided in Section 12.3(c).
(b) Subject to Section 12.8(c), the Board of Directors,
in its sole discretion, may exempt a Person from the Preferred Stock Ownership
Limit (A) if such Person is not an individual for purposes of Section 542(a)(2)
of the Code and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain that no
individual's Beneficial Ownership of such shares of Preferred Stock will
violate the Preferred Stock Ownership Limit, (B) if such Person does not and
represents that it will not own, directly or Constructively (by virtue of the
application of Section 318 of the Code, as modified by Section 856(d)(5) of the
Code) in a tenant of the Corporation (or any entity owned or controlled by the
Corporation) and the Corporation obtains such representations and undertakings
from such Person as are reasonably necessary to ascertain this fact, and (C) if
such Person agrees that any violation of such representations or undertaking
(or other action which is contrary to the restrictions contained in Section
12.2 of this Article XII) or attempted violation will result in such shares of
Preferred Stock being held in trust for the benefit of the Corporation as
provided in Section 12.3(c).
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(c) Prior to granting any exception pursuant to Section
12.8(a) or Section 12.8(b) of this Article XII, the Board of Directors may
require a ruling from the Internal Revenue Service, or an opinion of counsel,
in either case in form and substance satisfactory to the Board of Directors in
its sole discretion, as it may deem necessary or advisable in order to
determine or ensure the Corporation's status as a REIT.
SECTION 12.9.
(a) Each certificate for Preferred Stock shall bear the
following legend:
IF NECESSARY TO EFFECT COMPLIANCE BY THE CORPORATION WITH
CERTAIN PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PROHIBITED UPON
THE TERMS AND CONDITIONS SET FORTH IN THE ARTICLES OF INCORPORATION AND BYLAWS
OF THE CORPORATION. THE CORPORATION WILL FURNISH A COPY OF SUCH TERMS AND
CONDITIONS TO THE REGISTERED HOLDER OF THIS CERTIFICATE UPON REQUEST AND
WITHOUT CHARGE, TO ENABLE THE CORPORATION TO ENSURE THAT IT COMPLIES WITH THE
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE HOLDER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE AND ANY PROPOSED TRANSFERENCE OF SUCH
HOLDER SHALL, UPON DEMAND, DISCLOSE TO THE CORPORATION IN WRITING SUCH
INFORMATION AS THE CORPORATION MAY DEEM NECESSARY FOR SUCH PURPOSES.
THE CORPORATION HAS THE AUTHORITY TO ISSUE STOCK OF MORE THAN
ONE CLASS. THE CORPORATION WILL, ON REQUEST AND WITHOUT CHARGE, FURNISH A FULL
STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS,
VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE.
(b) Each certificate for Common Stock shall bear the
following legend:
IF NECESSARY TO EFFECT COMPLIANCE BY THE CORPORATION WITH
CERTAIN PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PROHIBITED UPON
THE TERMS AND CONDITIONS SET FORTH IN THE ARTICLES OF INCORPORATION AND BYLAWS
OF THE CORPORATION. THE CORPORATION WILL FURNISH A COPY OF SUCH TERMS AND
CONDITIONS TO THE REGISTERED HOLDER OF THIS CERTIFICATE UPON REQUEST AND
WITHOUT CHARGE, TO ENABLE THE CORPORATION TO ENSURE THAT IT COMPLIES WITH THE
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE HOLDER OF THE
SHARES REPRESENTED BY THIS CERTIFICATE AND ANY PROPOSED TRANSFERENCE OF SUCH
HOLDER SHALL, UPON DEMAND, DISCLOSE TO THE CORPORATION IN
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WRITING SUCH INFORMATION AS THE CORPORATION MAY DEEM NECESSARY FOR SUCH
PURPOSES.
THE CORPORATION HAS THE AUTHORITY TO ISSUE STOCK OF MORE THAN
ONE CLASS. THE CORPORATION WILL, ON REQUEST AND WITHOUT CHARGE, FURNISH A FULL
STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS,
VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE.
SECTION 12.10. Nothing in Article XII shall preclude the
settlement of any transaction entered into through the facilities of the NYSE.
ARTICLE XIII
PREEMPTIVE RIGHTS
The holders of stock of the Corporation shall have no
preemptive or preferential right to subscribe for or purchase any stock or
securities of the Corporation.
ARTICLE XIV
PERPETUAL EXISTENCE
The period of existence of the Corporation shall be perpetual.
THIRD: The foregoing restatement of the Charter has been
approved by a majority of the entire board of directors.
FOURTH: The Charter is not amended by these Articles of
Restatement.
FIFTH: The current address of the principal office of the
Corporation in the State of Maryland is set forth in Article IV of the
foregoing restatement of the Charter.
SIXTH: The name and address of the Corporation's current
resident agent in the State of Maryland is set forth in Article V of the
foregoing restatement of the Charter.
SEVENTH: The Bylaws of the Corporation provide that the
number of directors of the Corporation shall not be less than three nor more
than nine, as determined from time to time by the Board of Directors of the
Corporation. The names of those currently in office are set forth in Article
VII of the foregoing restatement of the Charter.
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EIGHTH: The undersigned President acknowledges these Articles
of Restatement to be the corporate act of the corporation and as to all matters
or facts required to be verified under oath, the undersigned President
acknowledges that to the best of her knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties of perjury.
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IN WITNESS WHEREOF, the Corporation has caused these Articles
to be signed in its name and on its behalf by its President and attested to by
its Secretary on the 5th day of November, 1996.
ATTEST: JDN REALTY CORPORATION
/s/ William J. Kerley By:/s/ Elizabeth L. Nichols
- ------------------------------- -----------------------------
William J. Kerley, Secretary Elizabeth L. Nichols, President
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BYLAWS
OF
JDN REALTY CORPORATION
ARTICLE I
OFFICES
SECTION 1.1. PRINCIPAL OFFICE. The principal office of the
Corporation in the State of Maryland shall be CSC-Lawyers Incorporating Service
Company, 100 Light Street, Sixth Floor, Baltimore, Maryland 21202. The
original or a certified copy of these Bylaws, including any and all amendments,
shall be kept at the Corporation's principal office.
SECTION 1.2. OTHER OFFICES. The Corporation may also have
offices at such other places within or without the State of Maryland as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF THE SHAREHOLDERS
SECTION 2.1. PLACE OF MEETINGS. Meetings of the shareholders
shall be held at such place within or without the State of Maryland as shall be
specified in the notice of the meeting or in a waiver thereof.
SECTION 2.2. ANNUAL MEETING. An annual meeting of the
shareholders, commencing in the year 1994, shall be held on a date and time
designated by the Board of Directors and as set forth in the notice of the
meeting, for the purpose of electing directors and transacting such other
business as may properly be brought before the meeting.
SECTION 2.3. SPECIAL MEETINGS. Special meetings of the
shareholders may be called by the President, by a majority of the Board of
Directors, or by such person or persons as may be authorized by the Articles of
Incorporation or by these Bylaws. The Secretary of the Corporation shall call
a special meeting of the shareholders on the written request of shareholders
entitled to cast at least twenty-five percent (25%) 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: (a) inform the shareholders who make the request for a special
meeting of the reasonably estimated cost of preparing and mailing a notice of
that meeting; and (b) on payment of these costs to the Corporation, notify each
shareholder entitled to notice of the meeting. Unless requested by
shareholders entitled to cast a majority of all the votes entitled to be cast
at the meeting, a special meeting need not be called to consider any matter
which is substantially the same as a matter voted on at any special meeting of
the shareholders held during the preceding twelve (12) months.
<PAGE> 2
SECTION 2.4. NOTICE. Not less than ten (10) nor more than
ninety (90) days before each meeting of the shareholders, the Secretary of the
Corporation shall give written notice of the meeting to: (a) each shareholder
of record entitled to vote at the meeting; and (b) each other shareholder
entitled by applicable law to notice of the meeting. The notice shall state
the date, time and place of the meeting and the purpose of the meeting, if the
meeting is a special meeting or notice of the purpose is required by the
General Corporation Law of the State of Maryland. Notice is given to a
shareholder when it is: (a) personally delivered to the shareholder; (b) left
at the shareholder's residence or usual place of business; or (c) mailed to the
shareholder at the shareholder's address as it appears on the records of the
Corporation. If mailed, notice is given when deposited in the United States
mail, postage prepaid and directed to the shareholder at the shareholder's
address as it appears on the records of the Corporation.
SECTION 2.5. QUORUM. The holders of shares entitled to vote
as a separate voting group may take action on a matter at a meeting only if a
quorum exists with respect to that matter. The presence in person or by proxy
of shareholders entitled to cast a majority of all the votes entitled to be
cast on a matter by a voting group, shall constitute a quorum at meetings of
shareholders except as otherwise provided by statute or by the Articles of
Incorporation. Once a share is represented for any purpose at a meeting, the
holder is deemed present for quorum purposes for the remainder of the meeting
and for any adjournment of that meeting, unless a new record date is or must be
set for that adjourned meeting.
SECTION 2.6. ADJOURNMENT. If a quorum shall not be present
or represented at any meeting of the shareholders, the shareholders present in
person, or represented by proxy, shall have the power to adjourn the meeting
from time to time, without further notice, to a date not more than one hundred
twenty (120) days after the original record date. At such adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the original meeting.
SECTION 2.7. MAJORITY RULE. A majority of all the votes cast
at a meeting of shareholders at which a quorum is present is sufficient to
approve any matter which properly comes before the meeting, unless the vote of
a greater number is required by the General Corporation Law of the State of
Maryland, the Articles of Incorporation or these Bylaws.
SECTION 2.8. ELECTION OF DIRECTORS. Directors shall be
elected by a majority of all the votes cast at a meeting of shareholders at
which a quorum is present.
SECTION 2.9. VOTING. Each outstanding share of stock,
regardless of class, is entitled to one vote on each matter submitted to a vote
at a meeting of shareholders, unless otherwise provided pursuant to the
Articles of Incorporation or by the General Corporation Law of the State of
Maryland.
SECTION 2.10. PROXIES. Each shareholder entitled to vote at
a meeting of the shareholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for him by proxy by signing an appointment form, either personally or by
his attorney-in-fact, but no such proxy shall be voted or acted upon after
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eleven (11) months from its date, unless the proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it conspicuously states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally.
SECTION 2.11. LIST OF SHAREHOLDERS. The officer who has
charge of the stock ledger books of the Corporation shall prepare and make, at
least ten (10) days before each meeting of the shareholders, a complete list of
the shareholders entitled to vote at such meeting, arranged in alphabetical
order, showing the address of each shareholder and the number of shares
registered in the name of each shareholder. Such list shall be open to the
examination of any shareholder, for any purpose germane to the meeting, during
ordinary business hours for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. Such list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder who is present. The stock
ledger shall be the only evidence as to who are the shareholders entitled to
examine the stock ledger, to be included in the list required by this Section
2.11 or to vote in person or by proxy at any meeting of shareholders.
SECTION 2.12. INSPECTORS. The Board of Directors may, in
advance of any meeting of the shareholders, appoint one or more inspectors to
act at such meeting or any adjournment thereof. If the inspectors shall not be
so appointed or if any of them shall fail to appear or act, the chairman of the
meeting may, and on the request of any shareholder entitled to vote thereat
shall, appoint inspectors. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath to execute faithfully the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares represented
at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count and tabulate
all votes, ballots or consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all shareholders. On
request of the chairman of the meeting or any shareholder entitled to vote
thereat, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any
fact found by them. No director or candidate for the office of director shall
act as inspector of an election of directors. Inspectors need not be
shareholders.
SECTION 2.13. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if the following are filed with the records of meetings of the
shareholders: (a) a unanimous written consent which sets forth the action and
is signed by each shareholder entitled to vote on the matter; and (b) a written
waiver of any right to dissent signed by each shareholder entitled to notice of
the meeting but not entitled to vote at it. The affirmative vote of the number
of shares which would be necessary to authorize or take action at a meeting of
shareholders, pursuant to Section 2.7, is the act of the
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shareholders without a meeting. Action taken by written consent is effective
when the last shareholder signs the consent, unless the consent specifies a
different effective date.
SECTION 2.14. ORGANIZATION. At every meeting of the
stockholders, the Chairman of the Board, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following persons
present in the order stated: the President, the Vice Presidents in their order
of rank, a chairman designated by the Board of Directors, or a chairman chosen
by the stockholders entitled to cast a majority of the votes which all
stockholders present in person or by proxy are entitled to cast, shall act as
chairman of the meeting, and the Secretary, or, in his absence, an Assistant
Secretary, if any, or any person appointed by the chairman of the meeting,
shall act as secretary of the meeting.
ARTICLE III
DIRECTORS
SECTION 3.1. NUMBER. Except as set forth below, the number
of directors of the Corporation shall be not less than three nor more than
nine, as determined from time to time by the Board of Directors of the
Corporation, who shall be elected at the annual meeting of shareholders, except
in the case of initial directors named in the Articles of Incorporation and
except as provided below. If at any time the Corporation has less than three
shareholders, the number of directors of the Corporation may be less than three
but not less than the number of shareholders. Any action by the Board of
Directors or shareholders to reduce the number of directors shall not affect
the tenure of office of any director.
The Board of Directors of this Corporation shall be classified
into three classes, equal or approximately equal in number. If the number of
directors is not divisible evenly by three, the Board of Directors shall
determine the number of directors to be in each class, with each class to be
approximately equal in number. Initial directors shall be placed into classes
by a vote of a majority of the shares of capital stock entitled to vote, except
as otherwise provided in the Articles of Incorporation. Each director in Class
1 shall serve for an initial term ending at the annual meeting of shareholders
in 1995 and until his or her successor is elected and qualified; each director
in Class 2 shall serve for an initial term ending at the annual meeting of the
shareholders in 1996 and until his or her successor is elected and qualified;
and each director in Class 3 shall serve for an initial term ending at the
annual meeting of shareholders in 1997 and until his or her successor is
elected and qualified. After the respective initial terms of the classes
indicated, each such class of directors shall be elected for successive terms
ending at the annual meeting of shareholders the third year after election and
until his or her successor is elected and qualified. In the event of an
increase or decrease in the number of directors, and the number of directors is
not divisible evenly by three, the remaining directors by majority vote shall
determine the number of directors to be in each class of directors, with each
class to be approximately equal in number, to be effective after expiration of
the remaining terms of any class which have a reduction in number due to a
decrease in the number of directors.
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SECTION 3.2. INDEPENDENT DIRECTORS. At least a majority of
the entire Board of Directors shall be Independent Directors, as hereinafter
defined. An Independent Director shall mean a director who is not, directly or
indirectly, an Affiliate of the Corporation, as hereinafter defined. An
Affiliate of the Corporation shall mean a person who: (a) is an officer or
employee of the Corporation; (b) beneficially owns five percent (5%) or more of
any class of equity securities of the Corporation, or of any entity that
controls, is controlled by or is under common control with the Corporation; or
(c) has a member of his or her immediate family who has one of the foregoing
relationships with the Corporation.
SECTION 3.3. ELECTION AND TENURE. Until the first annual
meeting of shareholders and until successors are elected and qualify, the Board
of Directors consists of the individuals named as initial directors in the
Articles of Incorporation. Unless the Articles of Incorporation or these
Bylaws provide otherwise, a majority of all the votes cast at a meeting of
shareholders at which a quorum is present is sufficient to elect a director,
and each director elected shall hold office until the end of his term as
provided herein, and until his successor is elected and qualified or until his
earlier resignation or removal. 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. Shareholders shall not have any cumulative
voting rights.
SECTION 3.4. QUALIFICATIONS. Each director of the
Corporation shall have the qualifications required by the Articles of
Incorporation or these Bylaws. Directors need not be residents of the State of
Maryland or shareholders in the Corporation.
SECTION 3.5. REMOVAL. Any director may be removed only for
cause (a) by vote of the holders of seventy-five percent (75%) of the shares of
capital stock of the Corporation entitled to vote; or (b) by the unanimous vote
of all of the other members of the Board of Directors. Cause shall mean the
director's willful dishonesty towards, fraud upon, or deliberate injury or
attempted injury to the Corporation.
SECTION 3.6. VACANCIES. Any vacancy occurring in the Board
of Directors which results from the removal of a director shall be filled by
the shareholders of the Corporation in accordance with Section 2.8. A director
elected by the shareholders to fill a vacancy which results from the removal of
a director shall serve for the balance of the term of the removed director.
Any other vacancy occurring in the Board of Directors which results from any
cause except an increase in the authorized number of directors may be filled by
the affirmative vote of a majority of the remaining directors, whether or not
sufficient to constitute a quorum. A majority of the entire Board of Directors
may fill a vacancy which results from an increase in the number of directors
and, subject to Section 3.1, determine the class of such additional director or
directors. A director elected by the Board of Directors to fill a vacancy
serves until the next annual meeting of the shareholders and until such
director's successor is elected and qualifies.
SECTION 3.7. LACK OF DIRECTORS. If at any time, by reason of
death or resignation or other cause, the Corporation should have no directors
in office, then any officer or any shareholder or an executor, administrator,
trustee or guardian of a shareholder, or other fiduciary entrusted with like
responsibility for the person or estate of a shareholder may call a special
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meeting of shareholders in accordance with the provisions of the Articles of
Incorporation or these Bylaws, and an election of directors may be held in the
manner provided by the Articles of Incorporation, these Bylaws or applicable
law.
SECTION 3.8. RESIGNATION. A director may resign at any time
by delivering written notice to the Corporation, the Board of Directors, the
Chairman of the Board or the President. A resignation is effective when notice
is delivered, unless the notice specifies a later effective date.
SECTION 3.9. POWERS. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by applicable law, the Articles of Incorporation or
by these Bylaws conferred on or reserved to the shareholders. In the event the
public offering of the Corporation's shares are registered in accordance with
applicable securities laws, the Board of Directors shall cause the
Corporation's investment policies and activities to be in compliance with the
investment activities set forth in the prospectus prepared in connection with
such registration.
SECTION 3.10. QUORUM. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 3.11. ANNUAL MEETING. The annual meeting of the
Board of Directors for the purpose of electing officers and transacting such
other business as may be brought before the meeting shall be held each year
immediately following the annual meeting of shareholders. No notice of such
meeting shall be necessary in order to legally constitute the meeting,
providing a quorum be present.
SECTION 3.12. REGULAR MEETINGS. Regular meetings of the
Board of Directors may be held without notice at such places, within or without
the State of Maryland, on such dates and at such times as may from time to time
be determined by the Board.
SECTION 3.13. SPECIAL MEETINGS. Special meetings of the
Board of Directors may be called by the Chairman of the Board or the President
and shall be called by the Secretary on the written request of two directors.
Written notice of special meetings of the Board of Directors shall be given to
each director at least three days before the date of the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting. Such meetings shall be held at such places, within or
without the State of Maryland, on such dates and at such times as may be stated
in the notice.
SECTION 3.14. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at a meeting of the Board of Directors or of a committee
of the Board of Directors may
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be taken without a meeting, if a unanimous written consent which sets forth the
action is: (a) signed by each member of the Board of Directors or committee;
and (b) filed with the minutes of proceedings of the Board of Directors or
committee. The affirmative vote of the number of directors that would be
necessary to authorize or take action at a meeting, pursuant to Section 3.16,
is the act of the Board of Directors without a meeting. Action taken by
written consent is effective when the last director signs the consent unless
the consent specifies a different effective date.
SECTION 3.15. MEETINGS BY TELEPHONE. Members of the Board of
Directors or any committee may participate in a meeting by means of a
conference telephone or similar communications equipment provided all persons
participating in the meeting can hear each other at the same time. A director
participating in such a meeting is deemed to be present in person at the
meeting.
SECTION 3.16. MAJORITY RULE. The action of a majority of the
directors present at a meeting at which a quorum is present is the action of
the Board of Directors unless the Articles of Incorporation or these Bylaws
shall require a greater proportion.
SECTION 3.17. INTERESTED DIRECTOR TRANSACTIONS. Any
transaction (including, without limitation, a property acquisition) between the
Corporation and any of its officers or directors, or their affiliates, shall
require approval by a majority of the Board of Directors (including a majority
of Independent Directors) not otherwise interested in such transaction as being
fair and reasonable to the Corporation on terms and conditions not less
favorable to the Corporation than those available from unaffiliated third
parties. No contract or transaction between the Corporation and any of its
directors, or between the Corporation and any other corporation, firm or entity
in which any of its directors is a director, or has a material financial
interest, shall be void or voidable solely for this reason, or solely because
the director is present at the meeting of the Board of Directors or committee
which authorizes, approves or ratifies the contract or transaction, or solely
because his or their votes are counted for such purpose, if such interested
director complies with statutory disclosure requirements or the contract or
transaction is fair and reasonable to the Corporation. Common or interested
directors or the stock owned by them or by an interested corporation, firm or
other entity may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee or at a meeting of
shareholders, as the case may be, which authorizes, approves or ratifies the
contract or transaction.
SECTION 3.18. COMPENSATION. The Board of Directors shall
have the authority to fix the compensation of directors. The Board of
Directors may delegate this authority to its Compensation Committee as set
forth in Section 4.5. Such compensation may include stock options under a
plan approved by the Board of Directors and the shareholders of the
Corporation. Directors shall be entitled to reimbursement for any reasonable
expenses incurred in attending meetings and otherwise carrying out their
duties.
SECTION 3.19. ORGANIZATION. At every meeting of the
Board of Directors, the Chairman of the Board, or in the case of a vacancy in
the office or absence of the Chairman
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of the Board, one of the following officers present in the order stated: the
President, the Vice Presidents in their order of rank, or a chairman chosen by
a majority of the directors present, shall act as chairman of the meeting, and
the Secretary, or, in the absence of the Secretary, an Assistant Secretary, if
any, or any other person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
ARTICLE IV
COMMITTEES
SECTION 4.1. APPOINTMENTS AND POWERS. The Corporation shall
have an Executive Committee, Audit Committee and a Compensation Committee. In
addition, the Board of Directors may, by resolution or resolutions passed by a
majority of the whole Board of Directors, designate one or more other
committees composed of two or more directors. The Board of Directors may
designate one or more directors as alternative members of a committee who may
replace any absent or disqualified member at any meeting of the committee.
Such alternate members shall not be counted for purposes of determining a
quorum unless acting for an absent or disqualified member, in which case they
shall be counted in the place of the absent or disqualified member. The
committee, to the extent provided in said resolution or resolutions or in these
Bylaws, shall have and may exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation and may have power to
authorize the seal of the Corporation to be affixed to all papers which may
require it, except that a committee may not: (i) declare dividends or
distributions on shares; (ii) amend the Bylaws; (iii) approve any merger or
share exchange which does not require shareholder approval; or (iv) authorize
or approve the issuance or sale or contract for sale of shares except that such
committee may fix the terms and conditions of shares in accordance with a
general formula or method specified by the Board of Directors. Such committee
or committees shall have such name or names as may be stated in these Bylaws or
as may be determined from time to time by resolution adopted by the Board of
Directors. Sections 3.11 through 3.16 applicable to the Board of Directors
shall also apply to all committees.
SECTION 4.2. MINUTES. Committees shall keep regular minutes
of their proceedings and report the same to the Board of Directors when
required.
SECTION 4.3. EXECUTIVE COMMITTEE. The Executive Committee
shall have the special duties described below:
(a) The Executive Committee shall act in the absence of
the Board of Directors and shall be delegated all of the powers of the Board of
Directors except as limited by the General Corporation Law of the State of
Maryland.
(b) The Executive Committee shall review the
Corporation's investment policies at least annually to determine that the
policies are being followed by the Corporation and are in the best interest of
its shareholders. The findings of the Executive Committee shall be set forth
in the minutes of meetings of the Board of Directors.
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SECTION 4.4. AUDIT COMMITTEE. The Audit Committee shall have
the special duties described below:
(a) The Audit Committee shall select and engage on behalf
of the Corporation, subject to the consent of the shareholders, and fix the
compensation of, a firm of independent certified public accountants whose duty
it shall be to audit the books and accounts of the Corporation and its
subsidiaries for the fiscal year in which they are appointed, and who shall
report to such Audit Committee.
(b) The Audit Committee shall confer with the independent
certified public accountants and shall determine, and from time to time shall
report to the Board of Directors upon, the plans and results of the auditing of
the books and accounts of the Corporation.
(c) The Audit Committee shall review the services
provided by, the independence of, and the fees charged by the independent
certified public accountant, and from time to time shall report upon the same
to the Board of Directors.
(d) The Audit Committee shall review the adequacy of the
Corporation's internal accounting controls, and from time to time shall report
upon the same to the Board of Directors.
(e) The Audit Committee shall have such other powers as
may be delegated by the Board of Directors from time to time.
None of the members of the Audit Committee shall be officers or employees of
the Corporation.
SECTION 4.5. COMPENSATION COMMITTEE. The Compensation
Committee shall establish a general compensation policy for the Corporation and
shall approve increases in directors' fees and salaries paid to officers and
senior employees earning in excess of an annual base salary of seventy-five
thousand dollars ($75,000.00). The Compensation Committee shall have all the
powers of administration under all of the Corporation's employee benefit plans,
including any stock option plans, bonus plans, retirement plans, stock purchase
plans and medical, dental and insurance plans. In connection therewith, the
Compensation Committee shall determine, subject to the provision of the
Corporation's plans, the directors, officers and employees of the Corporation
eligible to participate in any of the plans, the extent of such participation
and terms and conditions under which benefits may be vested, received or
exercised.
ARTICLE V
NOTICES
SECTION 5.1. NOTICE. Notices to directors and shareholders
shall be in writing, shall specify the date, time and place of the meeting and
shall be delivered personally, left at his or her residence or usual place of
business, or mailed to the directors or shareholders at their addresses
appearing on the records of the Corporation. Notice by mail shall be deemed to
be
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given at the time when deposited in the United States mail, postage prepaid,
and directed to the directors or shareholders at their addresses appearing on
the records of the Corporation. Notice to directors may also be given by
telegram, facsimile or overnight courier, and shall be deemed to be given upon
receipt at their addresses appearing on the records of the Corporation.
SECTION 5.2. WAIVER OF NOTICE. Whenever any notice of the
time, place or purpose of a meeting is required to be given to any shareholder
or director under the General Corporation Law of the State of Maryland or the
Articles of Incorporation or these Bylaws, a written waiver, signed by the
person entitled to notice and delivered to the Corporation and filed with the
Corporation's minutes or records, whether before or after the time stated
therein, shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
shareholders, Board of Directors or members of a committee of the Board of
Directors need be specified in any written waiver of notice unless required by
the Articles of Incorporation or these Bylaws.
SECTION 5.3. ATTENDANCE CONSTITUTES WAIVER. Attendance of a
person at a meeting in person or by proxy shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
ARTICLE VI
OFFICERS
SECTION 6.1. OFFICERS. The officers of the Corporation shall
consist of a President, Secretary and Treasurer, and may include a Chairman of
the Board, Vice Chairman of the Board and one or more Vice Presidents (any one
or more of which may be designated as a senior or executive vice president),
Chief Financial Officer and one or more assistant vice presidents, assistant
treasurers, assistant controller and assistant secretaries, each of whom shall
be elected by the Board of Directors. Any number of offices may be held by
the same person except the offices of President and Vice President shall not be
held by the same person concurrently.
SECTION 6.2. ELECTION. At the first meeting of the Board of
Directors following the annual meeting of shareholders, or as soon thereafter
as is conveniently possible, the Board of Directors shall elect a president,
secretary and a treasurer and such other additional officers, assistant
officers and agents as may be deemed necessary may be elected and appointed by
the Board of Directors. The Board of Directors may elect officers at such
additional times as it deems advisable. The election or appointment of an
officer shall not by itself create contract rights.
SECTION 6.3. REMOVAL. If the Board of Directors in its
judgment finds that the best interests of the Corporation will be served, it
may remove any officer or agent of the Corporation. The removal of an officer
or agent does not prejudice any of his or her contract rights, if any.
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SECTION 6.4. COMPENSATION. The salaries of all officers and
agents of the Corporation shall be fixed by the Compensation Committee or by
the Board of Directors, subject to the provisions of Section 4.5.
SECTION 6.5. TERM OF OFFICE; RESIGNATION. An officer of the
Corporation shall serve for the term provided within any applicable contract
for employment, or absent such contract shall serve for one year and until his
or her successor is elected and qualified or until his or her earlier
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. A resignation is effective when the notice is delivered,
unless the notice specifies a later effective date. If a resignation is made
effective at a later date and the Corporation accepts such later date, the
Board of Directors may fill the pending vacancy before the effective date if it
provides that the successor does not take office until the effective date. An
officer's resignation does not affect the Corporation's contract rights, if
any, with the officer. Any vacancy occurring in any office of the Corporation
by death, resignation, removal or otherwise shall be filled by the Board of
Directors or by such officer or agent of the Corporation to whom the Board of
Directors may expressly delegate such authority.
SECTION 6.6. CHAIRMAN OF THE BOARD. The Chairman of the
Board shall be chosen from among the members of the Board of Directors, shall
be the Chief Executive Officer of the Corporation, shall perform such duties as
may be delegated by the Board of Directors and shall preside at all meetings of
the shareholders and the Board of Directors. The Chairman of the Board shall
have general powers and duties of supervision and management usually vested in
the office of chairman of the board and chief executive officer of a
corporation, including the authority to make contracts on behalf of Corporation
in the ordinary course of the Corporation's business. The Chairman of the
Board shall have general supervision, direction and control of the business of
the Corporation, and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The Chairman of the Board shall execute
bonds, mortgages and other contracts of the Corporation, except where required
or permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation. The Chairman of
the Board shall have such powers and duties as usually pertain to such office,
except as the same may be modified by the Board of Directors.
SECTION 6.8. PRESIDENT. The President shall have general
powers and duties of supervision and management usually vested in the office of
president of a corporation, including the authority to make contracts on behalf
of the Corporation in the ordinary course of the Corporation's business. The
President shall have general supervision, direction and control of the business
of the Corporation, and shall see that all orders and resolutions of the Board
of Directors are carried into effect. In the absence of the Chairman of the
Board, the President shall preside at all meetings of the shareholders and the
Board of Directors. The President shall execute bonds, mortgages and other
contracts, except where required or permitted by law to be otherwise signed and
executed, and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Corporation. The President shall have the power to appoint, remove and suspend
subordinate officers, agents and factors upon such terms and conditions as he
deems reasonable and appropriate. The
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President shall have such powers and duties as usually pertain to such office,
except as the same may be modified by the Board of Directors.
SECTION 6.9. VICE PRESIDENTS. The Vice Presidents, in the
order of their seniority, unless otherwise determined by the Board of
Directors, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President. They shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe or as the President may from time to time delegate.
SECTION 6.10. SECRETARY. The Secretary shall attend meetings
of the Board of Directors and shareholders, and record all the proceedings of
such meetings in a book to be kept for that purpose. The Secretary shall give,
or cause to be given, notice of all meetings of the shareholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or President, under whose supervision
the Secretary shall be.
SECTION 6.11. ASSISTANT SECRETARIES. The Assistant
Secretaries, in the order of their seniority, unless otherwise determined by
the Board of Directors, shall, in the absence or disability of the Secretary,
perform the duties and exercise the power of the Secretary. They shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe or as the President may from time to time delegate.
SECTION 6.12. TREASURER. The Treasurer shall have 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 depositories 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
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. The Treasurer shall perform such other duties and have such other
authority and powers as the Board of Directors may from time to time prescribe
or as the President may from time to time delegate.
SECTION 6.13. ASSISTANT TREASURERS. The Assistant
Treasurers, in the order of their seniority, unless otherwise determined by the
Board of Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer. They shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe or the President may from time to time
delegate.
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ARTICLE VII
CERTIFICATE FOR SHARES
SECTION 7.1. CERTIFICATES FOR SHARES. The shares of the
Corporation shall be represented by certificates which shall be in a form
approved by the Board of Directors and contain such information as may be
required by the General Corporation Law of the State of Maryland or any
securities exchanges on which any shares of the Corporation may be listed.
SECTION 7.2. FACSIMILE SIGNATURES. Any or all the signatures
on the certificate may be a facsimile. In case any officer who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
SECTION 7.3. LOST CERTIFICATES. The Board of Directors may
determine the conditions for issuing a new stock certificate in place of any
certificate issued by it, alleged to have been lost, stolen or destroyed. The
Board of Directors may require the owner of the lost, stolen or destroyed
certificate to give to the Corporation a bond with sufficient surety to
indemnify the Corporation against any loss or claim arising as a result of the
issuance of a new certificate. The issuance of a new certificate under this
Section 7.3 does not constitute an overissue of the shares it represents.
SECTION 7.4. TRANSFER OF SHARES. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
SECTION 7.5. RECORD DATE FOR NOTICE AND VOTING. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, the Board of Directors may
set a record date or direct that the stock transfer books be closed for a
stated period for the purpose of making any proper determination with respect
to shareholders. The record date shall be not more than ninety (90) days nor
less than ten (10) 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 twenty (20) days. If no record date is fixed by the Board of
Directors, the record date for determining shareholders entitled to notice of
or to vote at a meeting of shareholders shall be the later of: (a) the close
of business on the day on which notice of the meeting is mailed; or (b) the
thirtieth (30th) day before the meeting. A determination of shareholders of
record entitled to notice of or to vote at a meeting of shareholder shall apply
to any adjournment of the meeting not more than one hundred twenty (120) days
after the original record date; providing, however, that the Board of Directors
may fix a new record date of the adjourned meeting.
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SECTION 7.6. RECORD DATE FOR DIVIDENDS. For the purpose of
determining shareholders entitled to receive payment of any dividend or an
allotment of any rights, the record date is such date as is determined by the
Board of Directors.
SECTION 7.7. SHAREHOLDERS OF RECORD. The Corporation shall
be entitled to recognize the exclusive rights of a person registered on its
books as the owner of shares to receive dividends, and to vote as such owner,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares 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.
SECTION 7.8. DENIAL OF PREEMPTIVE RIGHTS. No shareholder
shall have any preemptive right to subscribe to an additional issue of stock or
to any security convertible into such stock unless, and except to the extent
that, such right is expressly granted pursuant to the Articles of
Incorporation.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. DIVIDENDS. Subject to the provisions of the
Articles of Incorporation and the General Corporation Law of the State of
Maryland, the Board of Directors of the Corporation may, at any regular or
special meeting, declare dividends upon the capital stock of the Corporation,
as and when the Board of Directors may deem expedient.
SECTION 8.2. CHECKS; DRAFTS. All checks or demands for money
and notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to time
designate.
SECTION 8.3. FISCAL YEAR. The fiscal year of the Corporation
shall be the calendar year, unless otherwise fixed by the Board of Directors.
SECTION 8.4. ANNUAL STATEMENT OF AFFAIRS. The President, or
any other officer of the Corporation designated by the Board of Directors,
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 shareholders and, within twenty (20) days after such
meeting, placed on file at the principal office of the Corporation.
SECTION 8.5. STATEMENTS FROM SHAREHOLDERS. In order to
maintain its status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), the Corporation shall demand
annual written statements from those shareholders of record to the extent
required by Treasury Regulation Section 1.857-8(d) disclosing the actual owners
of the shares of the Corporation. Such written statements from shareholders of
record shall be demanded by the Corporation within thirty (30) days after the
close of the Corporation's taxable
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year. A list of the persons failing or refusing to comply in whole or in part
with the Corporation's demand for statements must be maintained as part of the
Corporation's records. The Corporation shall also maintain, within the
Internal Revenue District in which it is required to file its federal income
tax return, permanent records showing the information it has received as to
actual ownership of those shares and a list of those persons failing or
refusing to comply with that demand. Shareholders of the Corporation shall
comply with the Corporation's demand for statements pursuant to Section 857 of
the Code.
ARTICLE IX
AMENDMENTS
Notwithstanding any of the provisions of these Bylaws (and
notwithstanding the fact that a lesser percentage may be specified by law, or
these Bylaws) the affirmative vote of the holders of at least eighty percent
(80%) of the Common Stock and, if any, Preferred Stock entitled to vote, voting
together as a single class, shall be required to repeal or amend any provision
of these Bylaws. The Board of Directors may amend or repeal these Bylaws,
unless (i) the Articles of Incorporation or the General Corporation Law of the
State of Maryland reserves this power exclusively to the shareholders; or (ii)
the shareholders, in amending or repealing a particular Bylaw, provide
expressly that the Board of Directors may not amend or repeal that particular
Bylaw.
ARTICLE X
EMERGENCY BYLAW
In the event that a quorum of directors cannot be readily
assembled because of a catastrophic event, the Board of Directors may take
action by the affirmative vote of a majority of those directors present at a
meeting and may exercise any emergency power granted to a board of directors
under the General Corporation Law of the State of Maryland not inconsistent
with this Bylaw. If less than three regularly elected directors are present,
the director present having the greatest seniority as a director may appoint
one or more persons (not to exceed the number most recently fixed by the Board
pursuant to Section 3.1) from among the officers or other executive employees
of the Corporation to serve as substitute directors. If no regularly elected
director is present, the officer present having the greatest seniority as an
officer shall serve as a substitute director, shall appoint up to four
additional persons from among the officers or other executive employees of the
Corporation to serve as substitute directors. Special meetings of the Board
of Directors may be called in an emergency by the director or, if no director
is present at the Corporation's principal offices, by the officer present
having the greatest seniority as an officer.
* * *
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I certify that the foregoing is a true and correct copy of the
Bylaws of JDN Realty Corporation, as adopted by the Board of Directors and the
shareholders of said Corporation on December 17, 1993, and as amended by the
Board of Directors as of March 24, 1994 and June 13, 1994.
/s/ William J. Kerley
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William J. Kerley, Secretary
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