SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended SEPTEMBER 30, 1995 COMMISSION FILE NUMBER 1-8927
COPLEY PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 04-2866555
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
399 BOYLSTON STREET, 13TH FL.
BOSTON, MASSACHUSETTS 02116
(Address of principal executive offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(617) 578-1200
(Former name, former address and former fiscal year if changed since last
report.)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding twelve 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
YES___X___ NO______
PAGE 1 OF 46 PAGES. SEE EXHIBIT INDEX ON PAGE 17.
As of November 9, 1995, there were issued and outstanding 3,584,350 shares
of Common Stock, $1.00 par value, and one share of Class A Common Stock, $1.00
par value.
COPLEY PROPERTIES, INC.
FORM 10-Q
FOR QUARTER ENDED SEPTEMBER 30, 1995
PART I
FINANCIAL INFORMATION
Page(s)
Item 1. Financial Statements 3
Item 2. Management's Discussion and Analysis 11
of Financial Condition and Results of Operations
COPLEY PROPERTIES, INC.
________________________________________________________________________
Consolidated Balance Sheets (Unaudited)
________________________________________________________________________
September 30, December 31,
1995 1994
------------- -------------
ASSETS
Real estate investments (Notes 4 and 5):
Property, net $ 80,548,368 $ 88,795,709
Joint ventures - 1,037,178
Investment in tenancies-in-common 2,186,305 -
Loans to joint ventures - 5,036,792
Ground lease (Note 4) - 1,187,000
Notes receivable 738,873 824,077
Other 184,260 681,356
------------- -------------
Total real estate investments 83,657,806 97,562,112
Cash and cash equivalents 1,401,071 1,491,554
Deferred financing costs (Note 7) - 486,366
------------- -------------
Total assets $ 85,058,877 $ 99,540,032
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES:
Losses of joint ventures
in excess of investment $ - $ 3,261,463
Accounts payable and other liabilities 357,418 436,478
Deposit on sale of property (Note 4) 1,290,000 -
Accrued management advisory fees 2,606,205 2,491,445
Line of credit borrowings - 3,500,000
Mortgage notes payable (Notes 4 and 5) 41,649,080 49,374,668
Dividend payable 967,754 -
------------- -------------
Total liabilities 46,870,457 59,064,054
------------- -------------
SHAREHOLDERS' EQUITY:
Common stock, $1.00 par value;
authorized 20,000,000 shares;
issued 4,007,500 shares 4,007,500 4,007,500
Additional paid-in capital 69,625,444 69,625,444
Treasury stock; 423,150 shares
of common stock, at cost (4,895,726) (4,895,726)
Cumulative deficit (30,548,799) (28,261,241)
Class A common stock 1 1
------------- -------------
Total shareholders' equity 38,188,420 40,475,978
------------- -------------
Total liabilities and
shareholders' equity $ 85,058,877 $ 99,540,032
============= =============
The accompanying notes are an integral part of these consolidated financial
statements.
COPLEY PROPERTIES, INC.
Consolidated Statements of Operations and Cumulative Deficit (Unaudited)
Quarter Ended Quarter Ended Nine Months Ended Nine Months Ended
Sept. 30, 1995 Sept. 30, 1994 Sept. 30, 1995 Sept. 30, 1994
-------------- -------------- ----------------- -----------------
INVESTMENT ACTIVITY (Note 6):
Property operations, net $ 314,475 $ 410,147 $ 1,097,441 $ 1,078,734
Share of real estate investment earnings
Operations 256,536 63,999 608,987 346,423
Lease termination charges - (2,020,471) - (2,020,471)
-------------- -------------- ----------------- -----------------
Total from real estate investments 571,011 (1,546,325) 1,706,428 (595,314)
Gain on sale of property - - 757,776 -
-------------- -------------- ----------------- -----------------
Total real estate activity 571,011 (1,546,325) 2,464,204 (595,314)
Interest on short-term investments
and cash equivalents 13,634 17,052 18,237 70,204
-------------- -------------- ----------------- -----------------
Total investment activity 584,645 (1,529,273) 2,482,441 (525,110)
-------------- -------------- ----------------- -----------------
PORTFOLIO EXPENSES:
Management advisory fee (109,807) (151,023) (390,152) (533,679)
General and administrative (87,839) (65,974) (289,655) (196,549)
Professional fees (229,882) (44,516) (583,959) (135,603)
Interest expense (9,520) (76,178) (173,427) (134,916)
Write-off of deferred financing costs (Note 7) - - (501,227) -
-------------- -------------- ----------------- -----------------
(437,048 (337,691) (1,938,420) (1,000,747)
-------------- -------------- ----------------- -----------------
NET INCOME (LOSS) 147,597 (1,866,964) 544,021 (1,525,857)
Common stock dividends (967,754) (896,071) (2,831,579) (2,473,159)
CUMULATIVE DEFICIT:
Beginning of period (29,728,642) (25,591,048) (28,261,241) (24,355,067)
-------------- -------------- ----------------- -----------------
End of period $ (30,548,799) $ (28,354,083) $ (30,548,799) $ (28,354,083)
============== ============== ================= =================
PER SHARE DATA:
Net Income $ .04 $ (.52) $ .15 $ (.43)
============== ============== ================= =================
Dividends $ .27 $ .25 $ .79 $ .69
============== ============== ================= =================
The accompanying notes are an integral part of these consolidated financial
statements.
COPLEY PROPERTIES, INC.
Consolidated Statements of Cash Flows (Unaudited)
Nine Months ended September 30,
1995 1994
------------- -------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 544,021 $ (1,525,857)
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Joint venture and tenancy-in common operations (539,142) (287,710)
Lease termination charges - 2,020,471
Cash distributions from joint ventures
and tenancies-in-common 629,020 1,216,676
Property depreciation and amortization 2,877,433 2,930,965
Write-off of deferred financing costs 501,227 -
Gain on sale of property (757,776) -
Increase in investment income receivable (79,088) -
Increase in deferred leasing commissions (380,147) (292,789)
Decrease (Increase) in property working capital 194,214 (226,284)
Increase in accounts payable and
accrued management advisory fees 27,853 120,872
Other, net - (27,068)
------------- -------------
Net cash provided by operating
activities 3,017,615 3,929,276
------------- -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Increase in loans to joint ventures (6,436) (28,225)
Reduction of loans to joint ventures - 85,271
Investment in Property (4,318,206) (3,259,167)
Decrease in short-term investments, net - 1,967,451
Investment in joint ventures (18,809) -
Proceeds from sale of property 12,982,793 -
Decrease in notes receivable 85,204 2,416,998
Increase in other assets (46,040) (199,477)
Deposit received on sale of property 1,290,000 -
------------- -------------
Net cash provided by investing activities 9,968,506 982,851
------------- -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Decrease) increase in line of
credit borrowings, net (3,500,000) 3,600,000
Proceeds from third-party mortgage note 3,250,000 -
Principal payments on mortgage notes (10,820,368) (6,776,019)
Dividends paid (1,863,825) (1,577,088)
Financing costs paid (142,411) -
------------- -------------
Net cash used in financing activities (13,076,604) (4,753,107)
------------- -------------
Net (decrease) increase in cash and cash
equivalents (90,483) 159,020
CASH AND CASH EQUIVALENTS:
Beginning of period 1,491,554 1,901,790
------------- -------------
End of period $ 1,401,071 $ 2,060,810
============= =============
The accompanying notes are an integral part of these consolidated financial
statements.
COPLEY PROPERTIES, INC.
Notes to Consolidated Financial Statements (Unaudited)
1 GENERAL
These financial statements have been prepared by Copley Properties, Inc. (the
"Company") without audit and reflect all normal and required adjustments which
are, in the opinion of management, necessary to fairly present the interim
results. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been omitted. It is suggested that these financial statements
be read in conjunction with the financial statements and notes thereto included
in the Company's audited financial statements for the year ended December 31,
1994.
Certain 1994 amounts have been reclassified to conform to the 1995
presentation.
2 ORGANIZATION AND BUSINESS
Copley Properties, Inc., a Delaware corporation, was incorporated in May 1985
and operates as a qualified real estate investment trust under applicable
provisions of the Internal Revenue Code of 1986, as amended. The Company
acquires, develops, operates and owns primarily industrial real estate. The
Company currently owns and operates, either directly or through tenancy-in-
common arrangements, 16 properties totaling over 2.8 million square feet of net
rentable area. Copley Real Estate Advisors, Inc. (the "Advisor") provides
investment management and administrative services to the Company. The Advisor
is an indirect wholly-owned subsidiary of New England Investment Companies, L.P.
("NEIC"), a publicly traded limited partnership. New England Mutual Life
Insurance Company is the principal unitholder of NEIC.
3 LINE OF CREDIT
The Company has an unsecured line of credit agreement with a bank which expires
on November 30, 1995. Under its terms, the Company can borrow up to $5,000,000
at the prime rate of interest or LIBOR plus 1.5%. As of September 30, 1995, the
Company had no borrowings under the line of credit. The Company is currently
negotiating an extension of the line of credit.
4 RESTRUCTURINGS, FINANCINGS, ACQUISITIONS AND SALES
Restructurings
On March 30, 1995, the restructuring of the ownership of three partnerships
that were formed to own certain of the Park North Business Center properties was
completed and transfer of 100% ownership of the properties to the Company
occurred. This restructuring does not impact the accompanying consolidated
financial statements as the Company obtained 100% economic control of the
entities at the beginning of 1994. As discussed further under "Sales," the
entire property was sold on June 30, 1995.
On August 16, 1995, the Company entered into agreements with certain of its co-
venture partners to restructure the ownership of their joint venture investments
as tenancies-in-common between the Company and the respective co-venturers.
Certain amounts previously recorded by the Company as loans to the joint
ventures have been reclassified as part of the Company's capital contribution to
its ownership interest in the tenancies-in-common. These transactions did not
generate a gain or loss or have an impact on shareholders' equity. Subsequent
to the establishment of the tenancies in common, the respective ownership
interests of the Company and its co-tenants-in-common are substantially
as follows:
Copley
Properties, Inc. Co-tenant
-----------------------------
Central Distribution Center 57.38% 42.62%
West Side Business Park 75.49% 24.51%
Metro Business Park 69.03% 30.97%
Dominguez Properties 55.00% 45.00%
Columbia Place 78.00% 22.00%
270 Technology Park 61.00% 39.00%
In September 1995, the Company paid approximately $100,000 to terminate an
incentive property management agreement in the Broadway Industrial Center
investment and paid approximately $200,000 in October 1995 to terminate an
incentive property management agreement at the Baygreen Industrial Park. As the
incentive property management agreements represent a contingent equity interest
in the properties granted at the date of acquisition, payable upon sale,
refinancing, or termination, the termination fees paid have been recorded as
acquisition costs and consequently added to the Company's carrying value of the
investments.
Financings
A mortgage note payable to CIGNA, secured by the University Business Center
property, with a $13,000,000 outstanding principal balance at December 31, 1994,
matured and was refinanced in February 1995. A principal paydown of $3,500,000
was made, the interest rate was reduced to 9.06% and the maturity date was
extended to April 1, 2000. The modified note requires principal amortization
payments based on a 20-year amortization schedule with the remaining balance due
at maturity. The Company obtained funds for the principal paydown from a short-
term mortgage loan secured by the Peachtree Corners Distribution Center.
In May 1995, the Company entered into an agreement to extend the maturity of
the mortgage notes payable to Wells Fargo Realty Advisors which were secured by
certain properties included in the Park North Business Center investment. The
maturity date of the notes was extended from May 31, 1995 to June 30,1995 and
the notes were paid in full with proceeds from the sale of the Park North
Business Center discussed below.
In June 1995, the Company entered into an agreement to extend the maturity of a
mortgage note payable to Wells Fargo Bank which is secured by the Huntwood
Associates property from June 15, 1995 to January 15, 1997 on the same terms and
conditions as the original financing.
In July 1995, the Company entered into an agreement to extend the maturity of
the mortgage notes payable to Massachusetts Mutual Life Insurance Company which
are secured by the Huntwood Associates and Wiegman Associates properties from
January 1, 1996 to June 1, 1996 on the same terms and conditions as the original
financings.
Acquisitions
In July 1995, the Company purchased the Kingsview Industrial Center, an 83,000
square foot industrial building located in Carson, California, for approximately
$3,000,000 in cash.
Sales
On March 28, 1995, the Company signed a purchase and sale agreement to sell all
of its interests and rights, including its ground lease position, related to the
Park North Business Center investment for approximately $18,500,000. The
closing occurred on June 30, 1995. Proceeds from the sale were used to pay off
the mortgage notes payable to Wells Fargo Realty Advisors discussed above and
the revenue bonds which were owed by the ground lessee and guaranteed by the
Company. After settlement of the debt and payment of selling expenses, the
Company received net cash proceeds of approximately $6,825,000, including a
deposit of $125,000 received in March 1995. The proceeds from this sale were
used to purchase the Kingsview Industrial Center property discussed above and to
pay off the Company's line of credit. The Company recognized a gain of
approximately $758,000 on the sale of this investment.
Also on March 28, 1995, the Company signed a purchase and sale agreement, with
the same buyer, to sell its interest in the Peachtree Corners Distribution
Center investment for a purchase price of approximately $10,000,000. It is
anticipated that the closing will occur by November 30, 1995. In addition, the
buyer loaned the Company $3,250,000 in February 1995. The loan is secured by a
first mortgage on the Peachtree Corners Distribution Center, bears interest at
the rate of 10% per annum payable monthly in arrears, may be prepaid at any time
without penalty, and matures November 30, 1995. In July 1995, the Company made
a payment to reduce the outstanding principal by $1,000,000. In June 1995,
coincident with the closing of the Park North Business Center sale, the buyer
made an additional deposit of $1,165,000. Upon consummation of the Peachtree
Corners Distribution Center sale, the Company expects to have received net cash
proceeds of approximately $7,750,000, which includes an initial deposit of
$125,000 received in March 1995 and the additional deposit received in June
1995. The Company also expects to recognize a gain on the sale of this
investment.
5 REAL ESTATE ASSETS AND LIABILITIES
The following is a summary of the assets and liabilities underlying the
Company's real estate investments:
September 30, December 31,
1995 1994
------------- -------------
PROPERTY
Land $ 22,694,254 $ 24,018,575
Buildings and improvements 60,634,384 66,402,879
Accumulated depreciation (6,472,554) (5,079,353)
Deferred leasing costs and other assets, net 1,384,082 1,487,678
Minority interest 1,507,692 1,471,483
------------- -------------
Total real estate assets 79,747,858 88,301,262
Accounts receivable 1,825,703 2,254,603
Accounts payable and other liabilities (1,025,193) (1,760,156)
------------- -------------
$ 80,548,368 $ 88,795,709
============= =============
Mortgage notes payable to third-parties $ 41,649,080 $ 49,374,668
============= =============
INVESTMENTS IN TENANCIES-IN-COMMON AND JOINT VENTURES
Land $ 8,246,048 $ 8,246,048
Buildings and improvements 35,667,726 35,542,264
Accumulated depreciation (13,624,385) (12,370,021)
Cash 462,240 346,176
Other, net 3,709,268 3,521,924
------------- ------------
Total assets 34,460,897 35,286,391
------------- ------------
Mortgage notes payable to third-parties 31,719,754 32,127,307
Other 1,052,193 1,913,431
------------- ------------
Total liabilities 32,771,947 34,040,738
------------- ------------
Net assets $ 1,688,950 $ 1,245,653
============= ============
Company's share:
Loans to joint ventures $ - $ 5,036,792
Capital 2,186,305 (2,224,285)
------------- ------------
$ 2,186,305 $ 2,812,507
============= ============
6 RESULTS OF REAL ESTATE INVESTMENTS
Operations
The following is a summary of the operating results of the properties
underlying the Company's real estate investments:
Nine Months Ended September 30,
1995 1994
------------ ------------
PROPERTY
Rentals $ 9,737,669 $ 9,910,390
Operating expenses (2,332,605) (2,263,831)
Interest expense (3,346,967) (3,523,708)
Depreciation and amortization (2,876,865) (2,950,492)
Minority interest (83,791) (93,625)
------------ ------------
$ 1,097,441 $ 1,078,734
============ ============
OPERATIONS OF TENANCIES-IN-COMMON AND JOINT VENTURES
Rentals $ 5,131,829 $ 5,599,091
Operating expenses (937,771) (854,372)
Interest expense (2,167,829) (2,180,695)
Depreciation and amortization (1,366,612) (4,084,520)
------------ ------------
$ 659,617 $ (1,520,496)
============ ============
Company share:
Interest on loans to joint ventures $ 69,845 $ 58,713
Equity in net income (losses) 539,142 (1,732,761)
------------ ------------
$ 608,987 $ (1,674,048)
============ ============
7 COSTS ASSOCIATED WITH PROPOSED EQUITY OFFERING AND AN INCREASED LINE OF
CREDIT
In late 1994, the Company commenced the marketing of additional equity on a
private placement basis and incurred $501,227 in Deferred Financing Costs in
connection with pursuing the private placement and arranging for an increased
line of credit, which was contingent on additional equity. Discussions with
potential investors did not produce an agreement on the terms of an equity
investment and the Company wrote off the Deferred Financing Costs in the quarter
ended March 31, 1995.
COPLEY PROPERTIES, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
LIQUIDITY AND CAPITAL RESOURCES
The Company's assets consist primarily of investments in real estate. Several
properties are owned directly by the Company; others are owned through tenancy-
in-common arrangements. As a tenant-in-common, the Company is obligated to fund
its proportionate share of operating deficits.
At September 30, 1995, the Company had cash and cash equivalents of $1,401,071.
The cash will be used to fund working capital needs. During the third quarter
of 1995, the Company entered into an agreement to extend its $5,000,000 bank
line of credit for ninety days to November 30, 1995. The Company is
currently negotiating another short term extension of the line of credit.
As more fully discussed under "Results of Operations" below, cash flow from
operations was $885,415 for the third quarter of 1995 compared to $1,075,410 for
the third quarter of 1994. For the nine months ended September 30, 1995 and
1994, cash flow from operations was $3,017,615 and $3,929,276, respectively.
The Company intends to distribute to its shareholders at least 95% of taxable
income so as to maintain its qualification as a real estate investment trust
under the Internal Revenue Code of 1986, as amended. Dividends will continue to
be paid from cash generated by operations, which usually exceeds taxable income.
A mortgage note payable, secured by the University Business Center property,
matured and was refinanced in February 1995. A principal paydown of $3,500,000
was made in conjunction with the refinancing. The funds for the paydown were
primarily obtained from a short-term mortgage loan of $3,250,000 secured by the
Peachtree Corners Distribution Center.
In May 1995, the Company entered into an agreement to extend the maturity of
the mortgage notes payable to Wells Fargo Realty Advisors which were secured by
certain properties included in the Park North Business Center investment. The
maturity date of the notes was extended from May 31, 1995 to June 30, 1995 and
the notes were paid in full with proceeds from the sale of the Park North
Business Center discussed below.
In June 1995, the Company entered into an agreement to extend the maturity of a
mortgage note payable to Wells Fargo Bank which is secured by the Huntwood
Associates property from June 15, 1995 to January 15, 1997 on the same terms and
conditions as the original financing.
In July 1995, the Company entered into an agreement to extend the maturity of
the mortgage notes payable to Massachusetts Mutual Life Insurance Company which
are secured by the Huntwood Associates and Wiegman Associates properties from
January 1, 1996 to June 1, 1996 on the same terms and conditions as the original
financings.
In late 1994, the Company commenced the marketing of additional equity on a
private placement basis and incurred $501,227 in Deferred Financing Costs in
connection with pursuing the private placement and arranging for an increased
line of credit, which was contingent on additional equity. Discussions with
potential investors did not produce an agreement on the terms of an equity
investment and the Company wrote-off the Deferred Financing Costs in the quarter
ended March 31, 1995.
During the second quarter of 1995, the Company retained Morgan Stanley & Co.
Incorporated (Morgan Stanley) as its financial advisor to assess the strategic
alternatives available to the Company in order to maximize shareholder value.
In September 1995, Morgan Stanley recommended that the Company solicit the
interest of third parties in merging with the Company or acquiring its stock or
assets. Based on this recommendation, as well as the advice from its legal
advisors and the Company's management, the Board of Directors determined that it
was in the best interest of the shareholders to gauge the market's interest in
acquiring the Company. The Board of Directors emphasized that the Company would
not be sold unless the price and other terms were in the best interest of the
shareholders. Morgan Stanley is currently assisting the Company in the
solicitation of interest of third parties. Included in professional fees for
the nine months ended September 30, 1995 is approximately $249,000 of fees and
expenses earned by Morgan Stanley and $195,000 in legal fees incurred in
connection with this process. In addition, fees paid to the Board of Directors
for the nine months ended September 30, 1995, which are included in general and
administrative expenses, increased by $84,000 over the comparable period last
year due to increased frequency of meetings and an increase in the per meeting
fee payable to each director which became effective during the second quarter of
1995.
The carrying value of real estate investments in the consolidated financial
statements is reduced to net realizable value, if lower, which is measured by
the expected undiscounted future cash flows of the investment. Carrying value,
however, may be greater or less than current appraised value.
RESULTS OF OPERATIONS
Sales and Acquisitions
During the first quarter of 1995, the Company signed purchase and sale
agreements to sell its rights and interests in the Park North Business Center
and Peachtree Corners Distribution Center investments for $18,500,000 and
$10,000,000, respectively The buyer of the properties paid a deposit of
$250,000 and loaned the Company $3,250,000 in exchange for a mortgage note
payable secured by the Peachtree Corners Distribution Center. On June 30, 1995,
the buyer deposited an additional $1,165,000 on the Peachtree Corners
Distribution Center. In July 1995, the Company made a payment of $1,000,000,
reducing the mortgage loan on the Peachtree Corners Distribution Center to
$2,250,000.
On June 30, 1995, the sale of the Park North Business Center closed. After
settlement of the debt obligations encumbering the Park North Business Center
properties and payment of selling expenses and other deductions, the Company
received cash of approximately $6,825,000, including $125,000 of the initial
deposit discussed above, and recognized a gain of approximately $758,000. Net
proceeds from the sale were used to pay off the outstanding balance on the line
of credit and to purchase Kingsview Industrial Center, an industrial building in
Carson, California in July 1995.
The Peachtree Corners Distribution Center sale is expected to close by November
30, 1995. Upon closing, the remaining principal on the mortgage note
encumbering the property will be paid and the Company expects to receive net
cash proceeds of approximately $7,750,000, which includes $125,000 of the
initial deposit and the $1,165,000 additional deposit discussed above. The
Company also expects to recognize a gain on the sale of this investment.
Restructurings
On March 30, 1995, the restructuring of the ownership of three partnerships
that were formed to own a portion of the Park North Business Center investment
was completed and transfer of 100% ownership of the property to the Company
occurred. This restructuring transaction did not affect net income (loss) or
shareholders' equity. As discussed above, the Company sold its interest in this
investment in June 1995.
On August 16, 1995, the Company entered into agreements with certain of its co-
venture partners to restructure the ownership of the joint venture investments
as tenancies-in-common. Certain amounts previously recorded by the Company as
loans to the joint ventures have been reclassified as part of the Company's
capital contribution to its ownership interest in the tenancies-in-common.
These transactions did not generate a gain or a loss or have an impact on
shareholders' equity.
In September 1995, the Company paid approximately $100,000 to terminate an
incentive property management agreement in the Broadway Industrial Center
investment and paid approximately $200,000 in October 1995 to terminate an
incentive property management agreement at the Baygreen Industrial Park. As the
incentive property management agreements represent a contingent equity interest
in the properties granted at the date of acquisition, payable upon sale,
refinancing, or termination, the termination fees have been recorded as
acquisition costs and consequently added to the Company's carrying value of the
investments.
The Company continues to seek opportunities to restructure its investments to
consolidate its ownership interests.
Investment Performance
For the quarter ended September 30, 1995, income from real estate operations
was $571,011 as compared to a loss of $1,546,325, which included $2,020,471 in
lease termination charges, in the same quarter in 1994. After eliminating the
effect of the lease termination charges, the improvement from prior year is
primarily due to a decrease in depreciation expense which resulted from the sale
of the Park North Business Center on June 30, 1995; lower interest expense due
to debt reductions at certain properties; income generated from Kingsview
Industrial Center which was purchased in July 1995; and increased rental revenue
at certain properties due to higher occupancy rates. The overall leased
percentage for the portfolio was 98% at September 30, 1995, up from 95% a year
earlier. These improvements were partially offset by a write-off of
approximately $83,000 in rent receivable from a former tenant of the Huntwood
Associates property; the expiration in the first quarter of 1995 of a lease
representing approximately one-half the rentable space at the Los Angeles
Corporate Center; and the loss of operating income generated from the Park North
property which was sold.
For the nine months ended September 30, 1995, income from real estate
operations was $1,706,428 as compared to a loss of $595,314 in the same period
last year. After eliminating the effect of the lease termination charges
recorded in 1994, the improvement from prior year is primarily due to the items
noted above.
Cash flow from operations was $3,017,615 for the nine months ended September
30, 1995 compared to $3,929,276 for the same period in 1994. The decrease is
due primarily to the following four factors: 1) under the terms of the new
lease at Columbia Place, cash flow from rent in 1995 is less than in previous
years, 2) cash from operations in the first quarter of 1994 benefited from the
realization of cash upon conversion of the Park North Business Center property
from a joint venture accounted for under the equity method to a wholly-owned
property accounted for on a consolidated basis, and 3.) a significant lease
expired at the Los Angeles Corporate Center in the first quarter of 1995, and
4.) the Park North Business Center was sold in the second quarter of 1995.
These decreases to cash flow were partially offset by general improvement in
operations at the other properties.
Portfolio Expenses
Professional fees for the quarter ended September 30, 1995 increased by
$185,366 from the same period in 1994. This increase is primarily the result of
certain costs incurred by the Company related to its consideration of various
strategic alternatives aimed at maximizing shareholder value and subsequent
solicitation of proposals to acquire the Company. Included in
professional fees for the third quarter of 1995 is approximately $116,000
of investment advisory fees earned by Morgan Stanley and approximately $61,000
in legal fees related to this process. In addition, fees paid to the Board of
Directors, which are included in general and administrative expenses, increased
by $28,000 over the comparable quarter last year due to increased frequency of
meetings and an increase in the per meeting fee payable to each director which
became effective during the second quarter of 1995.
Interest expense for the third quarter was $9,520 and $76,178 in 1995 and 1994,
respectively. The decrease in interest expense is the result of lower
borrowings under the Company's line of credit.
Portfolio expenses increased in the first nine months of 1995 compared to 1994,
primarily due to the legal fees, investment advisory fees, and directors'
compensation expense incurred during the second and third quarters and the
$501,227 write-off of deferred financing costs during the first quarter.
Management advisory fees for the period decreased by approximately $143,500 in
comparison to the same period in 1994 which is consistent with the decrease in
cash flow from operations upon which the fee is based. Interest expense through
September 30, 1995 increased over the same period in 1994 as a result of higher
borrowings on the Company's line of credit during the first two quarters of
1995.
COPLEY PROPERTIES, INC.
FORM 10-Q
FOR QUARTER ENDED SEPTEMBER 30, 1995
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits: See Exhibit Index on page 17.
b. Reports on Form 8-K: On October 6, 1995, the Company filed one
current report on Form 8-K dated September 28, 1995, reporting item
No. 5 "Other Events," in which the Company reported that on
September 20, 1995 it had amended the rights agreement between the
Company and State Street Bank & Trust Company.
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT PAGE NUMBER
3 (i) Articles of Incorporation. Restated *
Certificate of Incorporation of Copley
Properties, Inc. dated June 24, 1985;
Certificate of Amendment to the Certificate
of Incorporation of Copley Properties, Inc.
dated May 9, 1990; Certificate of Amendment
to the Restated Certificate of Incorporation of
Copley Properties, Inc. dated June 16, 1994.
3 (ii) By-Laws. By-Laws of Copley Properties, Inc. 18
as amended to date.
27 Financial Data Schedule 45
* incorporated by reference
BY-LAWS
OF
COPLEY PROPERTIES, INC.
BY-LAWS
TABLE OF CONTENTS
ARTICLE 1 - Stockholders................................. 1
Section 1.1 Place of Meetings........................ 1
Section 1.2 Annual Meeting........................... 1
Section 1.3 Special Meetings......................... 1
Section 1.4 Notice of Meetings....................... 1
Section 1.5 Voting List.............................. 2
Section 1.6 Quorum................................... 2
Section 1.7 Adjournments............................. 2
Section 1.8 Voting and Proxies....................... 2
Section 1.9 Action at Meeting........................ 3
Section 1.10 Action without Meeting................... 3
ARTICLE 2 - Directors...................................... 3
Section 2.1 General Powers........................... 3
Section 2.2 Number; Election and
Qualification............................ 3
Section 2.3 Independent Directors.................... 4
Section 2.4 Approval by Independent
Directors................................ 4
Section 2.5 Duties of Independent Directors.......... 4
Section 2.6 Enlargement of the Board................. 5
Section 2.7 Tenure................................... 5
Section 2.8 Vacancies................................ 5
Section 2.9 Resignation.............................. 6
Section 2.10 Regular Meetings......................... 6
Section 2.11 Special Meetings......................... 6
Section 2.12 Notice of Special
Meetings................................. 6
Section 2.13 Meetings by Telephone
Conference Calls......................... 6
Section 2.14 Quorum................................... 7
Section 2.15 Action by Meeting........................ 7
Section 2.16 Action by Consent........................ 7
Section 2.17 Removal.................................. 7
Section 2.18 Committees............................... 7
Section 2.19 Compensation of Directors................ 8
Section 2.20 Nomination of Directors.................. 8
ARTICLE 3 - Officers....................................... 9
Section 3.1 Enumeration.............................. 9
Section 3.2 Election................................. 9
Section 3.3 Qualification............................ 9
Section 3.4 Tenure................................... 9
Section 3.5 Resignation and Removal.................. 9
Section 3.6 Vacancies................................ 10
Section 3.7 Chairman and Vice-Chairman
of the Board............................. 10
Section 3.8 President................................ 10
Section 3.9 Vice Presidents.......................... 10
Section 3.10 Secretary and Assistant
Secretaries.............................. 11
Section 3.11 Treasurer and Assistant
Treasurers............................... 11
Section 3.12 Salaries................................. 12
ARTICLE 4 - Capital Stock.................................. 12
Section 4.1 Issuance of Stock........................ 12
Section 4.2 Certificates of Stock.................... 12
Section 4.3 Transfers................................ 12
Section 4.4 Lost, Stolen or Destroyed
Certificates............................. 13
Section 4.5 Record Date.............................. 13
ARTICLE 5 - Indemnification................................ 14
Section 5.1 Actions, Suits and Proceedings
Other than by or in the Right
of the Corporation....................... 14
Section 5.2 Actions or Suits by or in
the Right of the Corporation............. 14
Section 5.3 Indemnification of Expenses
of Successful Party...................... 15
Section 5.4 Notification and Defense
of Claim................................. 15
Section 5.5 Advance of Expenses...................... 16
Section 5.6 Procedure for Indemnification............ 17
Section 5.7 Remedies................................. 17
Section 5.8 Subsequent Amendment..................... 18
Section 5.9 Other Rights............................. 18
Section 5.10 Partial Indemnification.................. 18
Section 5.11 Insurance................................ 18
Section 5.12 Merger or Consolidation.................. 19
Section 5.13 Savings Clause........................... 19
Section 5.14 Definitions.............................. 19
Section 5.15 Subsequent Legislation................... 19
ARTICLE 6 - General Provisions............................. 19
Section 6.1 Fiscal Year.............................. 19
Section 6.2 Corporate Seal........................... 19
Section 6.3 Waiver of Notice......................... 19
Section 6.4 Voting of Securities..................... 20
Section 6.5 Evidence of Authority.................... 20
Section 6.6 Certificate of
Incorporation............................ 20
Section 6.7 Transactions with
Interested Parties....................... 20
Section 6.8 Annual Statement......................... 21
Section 6.9 Certain Policies of the
Corporation.............................. 21
Section 6.10 Severability............................. 23
Section 6.11 Pronouns................................. 23
ARTICLE 7 - Amendments..................................... 23
Section 7.1 By the Board of Directors................ 23
Section 7.2 By the Stockholders...................... 23
BY-LAWS
OF
COPLEY PROPERTIES, INC.
ARTICLE 1 - Stockholders
1.1 Place of Meetings. All meetings of stockholders
shall be held at such place within or without the State of
Delaware as may be designated from time to time by the Board of
Directors or the President or, if not so designated, at the
registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders
for the election of directors and for the transaction of such
other business as may properly be brought before the meeting shall
be held on the second Tuesday of June in each year, at a time
fixed by the Board of Directors. If this date shall fall upon a
legal holiday at the place of the meeting, then such meeting shall
be held on the next succeeding business day at the same hour. If
no annual meeting is held in accordance with the foregoing
provisions, the Board of Directors shall cause the meeting to be
held as soon thereafter as convenient. If no annual meeting is
held in accordance with the foregoing provisions, a special
meeting may be held in lieu of the annual meeting, and any action
taken at that special meeting shall have the same effect as if it
had been taken at the annual meeting, and in such case all
references in these By-Laws to the annual meeting of the
stockholders shall be deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of the
stockholders may be called at any time by the Board of Directors,
by a majority of the Independent Directors (as defined below) or
by the Chairman of the Board of Directors (the "Chairman").
Business transacted at any special meeting of stockholders shall
be limited to matters relating to the purpose or purposes stated
in the notice of the meeting.
1.4 Notice of Meetings. Except as otherwise provided by
law, written notice of each meeting of stockholders, whether
annual or special, shall be given not less than 10 nor more than
60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notices of all meetings
shall state the place, date and hour of the meeting. The notice of
a special meeting shall state, in addition, the purpose or
purposes for which the meeting is called. If mailed, notice is
given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the
records of the corporation.
1.5 Voting List. The officer who has charge of the
stock ledger of the corporation shall prepare, at least 10 days
before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least 10 days prior to
the meeting, at a place within the city where the meeting is to be
held. The list shall also be produced and kept at the time and
place of the meeting during the whole time of the meeting, and may
be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the holders of a
majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be
adjourned to any other time and to any other place at which a
meeting of stockholders may be held under these By-Laws by the
stockholders present or represented at the meeting and entitled to
vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify
any stockholder of any adjournment of less than 30 days if the
time and place of the adjourned meeting are announced at the
meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting.
At the adjourned meeting, the corporation may transact any
business which might have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have
one vote for each share of stock entitled to vote held of record
by such stockholder and a proportionate vote for each fractional
share so held, unless otherwise provided in the Certificate of
Incorporation. Each stockholder of record entitled to vote at a
meeting of stockholders, or to express consent or dissent to
corporate action in writing without a meeting, may vote or express
such consent or dissent in person or may authorize another person
or persons to vote or act for him by written proxy executed by the
stockholder or his authorized agent and delivered to the Secretary
of the corporation. No such proxy shall be voted or acted upon
after three years from the date of its execution, unless the proxy
expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any
meeting, the holders of a majority of the stock present or
represented and voting on a matter (or if there are two or more
classes of stock entitled to vote as separate classes, then in the
case of each such class, the holders of a majority of the stock of
that class present or represented and voting on a matter) shall
decide any matter to be voted upon by the stockholders at such
meeting, except when a different vote is required by express
provision of law, the Certificate of Incorporation or these By-
Laws. Any election by stockholders shall be determined by a
plurality of the votes cast by the stockholders entitled to vote
at the election.
1.10 Action without Meeting. Any action required or
permitted to be taken at any annual or special meeting of
stockholders of the corporation may be taken without a meeting,
without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the holders of all
of the outstanding stock of the corporation entitled to vote on
such action.
ARTICLE 2 - Directors
2.1 General Powers. The business and affairs of the
corporation shall be managed by or under the direction of a Board
of Directors, who may exercise all of the powers of the
corporation except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws. The Board of Directors may
delegate the duty of management of the assets and the
administration of its day-to-day operation to an investment
advisor (the "Advisor") pursuant to a written contract or
contracts, or any renewal thereof, which have obtained the
requisite approvals of the Board of Directors, including a
majority of the Independent Directors. In the event of a vacancy
in the Board of Directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full
Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of
directors which shall constitute the whole Board of Directors
shall be determined by resolution of the Board of Directors, but
in no event shall be less than three. The number of directors may
be decreased at any time and from time to time by a majority of
the directors then in office, but only to eliminate vacancies
existing by reason of the death, resignation, removal or
expiration of the term of one or more directors. Except as
provided in Section 2.8 of this Article II, the directors shall be
elected at the annual meeting of stockholders by such stockholders
as have the right to vote on such election. Directors need not be
stockholders of the corporation.
2.3 Independent Directors. At least a majority of the
entire Board of Directors and a majority of every committee of the
Board of Directors shall be Independent Directors. An Independent
Director shall mean a Director who is not, directly or indirectly,
an affiliate of the Advisor of the corporation. An affiliate of
the Advisor shall mean a person who: (a) is an officer or
director or employee of the Advisor; (b) beneficially owns 5% or
more of any class of equity securities of the Advisor because of
the power to vote, sell, or exercise a right to acquire such
securities; (c) is an officer, director or employee of, or
beneficially owns 5% or more of any class of equity securities of
an entity that controls, is controlled by or is under common
control with, the Advisor; or (d) has a member of his immediate
family who has one of the foregoing relationships with the
Advisor.
2.4 Approval by Independent Directors. For all
purposes, a transaction which is subject to approval by a majority
of the Independent Directors shall be approved if such transaction
is approved by a majority of the Directors present and entitled to
vote at a meeting at which a quorum is present, provided that the
Independent Directors voting to approve the transaction constitute
an absolute majority of all Independent Directors serving at such
time.
2.5 Duties of Independent Directors. The Independent
Directors of the corporation shall have the special duties
described in this Section 2.5:
(a) The Independent Directors shall supervise the
relationship of the corporation with the Advisor and shall
evaluate the capability and performance of the Advisor before
entering into or renewing any advisory agreement (the "Advisory
Agreement"). The criteria used to evaluate the performance of the
Advisor shall be set forth in the minutes of a meeting of the
Board of Directors. The Independent Directors shall supervise the
performance of the Advisor and the compensation paid to it by the
corporation to determine that the provisions of any Advisory
Agreement between the corporation and the Advisor are being
carried out. The Independent Directors shall determine at least
annually that the compensation that the corporation agrees to pay
to the Advisor is reasonable in relation to the nature and the
quality of services performed. Each Independent Director shall
have a fiduciary duty to supervise the relationship of the
corporation to the Advisor.
(b) The Independent Directors 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 interests of its stockholders. The findings of the
Independent Directors shall be set forth in the minutes of
meetings of the Board of Directors. Such investment policies may
be altered from time to time by the Board of Directors with the
consent of a majority of the Independent Directors and without
approval of the stockholders upon a determination that such a
change is in the best interests of the corporation and the
stockholders.
(c) The Independent Directors shall determine,
from time to time, but at least annually, that the total fees and
expenses of the corporation are reasonable in light of the
investment experience of the corporation, its net assets, its net
income, and the fees and expenses of other comparable investment
managers in real estate. The findings of the Independent
Directors shall be set forth in the minutes of meetings of the
Board of Directors.
(d) The Independent Directors shall review at
least quarterly the aggregate borrowings, secured and unsecured,
of the corporation to determine that the relation of such
borrowings to net assets does not exceed 300% without the approval
of a majority of the Independent Directors.
(e) The Independent Directors shall take
reasonable steps to ensure that the annual statement required
pursuant to Section 6.8 of Article VI of these By-laws be
prepared.
2.6 Enlargement of the Board. The number of directors
may be increased at any time and from time to time by a majority
of the directors then in office.
2.7 Tenure. Each director shall hold office until the
next annual meeting and until his successor is elected and
qualified, or until his earlier death, resignation or removal.
2.8 Vacancies. Any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an
enlargement of the Board, may be filled by vote of a majority of
the directors then in office, although less than a quorum, or by a
sole remaining director, provided, however, that any vacancy that
must be filled by an Independent Director shall be filled by
selection of a successor by a majority vote of the remaining
Independent Directors (although less than a quorum). A director
elected to fill a vacancy shall be elected for the unexpired term
of his predecessor in office, and a director chosen to fill a
position resulting from an increase in the number of directors
shall hold office until the next annual meeting of stockholders
and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
2.9 Resignation. Any director may resign by delivering
his written resignation to the corporation at its principal office
or to the President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at
some other time or upon the happening of some other event.
2.10 Regular Meetings. Regular meetings of the Board
of Directors may be held without notice at such time and place,
either within or without the State of Delaware, as shall be
determined form time to time by the Board of Directors; provided
that any director who is absent when such a determination is made
shall be given notice of the determination. A regular meeting of
the Board of Directors may be held without notice immediately
after and at the same place as the annual meeting of stockholders.
2.11 Special Meetings. Special meetings of the Board of
Directors may be held at any time and place, within or without the
State of Delaware, designated in a call by the Chairman, the
President, two or more directors, or by one director in the event
that there is only a single director in office.
2.12 Notice of Special Meetings. Notice of any special
meeting of directors shall be given to each director by the
Secretary or by the officer or one of the directors calling the
meeting. Notice shall be duly given to each director (i) by
giving notice to such director in person or by telephone at least
48 hours in advance of the meeting, (ii) by sending a telegram or
telex, or delivering written notice by hand, to his last known
business or home address at least 48 hours in advance of the
meeting, or (iii) by mailing written notice to his last known
business or home address at least 72 hours in advance of the
meeting. A notice or waiver of notice of a meeting of the Board
of Directors need not specify the purposes of the meeting.
2.13 Meetings by Telephone Conference Calls. Directors
or any members of any committee designated by the directors may
participate in a meeting of the Board of Directors or such
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at
such meeting.
2.14 Quorum. A majority of the total number of the
whole Board of Directors shall constitute a quorum at all meetings
of the Board of Directors. In the event one or more of the
directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the
directors present may adjourn the meeting from time to time
without further notice other than announcement at the meeting,
until a quorum shall be present.
2.15 Action at Meeting. At any meeting of the Board of
Directors at which a quorum is present, the vote of a majority of
those present shall be sufficient to take any action, unless a
different vote is specified by law, the Certificate of
Incorporation or these By-Laws.
2.16 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee of the Board of Directors may be taken without a
meeting, if all members of the Board or committee, as the case may
be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.17 Removal. Any one or more or all of the directors
may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of
directors, except that the directors elected by the holders of a
particular class or series of stock may be removed without cause
only by vote of the holders of a majority of the outstanding
shares of such class or series.
2.18 Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one
or more committees, including an Investment Committee and an Audit
Committee, each committee to consist of one or more of the
directors of the Corporation. At least a majority of the
directors of each committee shall be Independent Directors. The
Board may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members
of the committee present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the
resolution of the Board of Directors and subject to the provisions
of the General Corporation Law of the State of Delaware, shall
have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
corporation and may authorize the seal of the corporation to be
affixed to all papers which may require it. Each such committee
shall keep minutes and make such reports as the Board of Directors
may from time to time request. Except as the Board of Directors
may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as
nearly as possible in the same manner as is provided in these By-
Laws for the Board of Directors.
2.19 Compensation of Directors. Directors may be paid
such compensation for their services and such reimbursement for
expenses of attendance at meetings as the Board of Directors may
from time to time determine. No such payment shall preclude any
director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving
compensation for such service.
2.20 Nomination of Directors. Nominations for the
election of directors may be made by the Board of Directors or by
any stockholder entitled to vote in the election of directors
generally; provided, however, any stockholder entitled to vote in
the election of directors generally may nominate one or more
persons for election as directors at a meeting only if written
notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by
United States mail, postage prepaid, to the Secretary of the
corporation not later than (i), with respect to an election to be
held at an annual meeting of stockholders, 90 days in advance of
such meeting, and (ii), with respect to an election to be held at
a special meeting of stockholders for the election of directors,
the close of business on the seventh day following the date on
which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the corporation
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included
in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission, had the nominee been
nominated, or intended to be nominated, by the Board of Directors;
and (e) the consent of each nominee to serve as a director of the
corporation if so elected. The Chairman of the meeting may refuse
to acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall
consist of a Chairman, a President, a Secretary, a Treasurer and
such other officers with such other titles as the Board of
Directors shall determine, including a Vice Chairman of the Board,
and one or more Vice Presidents, Assistant Treasurers, and
Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election. The Chairman, President, Treasurer and
Secretary shall be elected annually by the Board of Directors at
its first meeting following the annual meeting of stockholders.
Other officers may be appointed by the Board of Directors at such
meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder.
Any two or more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by
the Certificate of Incorporation or by these By-Laws, each officer
shall hold office until his successor is elected and qualified,
unless a different term is specified in the vote choosing or
appointing him, or until his earlier death, resignation or
removal.
3.5 Resignation and Removal. Any officer may resign by
delivering his written resignation to the corporation at its
principal office or to the President or Secretary. Such
resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some
other event.
Any officer may be removed at any time, with or without
cause, by vote of a majority of the entire number of directors
then in office.
Except as the Board of Directors may otherwise
determine, no officer who resigns or is removed shall have any
right to any compensation as officer for any period following his
resignation or removal, or any right to damages on account of such
removal, whether his compensation be by the month or by the year
or otherwise, unless such compensation is expressly provided in a
duly authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any
vacancy occurring in any office for any reason and may, in its
discretion, leave unfilled for such period as it may determine any
offices other than those of Chairman, President, Treasurer and
Secretary. Each such successor shall hold office for the
unexpired term of his predecessor and until his successor is
elected and qualified, or until his earlier death, resignation or
removal.
3.7 Chairman and Vice Chairman of the Board. The Board
of Directors may designate the Chairman as Chief Executive
Officer. The Chairman shall preside at all meetings of the Board
of Directors and shall perform such other duties and possess such
other powers as are assigned to him by the Board of Directors. If
the Board of Directors appoints a Vice Chairman of the Board, he
shall, in the absence or disability of the Chairman, perform the
duties and exercise the powers of the Chairman and shall perform
such other duties and possess such other powers as may from time
to time be vested in him by the Board of Directors.
3.8 President. The President shall be the Chief
Operating Officer of the corporation. Unless the Board of
Directors has designated the Chairman as Chief Executive Officer,
the President shall also be the Chief Executive Officer of the
corporation. The President shall, subject to the direction of the
Board of Directors, have general charge and supervision of the
business of the corporation. Unless otherwise provided by the
Board of Directors, he shall preside at all meetings of the
stockholders. The President shall perform such other duties and
shall have such other powers as the Board of Directors may from
time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform
such duties and possess such powers as the Board of Directors or
the President may from time to time prescribe. In the event of
the absence, inability or refusal to act of the President, the
Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors)
shall perform the duties of the President and when so performing
shall have all the powers of and be subject to all the
restrictions upon the President. The Board of Directors may
assign to any Vice President the title of Executive Vice
President, Senior Vice President or any other title selected by
the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary
shall perform such duties and shall have such powers as the Board
of Directors or the President may from time to time prescribe. In
addition, the Secretary shall perform such duties and have such
powers as are incident to the office of the secretary, including
without limitation the duty and power to give notices of all
meetings of stockholders and special meetings of the Board of
Directors, to attend all meetings of stockholders and the Board of
Directors and keep a record of the proceedings, to maintain a
stock ledger and prepare lists of stockholders and their addresses
as required, to be custodian of corporate records and the
corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and
possess such powers as the Board of Directors, the President or
the Secretary may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Secretary, the
Assistant Secretary (or, if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the
Secretary.
In the absence of the Secretary or any Assistant
Secretary at any meeting of stockholders or directors, the person
presiding at the meeting shall designate a temporary secretary to
keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer
shall perform such duties and shall have such powers as may from
time to time be assigned to him by the Board of Directors or the
President. In addition, the Treasurer shall perform such duties
and have such powers as are incident to the office of treasurer,
including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to
deposit funds of the corporation in depositories selected in
accordance with these By-Laws, to disburse such funds as ordered
by the Board of Directors, to make proper accounts of such funds,
and to render as required by the Board of Directors statements of
all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and
possess such powers as the Board of Directors, the President or
the Treasurer may from time to time prescribe. In the event of
the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer (or, if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the
Treasurer.
3.12 Salaries. Officers of the corporation shall be
entitled to such salaries, compensation or reimbursement as shall
be fixed or allowed from time to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the
stockholders and subject to the provisions of the Certificate of
Incorporation, the whole or any part of any unissued balance of
the authorized capital stock of the corporation or the whole or
any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of
Directors in such manner, for such consideration and on such terms
as the Board of Directors may determine.
4.2 Certificate of Stock. Every holder of stock of the
corporation shall be entitled to have a certificate, in such form
as may be prescribed by law and by the Board of Directors,
certifying the number and class of shares owned by him in the
corporation. Each such certificate shall be signed by, or in the
name of the corporation by, the Chairman or Vice Chairman of the
Board of Directors, or the President or a Vice President, and the
Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the corporation. Any or all of the
signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject
to any restriction on transfer pursuant to the Certificate of
Incorporation, the By-Laws, applicable securities laws or any
agreement among any number of shareholders or among such holders
and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction or
a statement of the existence of such restriction.
4.3 Transfers. Except as otherwise established by
rules and regulations adopted by the Board of Directors, and
subject to applicable law, shares of stock may be transferred on
the books of the corporation by the surrender to the corporation
or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power
of attorney properly executed, and with such proof of authority or
the authenticity of signature as the corporation or its transfer
agent may reasonably require. Except as may be otherwise required
by law, by the Certificate of Incorporation or by these By-Laws,
the corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote
with respect to such stock, regardless of any transfer, pledge or
other disposition of such stock until the shares have been
transferred on the books of the corporation in accordance with the
requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates. The
corporation may issue a new certificate of stock in place of any
previously issued certificate alleged to have been lost, stolen,
or destroyed, upon such terms and conditions as the Board of
Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such
indemnity as the Board of Directors may require for the protection
of the corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in
advance a date as a record date for the determination of the
stockholders entitled to notice of or to vote at any meeting of
stockholders or to express consent (or dissent) to corporate
action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any
rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action. Such record date
shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 60 days prior to any other action to
which such record date relates.
If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the
day before the day on which notice is given, or, if notice is
waived, at the close of business on the day before the day on
which the meeting is held. The record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is necessary, shall be the day on which the first
written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating to such purpose.
A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 - Indemnification
5.1 Actions, Suits and Proceedings Other than by or in the
Right of the Corporation. The corporation shall indemnify each
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was, or has
agreed to become, a director or officer of the corporation, or is
or was serving, or has agreed to serve, at the request of the
corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan)
(all such persons being referred to hereafter as an "Indemnitee"),
or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful. Notwithstanding anything to the contrary in
this Article, except as set forth in Section 5.7 below, the
corporation shall not indemnify an Indemnitee seeking
indemnification in connection with a proceeding (or part thereof)
initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the corporation.
Notwithstanding anything to the contrary in this Article, the
corporation shall not indemnify an Indemnitee to the extent such
Indemnitee is reimbursed from the proceeds of insurance, and in
the event the corporation makes any indemnification payments to an
Indemnitee and such Indemnitee is subsequently reimbursed from the
proceeds of insurance, such Indemnitee shall promptly refund such
indemnification payments to the corporation to the extent of such
insurance reimbursement.
5.2 Actions or Suits by or in the Right of the Corporation.
The corporation shall indemnify any Indemnitee who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was, or has agreed to become, a director or
officer of the corporation, or is or was serving, or has agreed to
serve, at the request of the corporation, as a director, officer
or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including
any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses
(including attorneys' fees) and, to the extent permitted by law,
amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Court of Chancery of Delaware shall determine upon application
that, despite the adjudication of such liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware shall
deem proper.
5.3 Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the
extent that an Indemnitee has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred
to in Sections 5.1 and 5.2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action,
suit or proceeding, he shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by
him or on his behalf in connection therewith. Without limiting
the foregoing, if any action, suit or proceeding is disposed of,
on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the
Indemnitee, (ii) an adjudication that the Indemnitee was liable to
the corporation, (iii) a plea of guilty or nolo contendere by the
Indemnitee, (iv) an adjudication that the Indemnitee did not act
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and (v) with
respect to any criminal proceeding, an adjudication that the
Indemnitee had reasonable cause to believe his conduct was
unlawful, the Indemnitee shall be considered for the purposes
hereof to have been wholly successful with respect thereto.
5.4 Notification and Defense of Claim. As a condition
precedent to his right to be indemnified, the Indemnitee must
notify the corporation in writing as soon as practicable of any
action, suit, proceeding or investigation involving him for which
indemnity will or could be sought. With respect to any action,
suit, proceeding or investigation of which the corporation is so
notified, the corporation will be entitled to participate therein
at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the
Indemnitee. After notice from the corporation to the Indemnitee
of its election so to assume such defense, the corporation shall
not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this Section 5.4. The
Indemnitee shall have the right to employ his own counsel in
connection with such claim, but the fees and expenses of such
counsel incurred after notice from the corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee
has been authorized by the corporation, (ii) counsel to the
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between
the corporation and the Indemnitee in the conduct of the defense
of such action or (iii) the corporation shall not in fact have
employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel for the Indemnitee
shall be at the expense of the corporation, except as otherwise
expressly provided by this Article. The corporation shall not be
entitled, without the consent of the Indemnitee, to assume the
defense of any claim brought by or in the right of the corporation
or as to which counsel for the Indemnitee shall have reasonably
made the conclusion provided for in clause (ii) above.
5.5 Advance of Expenses. Subject to the provisions of
Section 5.6 below, in the event that the corporation does not
assume the defense pursuant to Section 5.4 of this Article of any
action, suit, proceeding or investigation of which the corporation
receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the corporation in advance of the final
disposition of such matter; provided, however, that the payment of
such expenses incurred by an Indemnitee in advance of the final
disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified by the
corporation as authorized in this Article. Such undertaking shall
be accepted without reference to the financial ability of the
Indemnitee to make such repayment.
5.6 Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to
Section 5.1, 5.2, 5.3 or 5.5 of this Article, the Indemnitee shall
submit to the corporation a written request, including in such
request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to
determine whether and to what extent the Indemnitee is entitled to
indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made promptly,
and in any event within 60 days after receipt by the corporation
of the written request of the Indemnitee, unless with respect to
requests under Section 5.1, 5.2 or 5.5 the corporation determines
within such 60-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in Section 5.1 or 5.2, as
the case may be. Such determination shall be made in each
instance by (a) a majority vote of the directors of the
corporation consisting of persons who are not at that time parties
to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a
quorum of the outstanding shares of stock of all classes entitled
to vote for directors, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to
the action, suit or proceeding in question, (c) independent legal
counsel (who may, to the extent permitted by law, be regular legal
counsel to the corporation), or (d) a court of competent
jurisdiction.
5.7 Remedies. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in
any court of competent jurisdiction if the corporation denies such
request, in whole or in part, or if no disposition thereof is made
within the 60-day period referred to above in Section 5.6. Unless
otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of
expenses under this Article shall be on the corporation. Neither
the failure of the corporation to have made a determination prior
to the commencement of such action that indemnification is proper
in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
corporation pursuant to Section 5.6 that the Indemnitee has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses
(including attorneys' fees) incurred in connection with
successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by
the corporation.
5.8 Subsequent Amendment. No amendment, termination or
repeal of this Article or of the relevant provisions of the
General Corporation Law of Delaware or any other applicable laws
shall affect or diminish in any way the rights of any Indemnitee
to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
5.9 Other Rights. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of
any other rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office for
the corporation, and shall continue as to an Indemnitee who has
ceased to be a director or officer, and shall inure to the benefit
of the estate, heirs, executors and administrators of the
Indemnitee. Nothing contained in this Article shall be deemed to
prohibit, and the corporation is specifically authorized to enter
into, agreements with officers and directors providing
indemnification rights and procedures different from those set
forth in this Article. In addition, the corporation may, to the
extent authorized from time to time by its Board of Directors,
grant indemnification rights to other employees or agents of the
corporation or other persons serving the corporation and such
rights may be equivalent to, or greater or less than, those set
forth in this Article.
5.10 Partial Indemnification. If an Indemnitee is entitled
under any provision of this Article to indemnification by the
corporation for some or a portion of the expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount
thereof, the corporation shall nevertheless indemnify the
Indemnitee for the portion of such expenses (including attorneys'
fees), judgments, fines or amounts paid in settlement to which the
Indemnitee is entitled.
5.11 Insurance. The corporation may purchase and maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising
out of his status as such, whether or not the corporation would
have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of Delaware.
5.12 Merger or Consolidation. If the corporation is merged
into or consolidated with another corporation and the corporation
is not the surviving corporation, the surviving corporation shall
assume the obligations of the corporation under this Article with
respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring
prior to the date of such merger or consolidation.
5.13 Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify
each Indemnitee as to any expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with
any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right
of the corporation, to the fullest extent permitted by any
applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
5.14. Definitions. Terms used herein and defined in
Section 145(h) and Section 145(i) of the General Corporation Law
of Delaware shall have the respective meanings assigned to such
terms in such Section 145(h) and Section 145(i).
5.15 Subsequent Legislation. If the General Corporation Law
of Delaware is amended after adoption of this Article to expand
further the indemnification permitted to Indemnitees, then the
corporation shall indemnify such persons to the fullest extent
permitted by the General Corporation Law of Delaware, as so
amended.
ARTICLE 6 - General Provisions
6.1 Fiscal Year. Except as from time to time otherwise
designated by the Board of Directors, the fiscal year of the
corporation shall begin on the first day of July in each year and
end on the last day of June in each year.
6.2 Corporate Seal. The corporate seal shall be in
such form as shall be approved by the Board of Directors.
6.3 Waiver of Notice. Whenever any notice whatsoever
is required to be given by law, by the Certificate of
Incorporation or by these By-Laws, a waiver of such notice either
in writing signed by the person entitled to such notice or such
person's duly authorized attorney, or by telegraph, cable or any
other available method, whether before, at or after the time
stated in such waiver, or the appearance of such person or persons
at such meeting in person or by proxy, shall be deemed equivalent
to such notice.
6.4 Voting of Securities. Except as the directors may
otherwise designate, the President or Treasurer may waive notice
of, and act as, or appoint any person or persons to act as, proxy
or attorney-in-fact for this corporation (with or without power of
substitution) at, any meeting of stockholders or shareholders of
any other corporation or organization, the securities of which may
be held by this corporation.
6.5 Evidence of Authority. A certificate by the
Secretary, or an Assistant Secretary, or a temporary Secretary, as
to any action taken by the stockholders, directors, a committee or
any officer or representative of the corporation shall as to all
persons who rely on the certificate in good faith be conclusive
evidence of such action.
6.6 Certificate of Incorporation. All references in
these By-Laws to the Certificate of Incorporation shall be deemed
to refer to the Certificate of Incorporation of the corporation,
as amended and in effect from time to time.
6.7 Transactions with Interested Parties. No contract
or transaction between the corporation and one or more of the
directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in
which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of
Directors or a committee of the Board of Directors which
authorizes the contract or transaction or solely because his or
their votes are counted for such purpose, if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed
or are known to the Board of Directors or the committee, and
the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested
directors be less than a quorum;
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon,
and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee of the Board
of Directors, or the stockholders.
Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or
transaction.
6.8 Annual Statement. The Chairman or the President
shall prepare or cause to be prepared annually a full and correct
statement of the affairs of the corporation, including a balance
sheet and a financial statement of operations for the preceding
fiscal year, which shall be certified by independent certified
public accountants and distributed to the stockholders within 120
days after the close of the corporation's fiscal year and a
reasonable period of time prior to the annual meeting of
stockholders. Such annual statement shall also be submitted at
the annual meeting and shall be placed on file within 20 days
thereafter at the principal office of the corporation.
6.9 Certain Policies of the Corporation.
Notwithstanding any other provision of these By-Laws, the
corporation shall not engage in any of the following activities:
(1) hold property primarily for sale to customers in
the ordinary course of business, although the corporation may
from time to time sell its property;
(2) hold equity investments in unimproved, non-income
producing real property, except such properties as are
currently undergoing development or are presently intended to
be developed within 1 year, together with mortgage loans on
such property (other than first mortgagee development loans),
aggregating to more than 10% of the corporation's assets;
(3) issue "redeemable securities" as defined in the
Investment Company Act of 1940;
(4) invest in any real estate trust which holds
investments or engages in activities in which the corporation
would be prohibited from engaging by these By-Laws;
(5) invest in commodities or commodity future contracts
other than "financial futures" contracts intended to hedge
the corporation against losses from temporary investments;
(6) issue options or warrants to purchase shares of the
corporation unless such options or warrants:
(a) are issued to all security holders ratably;
(b) are issued as part of a financing arrangement;
(c) are issued at an exercise price at least equal
to the fair market value of the shares on the date of
grant and for consideration that has a market value at
least equal to the value of the option or warrant on the
date of grant;
(d) are issued in connection with the acquisition
of an investment;
(e) are issued as part of a stock option plan for
officers, directors and employees of the corporation or
to the Advisor or any affiliate of the Advisor;
(f) are exercisable within five years after the
date of grant; or
(g) are less than 10% of the then outstanding
shares of the corporation's voting capital stock when
aggregated with all outstanding options or warrants.
(7) invest more than 1% of its assets in real
estate contracts of sale, unless such contracts of sale
are recordable in the chain of title;
(8) engage in trading (as compared with
investment activities) or engage in the underwriting or
the agency distribution or sale of securities issued by
others;
(9) invest in junior mortgage loans unless by
appraisal or other method the Independent Directors
determine that capital invested in any such loan is
adequately secured or such loan is a financing device
entered into by the corporation to establish the
priority of its capital investment over the capital
invested by others; and
(10) issue debt securities unless the
historical debt service coverage (in the preceding
fiscal year) as adjusted for known changes is sufficient
to properly service that higher level of debt.
6.10 Severability. Any determination that any
provision of these By-Laws is for any reason
inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
6.11 Pronouns. All pronouns used in these By-
Laws shall be deemed to refer to the masculine, feminine
or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws
may be altered, amended or repealed or new by-laws may
be adopted by the affirmative vote of a majority of the
directors present at any regular or special meeting of
the Board of Directors at which a quorum is present.
7.2 By the Stockholders. Except for Sections
1.3 and 1.10 of Article I, Sections 2.1, 2.2, 2.3, 2.4.,
2.5., 2.6, 2.8 and 2.20 of Article II, Sections 6.8 and
6.9 of Article VI and this Section 7.2 of this Article
VII, these By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of
the holders of a majority of the shares of the capital
stock of the corporation issued and outstanding and
entitled to vote at any regular meeting of stockholders,
or at any special meeting of stockholders, provided
notice of such alteration, amendment, repeal or adoption
of new by-laws shall have been stated in the notice of
such special meeting.
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, thereunto duly authorized.
COPLEY PROPERTIES, INC.
(Registrant)
November 9, 1995 /s/ Peter P. Twining
----------------------
Peter P. Twining
Vice President and Secretary
November 9, 1995 /s/ Daniel C. Mackowiak
-----------------------
Daniel C. Mackowiak
Treasurer and Principal Financial
and Chief Accounting Officer