Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
HERITAGE PROPERTY INVESTMENT TRUST, INC.
ARTICLE I - STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of Stockholders shall be held
within the thirty-one day period commencing with the 1st day of May each year,
at the principal office of the Corporation in Massachusetts at ten o'clock a.m.
unless a different hour, or place is fixed by the Board of Directors. Whenever
the Board of Directors shall fail to set such place, the meeting shall be held
at the principal office of the Corporation. If no annual meeting has been held
on the date fixed as above provided, a special meeting in lieu thereof may be
held, and such special meeting shall have, for the purposes of these Bylaws or
otherwise, all the force and effect of an annual meeting.
SECTION 2. MATTERS TO BE CONSIDERED AT ANNUAL MEETING. At an annual meeting
of Stockholders, other than the election of directors as provided in Article II
hereof, only such business shall be conducted, and only such proposals shall be
acted upon, as shall have been properly brought before the annual meeting (a)
by, or at the direction of, a majority of the Board of Directors (unless at the
time of such action a majority of the members of the Board of Directors are
Trust Directors (as defined in Section 7 of Article VII hereof), in which case
the affirmative vote of a majority of the Directors including at least one
Outside Director (as defined in Section 7 of Article VII hereof) then in office
shall be required) or (b) by any Stockholder of the Corporation who complies
with the notice procedures set forth in this Section 2. For a proposal to be
properly brought before an annual meeting by a Stockholder, the Stockholder must
have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, a Stockholder's notice must be delivered to, or mailed and
received at, the principal executive offices of the Corporation not less than 90
days nor more than 150 days prior to the scheduled annual meeting, regardless of
any postponements, deferrals or adjournments of that meeting to a later date;
PROVIDED, HOWEVER, that if less than 70 days' notice or prior public disclosure
of the date of the scheduled annual meeting is given or made, notice by a
Stockholder to be timely must be so delivered or received not later than the
later of (i) 90 days before the anniversary of the date of the previous year's
annual meeting, or (ii) the close of business on the 15th day following the day
on which such notice of the date of the scheduled annual meeting was mailed. A
Stockholder's notice must contain (A) the name and address of the Stockholder
delivering the notice, (B) a statement with respect to the amount of the
Corporation's stock beneficially and/or legally owned by such stockholder, (C)
the nature of any such beneficial ownership of such stock, the beneficial
ownership of any such stock legally held by such Stockholder but beneficially
owned by one or more others, and the length of time for which all such stock has
been beneficially and/or legally owned by such Stockholder, and/or (D) a
description of the proposed business to be brought before the meeting, as the
case may be, and the reason for conducting such business at the meeting, and any
material interest in such business of such Stockholder and the beneficial owner,
if any, on whose behalf the proposal is made. The Chairman of the meeting shall
have the discretion to declare to the meeting that any business proposed by a
Stockholder to be considered at the meeting is out of order and that such
business shall not be transacted at the meeting if (1) the
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Chairman concludes that the matter has been proposed in a manner inconsistent
with this Section 2 or (2) the Chairman concludes that the subject matter of the
proposed business is inappropriate for consideration by the Stockholders at the
meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, Directors and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
SECTION 3. MATTERS TO BE CONSIDERED AT ANNUAL MEETINGS AND SPECIAL
MEETINGS. The purpose of each annual meeting of the Stockholders is to elect
Directors of the Corporation and to transact such other business as may be
properly brought forth at such annual meeting in accordance with Section 2
above. Only those matters set forth in the call of a special meeting, as set
forth in Section 4 below, may be considered or acted upon at such special
meeting, unless otherwise provided by law.
SECTION 4. NOTICE OF MEETINGS; ADJOURNMENTS. A written notice of all annual
meetings of Stockholders stating the hour, date and place of such annual
meetings and, to the extent required by the Maryland General Corporation Law,
the purpose for which the meeting has been called shall be given by the
Secretary or an Assistant Secretary (or other person authorized by these Bylaws
or by law) not less than 10 days nor more than 90 days before the meeting,
unless any provisions of the Maryland General Corporation Law prescribe a
different period of notice, to each Stockholder entitled to vote thereat or to
each Stockholder who, under the Charter, as amended from time to time or under
these Bylaws, is entitled to such notice, by delivering such notice to him or by
mailing it, postage prepaid, addressed to such Stockholder at the address of
such Stockholder as it appears on the Corporation's stock transfer books or by
any other means permitted by Maryland law. Such notice shall be deemed to be
delivered when hand delivered to such address or if mailed, when deposited in
the mail so addressed, with postage prepaid.
Subject to the provisions of Section 12 of this Article I, notice of all
special meetings of Stockholders shall be given in the same manner as provided
for annual meetings of the Stockholders, except that the written notice of all
special meetings shall state the purpose or purposes for which the meeting has
been called.
Notice of an annual or special meeting of Stockholders need not be given to
a Stockholder if a written waiver of notice is executed before or after such
meeting by such Stockholder, or if such Stockholder attends such meeting in
person or by proxy. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of Stockholders need be specified in any
written waiver of notice.
Any previously scheduled meeting of the Stockholders may be postponed, and
any special meeting of the Stockholders may be canceled, by resolution of the
Board of Directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders. When any annual or special meeting
of Stockholders is adjourned to another hour, date or place, notice need not be
given of the adjourned meeting other than an announcement at the meeting at
which the adjournment is taken of
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the hour, date and place to which the meeting is adjourned; PROVIDED, HOWEVER,
that if the adjournment is to a date more than 120 days after the original
record date, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given as in the case
of the original meeting to each Stockholder of record entitled to vote thereat
on notice thereof.
SECTION 5. QUORUM. Except as otherwise provided by law, Stockholders
entitled to cast a majority of all the votes entitled to be cast at the meeting,
represented in person or by proxy, shall constitute a quorum at any annual or
special meeting of Stockholders; but if less than a quorum is present at a
meeting, Stockholders present or the presiding officer may adjourn the meeting
from time to time, and the meeting may be held as adjourned without further
notice, except as provided in Section 4 of this Article I. At such adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the meeting as originally noticed. The Stockholders
present at a duly constituted meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Stockholders to leave less
than a quorum.
SECTION 6. VOTING AND PROXIES. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the Corporation, unless otherwise provided by law or by the Charter.
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after eleven months from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting before being voted. Except as otherwise limited therein, proxies shall
entitle the persons authorized thereby to vote at any adjournment of such
meeting, but they shall not be valid after final adjournment of such meeting. A
proxy purporting to be executed by or on behalf of a Stockholder shall be deemed
valid unless challenged at or prior to its exercise, and the burden of proving
invalidity shall rest on the challenger.
SECTION 7. ACTION AT MEETING. When a quorum is present, any matter before
any annual or special meeting of Stockholders shall be decided by vote of the
holders of a majority of the shares of stock voting on such matter, except where
a larger vote is required by law, by the Charter or by these Bylaws. Any
election of directors by Stockholders shall be determined by a plurality of the
votes cast, except where a larger vote is required by law, by the Charter or by
these Bylaws. The Corporation shall not directly or indirectly vote any shares
of its own stock except as to shares which it holds in a fiduciary capacity or
except as otherwise permitted by law. Except as provided in the Charter, Excess
Shares, as defined in Section 7 of Article VII hereof, are not voting shares. An
abstention shall not be deemed a vote cast.
SECTION 8. INSPECTORS OF ELECTION. The Board of Directors by resolutions
may appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives, to act at a
meeting of stockholders and make a written report thereof. One or more persons
may be designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate has been
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appointed by the Board of Directors to act or is able to act at a meeting of
Stockholders, the Chairman of the meeting may appoint one or more inspectors to
act at the meeting. Each inspector, before discharging his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law. The Chairman of the meeting shall fix
and announce at the meeting the date and time of the opening and the closing of
the polls for each matter upon which the stockholders will vote at a meeting.
SECTION 9. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary shall make,
or shall cause to be made, at least ten (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 of stock 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 ten (10) days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof and may be inspected by any
Stockholder who is present.
SECTION 10. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Unless otherwise
provided in the Charter, any action required by law to be taken at any annual or
special meeting of Stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such Stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by all
of the holders of outstanding shares of stock entitled to vote thereon and shall
be delivered to the Corporation by delivery to its registered office in the
State of Maryland, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of
Stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each Stockholder who
signs the consent and no written consent shall be effective to take the
corporate action referred to therein unless, within sixty days of the earliest
dated consent delivered in the manner required by this Section 10 of this
Article I to the Corporation, written consents and, to the extent applicable,
waivers signed by each applicable Stockholder are delivered to the Corporation
by delivery to its registered office in the State of Maryland, its principal
place of business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of Stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
SECTION 11. PRESIDING OFFICER. The presiding officer at all annual or
special meetings of Stockholders shall have the power, among other things, to
adjourn such meeting at any time and from time to time, subject to Sections 4
and 5 of this Article I. The order of business and all other matters of
procedure at any meeting of the Stockholders shall be determined by the
presiding officer.
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SECTION 12. STOCKHOLDER ACTION. Except as otherwise required by law and
subject to the rights of the holders of any shares or series of stock having a
preference over the common stock as to dividends, or upon liquidation, special
meetings of the holders of Voting Stock (as defined in the Charter) may be
called only by (i) the Board of Directors pursuant to a resolution approved by
the affirmative vote of a majority of the Directors then in office (unless at
the time of such action the majority of the members of the Board of Directors
are Trust Directors, in which case the affirmative vote of a majority of the
Directors including at least one Outside Director then in office shall be
required); PROVIDED, HOWEVER, that, if at the time of such call there is an
Interested Shareholder (as defined in the Charter hereof), any such call shall
require the affirmative vote of a majority of the Continuing Directors (as
defined in Section 7 of the Charter) then in office, (ii) the Chairman of the
Board of Directors, if one is elected, or (iii) the President of the
Corporation. In addition, special meetings of the holders of Voting Stock shall
be called by the Secretary of the Corporation upon the written request of the
holders of Voting Stock entitled to cast not less than a majority of all votes
entitled to be cast at such meeting (such request shall state the purpose or
purposes of such meeting and the matters proposed to be acted on thereat). Only
those matters set forth in the notice of the special meeting may be considered
or acted upon at such special meeting, unless otherwise provided in these
Bylaws. Advance notice of any matters which any holder of Voting Stock intends
to propose for action at an annual meeting shall be given in the manner provided
in Section 2 of this Article I.
SECTION 13. CONTROL SHARE STATUTE. Notwithstanding any other provision of
the Charter or these Bylaws, Title 3, Subtitle 7 of the Corporations and
Associations Article of the Annotated Code of Maryland (or any successor
statute) shall not apply to any acquisition by any person of shares of stock of
the Corporation. This section may be repealed, in whole or in part, at any time,
whether before or after an acquisition of control shares and, upon such repeal,
may, to the extent provided by any successor bylaw, apply to any prior or
subsequent control share acquisition.
ARTICLE II - DIRECTORS
SECTION 1. POWERS. All of the powers of the Corporation shall be exercised
by or under the direction of the Board of Directors except as otherwise provided
by the Charter or required by law.
SECTION 2. NUMBER, TERMS AND INDEPENDENT DIRECTORS. The number of Directors
of the Corporation shall be eleven and, subject to the Stockholders Agreement
(as defined below), may be increased or decreased (but not below three) by a
resolution duly adopted from time to time by the Board of Directors; PROVIDED,
HOWEVER, that if at the time of such action the majority of the members of the
Board of Directors are Trust Directors, such action shall require a majority
vote of the Directors including at least one Outside Director then in office.
The Directors shall be elected at the annual meeting of the Stockholders and,
subject to Section 3 below, each Director shall be elected to serve for a term
as provided in Section 3 of this Article II and until his successor shall be
elected and shall qualify or until his earlier resignation or removal; PROVIDED
that in the
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event of failure to hold such meeting or to hold such election at such meeting,
such election may be held at any special meeting of the Stockholders called for
that purpose.
SECTION 3. CLASSIFIED BOARD. The Board of Directors shall be divided into
three classes of directors, such classes to be as nearly equal in number of
directors as possible, having staggered three-years terms of office, the term of
office of the directors of the first such class to expire as of the annual
meeting of the Stockholders following the 2002 fiscal year of the Corporation,
those of the second class to expire as of the annual meeting of the Stockholders
following the 2003 fiscal year of the Corporation, and those of the third class
as of the annual meeting of the Stockholders following the 2004 fiscal year of
the Corporation, such that at each annual meeting of Stockholders after the date
hereof, nominees will stand for election to succeed those directors whose terms
are to expire as of such meeting. At each annual meeting of the Stockholders
thereafter, the successors to the class of directors whose term expires at such
meeting shall be elected to hold office for a term expiring at the annual
meeting of Stockholders held in the third year following the year of their
election and until their successors are duly elected and qualify.
SECTION 4. DIRECTOR NOMINATIONS. Nomination of candidates for election as
Directors of the Corporation at any annual meeting of Stockholders may be made
(a) by, or at the direction of, a majority of the Board of Directors (unless at
the time of such action the majority of the members of the Board of Directors
are Trust Directors, in which case the affirmative vote of a majority of the
Directors including at least one Outside Director then in office shall be
required) provided that, a person meeting the requirements of an Outside
Director, as that term is defined in the Charter, shall be nominated by, or at
the direction of, the Outside Directors, or (b) by any Stockholder entitled to
vote at such annual meeting. Only persons nominated in accordance with the
procedures set forth in this Section 4 shall be eligible for election as
Directors at an annual meeting of Stockholders.
Nominations, other than those made by, or at the direction of, the Board of
Directors (and by the Outside Directors, if required), shall be made pursuant to
timely notice in writing to the Secretary of the Corporation as set forth in
this Section 4. To be timely, a Stockholder's notice shall be delivered to, or
mailed and received at, the principal executive office of the Corporation not
less than 90 days nor more than 150 days prior to the date of the scheduled
annual meeting, regardless of postponements, deferrals, or adjournments of that
meeting to a later date; provided, however, that if less than 70 days' notice or
prior public disclosure of the date of the scheduled annual meeting is given or
made, notice by the Stockholder to be timely must be so delivered or received
not later than (i) 90 days prior to the anniversary of the date of the previous
year's annual meeting or (ii) the close of business on the 10th day following
the earlier of (a) the day on which such notice of the date of the scheduled
annual meeting was mailed or (b) the day on which such public disclosure was
made. Such Stockholder's notice shall set forth (a) as to each person whom the
Stockholder proposes to nominate for election or re-election as a Director (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number of
shares of the Corporation's capital stock which are beneficially owned by such
person on the date of such Stockholder notice, and (iv) any other information
relating to such
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person that is required to be disclosed in solicitations of proxies with respect
to nominees for election as directors, or is otherwise required, pursuant to
Rule 14a-8 under the Securities Act of 1934, as amended (the "EXCHANGE ACT")
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected, and (b) as to the
Stockholder giving the notice (i) the name and address, as they appear on the
Corporation's stock transfer books, of such Stockholder and of the beneficial
owners (if any) of the stock registered in such Stockholder's name and the name
and address of other Stockholders known by such Stockholder to be supporting
such nominees, and (ii) the class and number of shares of the Corporation's
capital stock which are beneficially owned by such Stockholder and beneficial
owners (if any) on the date of such Stockholder notice and by any other
Stockholders known by such Stockholder to be supporting such nominees on the
date of such Stockholder notice. At the request of the Board of Directors, any
person nominated by, or at the direction of, the Board of Directors for election
as a Director at an annual meeting shall furnish to the Secretary of the
Corporation that information required to be set forth in a Stockholder's notice
of nomination which pertains to the nominee. The Board of Directors may reject
any nomination by a Stockholder not timely made in accordance with the
requirements of this Section 4.
No person shall be elected by the Stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 4. Election of Directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the annual meeting in accordance with the procedures set forth in this Section 4
shall be provided for use at the annual meeting.
SECTION 5. QUALIFICATION. No Director need be a Stockholder of the
Corporation. Unless waived by a vote of the Board of Directors, no individual
may serve as a Director of the Corporation if he has reached the age of 70 years
at the time of election.
SECTION 6. VACANCIES. Any vacancy occurring on the Board of Directors,
including any vacancy created by reason of an increase in the number of
Directors, may be filled in the manner provided in the Charter, subject to the
Amended and Restated Stockholders Agreement, dated as of March [___], 2002, by
and among the Corporation, Net Realty Holding Trust and The Prudential Insurance
Company of America (as amended, the "STOCKHOLDERS Agreement").
SECTION 7. REMOVAL. Any Director may be removed from office in the manner
provided in the Charter, subject to the Stockholders Agreement.
SECTION 8. RESIGNATION. A Director may resign at any time by giving written
notice to the Chairman of the Board, if one is elected, the President or the
Secretary. A resignation shall be effective upon receipt, unless the resignation
otherwise provides.
SECTION 9. REGULAR MEETINGS. The regular annual meeting of the Board of
Directors shall be held, without other notice than this Bylaw, on the same date
and at the
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same place as the annual meeting of Stockholders following the close of such
meeting of Stockholders. Other regular meetings of the Board of Directors may be
held at such hour, date and place as the Board of Directors may by resolution
from time to time determine without other notice than such resolution.
SECTION 10. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of a majority of
the Directors (unless at the time of such meeting the majority of the Board
of Directors are Trust Directors, in which case the affirmative vote of a
majority of the Directors including at least one Outside Director then in
office shall be required), the Chairman of the Board, if one is elected, or
the President. The person calling any such special meeting of the Board of
Directors may fix the hour, date and place thereof.
SECTION 11. NOTICE OF MEETINGS. Notice of the hour, date and place of all
special meetings of the Board of Directors shall be given to each Director by
the Secretary or an Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chairman of the Board, if one is
elected, or the President or such other officer designated by the Chairman of
the Board, if one is elected, or the President. Notice of any special meeting of
the Board of Directors shall be given to each Director in person or by
telephone, electronic mail, facsimile transmission or by telegram sent to his
business or home address at least 24 hours in advance of the meeting, or by
written notice mailed to his business or home address at least 48 hours in
advance of the meeting. Such notice shall be deemed to be delivered when hand
delivered to such address, read to such Director by telephone, deposited in the
mail so addressed, with postage thereon prepaid if mailed, upon transmission of
the message by electronic mail, upon completion of transmission of a facsimile
message and receipt of a completed answer back indicating receipt or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for more than 30 days, notice of the adjourned meeting shall be given
as in the case of an original meeting. It shall not be necessary to give any
notice of the hour, date or place of any meeting adjourned for 30 days or less
or of the business to be transacted at such meeting, other than an announcement
at the meeting at which such adjournment is taken of the hour, date and place to
which the meeting is adjourned.
A written waiver of notice executed before or after a meeting by a Director
and filed with the records of the meeting shall be deemed to be equivalent to
notice of the meeting. The attendance of a Director at a meeting shall
constitute a waiver of notice of such meeting. Except as otherwise required by
law, by the Charter or by these Bylaws, neither the business to be transacted
at, nor the purpose of, any meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting.
SECTION 12. QUORUM. At any meeting of the Board of Directors, a majority of
the Directors then in office (unless at the time of such meeting the majority of
the members of the Board of Directors are Trust Directors, in which case a
majority of the Directors including at least one Outside Director then in
office) shall constitute a quorum for the transaction of business, but if less
than a quorum is present at a meeting, a majority of the Directors present
(unless at the time of such action the majority of the
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members of the Board of Directors are Trust Directors, in which case the
affirmative vote of a majority of the Directors including at least one Outside
Director then in office shall be required) may adjourn the meeting from time to
time, and the meeting may be held as adjourned without further notice, except as
provided in Section 11 of this Article II. Any business which might have been
transacted at the meeting as originally noticed may be transacted at such
adjourned meeting at which a quorum is present.
SECTION 13. ACTION AT MEETING. At any meeting of the Board of Directors at
which a quorum is present and subject to Section 7 of Article VIII of the
Charter, a majority of the Directors present (unless, at the time of such action
the majority of the members of the Board of Directors are Trust Directors, in
which case the affirmative vote of a majority of the Directors including at
least one Outside Director then in office shall be required) may take any action
on behalf of the Board of Directors, unless otherwise required by law, by the
Charter, these Bylaws or the Stockholders Agreement.
SECTION 14. ACTION BY CONSENT. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent thereto in writing. Such written
consent shall be filed with the records of the proceedings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
SECTION 15. MANNER OF PARTICIPATION. Members of the Board of Directors or
of committees elected by the Board pursuant to Section 16 of this Article II may
participate in meetings of the Board or of such committees by means of
conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other at the same time, and
participation in a meeting in accordance herewith shall constitute presence in
person at such meeting for purposes of these Bylaws.
SECTION 16. COMMITTEES. The Board of Directors, by the affirmative vote of
a majority of the Directors then in office (unless at the time of such action
the majority of the members of the Board of Directors are Trust Directors, in
which case the affirmative vote of a majority of the Directors including at
least one Outside Director then in office shall be required), may elect from its
number Directors to serve on one or more committees, including an Audit
Committee, and may delegate thereto some or all of its powers except those which
by law, by the Charter or by these Bylaws, may not be delegated. Except as the
Board of Directors may otherwise determine or as required by law, by the Charter
or these Bylaws, any such committee may make rules for conduct of its business,
but unless otherwise provided by the Board of Directors or in such rules, its
business shall be conducted so far as possible in the same manner as is provided
by the Charter and by these Bylaws for the Board of Directors. The Board of
Directors may abolish any such committee, other than the Audit Committee, at any
time. Any committee to which the Board of Directors delegates any of its powers
or duties shall keep records of its meetings and shall report its action to the
Board of Directors.
The Board of Directors shall have power to rescind any action of any
committee, other than the Audit Committee, but no such rescission shall have
retroactive effect. With the approval of the Board of Directors, the Chief
Executive Officer may appoint
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such other committees consisting of such Directors as the Chief Executive
Officer shall select. Any recommendations of such committees appointed by the
Chief Executive Officer shall be submitted to the Board of Directors.
SECTION 17. COMPENSATION OF DIRECTORS. Directors shall receive compensation
for their services as shall be determined by a majority of the Board of
Directors (unless, at the time of such action the majority of the members of the
Board of Directors are Trust Directors, in which case the affirmative vote of a
majority of the Directors including at least one Outside Director then in office
shall be required) PROVIDED that (i) Directors who are serving the Corporation
as officers or employees and who receive compensation for their services as such
("EMPLOYEE DIRECTORS") and (ii) Trust Directors shall not receive any salary or
other compensation for their services as Directors of the Corporation PROVIDED,
however, that such Employee Directors and Trust Directors may be paid their
reasonable expenses incurred as a Director.
ARTICLE III - OFFICERS
SECTION 1. ENUMERATION. The officers of the Corporation shall consist of a
President, a Chief Executive Officer, a Treasurer, a Secretary and such other
officers, including without limitation a Chairman of the Board, one or more Vice
Presidents (including Executive Vice Presidents or Senior Vice Presidents),
Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries, as
the Board of Directors may determine.
SECTION 2. ELECTION AND APPOINTMENT. At the regular annual meeting of the
Board following the annual meeting of Stockholders, the Board of Directors shall
elect the President, the Chief Executive Officer, the Treasurer and the
Secretary. Other officers may be appointed by the Board of Directors at such
regular annual meeting of the Board of Directors or at any other regular or
special meeting or appointed by the Chief Executive Officer.
SECTION 3. QUALIFICATION. No officer need be a Stockholder or a Director;
PROVIDED, HOWEVER, that the Chief Executive Officer shall be a Director. Any
person may occupy more than one office of the Corporation at any time except the
offices of President and Vice President. Any officer may be required by the
Board of Directors to give bond, at the Corporation's expense, for the faithful
performance of his duties in such amount and with such sureties as the Board of
Directors may determine.
SECTION 4. TENURE. Except as otherwise provided by the Charter or by these
Bylaws, each of the officers of the Corporation shall hold office until the
regular annual meeting of the Board of Directors following the next annual
meeting of Stockholders and until his successor is elected and qualified or
until his earlier resignation or removal. Election or appointment of an officer,
employee or agent shall not of itself create contract rights. The Board of
Directors may, however, authorize the Corporation to enter into an employment
contract with any officer in accordance with law, but no such contract right
shall prohibit the right of the Board of Directors to remove any officer at any
time in accordance with Section 6 of this Article III.
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SECTION 5. RESIGNATION. Any officer may resign by delivering his written
resignation to the Corporation addressed to the President or the Secretary, and
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.
SECTION 6. REMOVAL. If the Board of Directors in its judgment finds that
the best interests of the Corporation will be served, the Board of Directors may
remove any officer by the affirmative vote of a majority of the Directors then
in office (unless at the time of such action the majority of the members of the
Board of Directors are Trust Directors, in which case the affirmative vote of a
majority of the Directors including at least one Outside Director then in office
shall be required). Such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
SECTION 7. ABSENCE OR DISABILITY. In the event of the absence or disability
of any officer, the Board of Directors may designate another officer to act
temporarily in place of such absent or disabled officer.
SECTION 8. VACANCIES. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
SECTION 9. CHIEF EXECUTIVE OFFICER. The President shall be the Chief
Executive Officer, unless the Board of Directors shall elect another officer to
be the Chief Executive Officer. The Chief Executive Officer shall, subject to
the direction of the Board of Directors, have general supervision and control of
the Corporation's business and shall preside, when present, at all meetings of
the Stockholders.
SECTION 10. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside
at all meetings of the Board of Directors. If the Chairman of the Board is
absent, the President shall preside at meetings of the Board of Directors. If
the Chairman of the Board is not the Chief Executive Officer and in the absence
of the Chief Executive Officer, the Chairman of the Board shall preside, when
present, at all meetings of the Stockholders. The Chairman of the Board shall
have such other powers and shall perform such other duties as the Board of
Directors may from time to time designate. If the Chairman of the Board is not
the Chief Executive Officer, he shall also have such powers and perform such
duties as the Chief Executive Officer may from time to time designate.
SECTION 11. PRESIDENT. In the absence of the Chairman of the Board, the
President shall preside, when present, at all meetings of the Board of
Directors. If the President is not the Chief Executive Officer or Chairman of
the Board and in the absence of such persons, the President shall preside, when
present, at all meetings of the Stockholders. If the President is not the Chief
Executive Officer, he shall have such powers and perform such duties as the
Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 12. VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS. Any Vice
President (including any Executive Vice President or Senior Vice President) and
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Assistant Vice President shall have such powers and shall perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 13. TREASURER AND ASSISTANT TREASURERS. The Treasurer shall,
subject to the direction of the Board of Directors and except as the Board of
Directors or the Chief Executive Officer may otherwise provide, have general
charge of the financial affairs of the Corporation and shall cause to be kept
accurate books of account. He shall have custody of all funds, securities, and
valuable documents of the Corporation. He shall have such other duties and
powers as may be designated from time to time by the Board of Directors or the
Chief Executive Officer. The office of the Treasurer shall be deemed to be the
office of the Chief Financial Officer of the Corporation whenever the signature
of the Chief Financial Officer is required on any document or instrument, by the
laws of the United States or any state, or elsewhere in the Bylaws, the
Treasurer shall have authority to affix his signature in such capacity.
The office of the Vice President of Finance and Accounting shall be deemed
an Assistant Treasurer of the Corporation whenever the signature of an Assistant
Treasurer is required on any document or instrument, by the laws of the United
States or any state, or elsewhere in these Bylaws, and the Vice President of
Finance and Accounting shall have authority to affix his signature in such
capacity. Any Treasurer or Assistant Treasurer shall have such powers and
perform such duties as the Board of Directors or the Chief Executive Officer may
from time to time designate.
SECTION 14. SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall record
all the proceedings of the meetings of the Stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his absence from any such meeting, a temporary secretary chosen at the meeting
shall record the proceedings thereof. The Secretary shall have charge of the
stock ledger (which may, however, be kept by any transfer or other agent of the
Corporation). He shall have custody of the seal of the Corporation, and he, or
an Assistant Secretary, shall have authority to affix it to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature or
that of an Assistant Secretary. He shall have such other duties and powers as
may be designated from time to time by the Board of Directors or the Chief
Executive Officer. In the absence of the Secretary, any Assistant Secretary may
perform his duties and responsibilities.
Any Assistant Secretary shall have such powers and perform such duties as
the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION 15. SALARIES. The salaries of the officers shall be fixed from time
to time by the Board (or an appropriately designated committee of the Board) and
no officer shall be prevented from receiving such salary by reason of the fact
that he is also a Director of the Company.
SECTION 16. OTHER POWERS AND DUTIES. Subject to these Bylaws and to such
limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their
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respective offices, as well as such powers and duties as from time to time may
be conferred by the Board of Directors or the Chief Executive Officer.
ARTICLE IV - STOCK
SECTION 1. CERTIFICATES OF STOCK. Unless otherwise provided by the Board of
Directors or by law, each Stockholder shall be entitled to a certificate of the
stock of the Corporation in such form as may from time to time be prescribed by
the Board of Directors. Such certificate shall bear the seal of the Corporation,
if one has been adopted, and shall be signed by the Chairman of the Board of
Directors, President or a Vice President and countersigned by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary. The seal of
the Corporation, if one has been adopted, and any and all signatures on the
certificate may be a facsimile, including those of any transfer agent or
registrar. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on such certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the time of its issue. Every
certificate for shares of stock which are subject to any restriction on transfer
and every certificate issued when the Corporation is authorized to issue more
than one class or series of stock shall contain such legend with respect thereto
as is required by law.
SECTION 2. TRANSFERS. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of stock may be transferred
only on the books of the Corporation by the surrender to the Corporation or its
transfer agent of the certificate therefor properly endorsed or accompanied by a
written assignment or power of attorney properly executed, with transfer stamps
(if necessary) affixed, and with such proof of the authenticity of signature as
the Corporation or its transfer agent may reasonably require.
SECTION 3. RECORD HOLDERS. Except as may otherwise be required by law, by
the Charter or by these Bylaws, 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
thereto, 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 Bylaws.
It shall be the duty of each Stockholder to notify the Corporation or its
transfer agent of his post office address and any changes thereto.
SECTION 4. RECORD DATE. In order that the Corporation may determine the
Stockholders entitled to receive notice of or to vote at any meeting of
Stockholders or any adjournments thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than 90 days nor less than 10
days before the date of such meeting, nor more than 90 days prior to any other
action. In such case, only Stockholders of record on such record date shall be
so
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entitled, notwithstanding any transfer of stock on the stock transfer books of
the Corporation after the record date.
If no record date is fixed: (a) the record date for determining
Stockholders entitled to receive notice of or to vote at a meeting of
Stockholders shall be the later of (i) the close of business on the day on which
notice is mailed or (ii) the 30th day before the meeting; and (b) the record
date for determining Stockholders entitled to receive payment of a dividend or
an allotment of any rights shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
SECTION 5. REPLACEMENT OF CERTIFICATES. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof upon such terms as the Corporation or its transfer
agent may prescribe.
SECTION 6. TRANSFER AGENTS AND REGISTRARS. The Corporation may serve as the
transfer agent and registrar of the shares of stock, or the Board of Directors
may, in its discretion, appoint one or more responsible banks, trust companies
or other entity as the Board of Directors may deem advisable, from time to time,
to act as transfer agents and registrars of shares of stock. No certificate for
shares of stock shall be valid until countersigned by the transfer agent and
registered by the registrar.
SECTION 7. STOCKHOLDERS' ADDRESSES. Every Stockholder or transferee shall
furnish the Secretary or a transfer agent with the address to which notice of
meetings and all other notices may be served upon or mailed to such Stockholder
or transferee, and in default thereof, such Stockholder or transferee shall not
be entitled to service or mailing of any such notice.
SECTION 8. REPURCHASE OF SHARES OF STOCK. The Corporation may purchase its
shares of stock and invest its assets in its own shares of stock, provided that
in each case the consent of the Board of Directors shall have been obtained.
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ARTICLE V - INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall, to the maximum
extent permitted by the Maryland General Corporation Law in effect from time to
time, indemnify, and pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to, (a) any individual who is a present or former
Stockholder, (b) any individual who is a present or former director or officer
of the Corporation or (c) any individual who, while a director or officer of the
Corporation and at the request of the Corporation, serves or has served as a
director, officer, partner or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise from and against
any claim or liability to which such person may become subject or which such
person may incur by reason of his status as a present or former stockholder,
director or officer of the Corporation (an "INDEMNITEE"). The Corporation shall,
to the maximum extent permitted by the Maryland General Corporation Law in
effect from time to time, provide such indemnification and advancement of
expenses to a person who served a predecessor of the Corporation in any of the
capacities described in (b) or (c) above (and such person shall also be deemed
to be an "Indemnitee").
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation shall, to the maximum extent permitted by the Maryland General
Corporation Law in effect from time to time, provide such indemnification and
advancement of expenses, with the approval of the Board of Directors, to any
employee or agent of the Corporation or a predecessor of the Corporation (and
such person shall also be deemed to be an "Indemnitee").
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under this Article
V is not paid in full by the Corporation within sixty days after a written claim
has been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be twenty
days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If the Indemnitee is
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the Indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In any suit brought by an Indemnitee who is
a present or former director to enforce a right to indemnification hereunder
(but not in a suit brought by the Indemnitee to enforce a right to an
advancement of expenses), it shall be a defense that such Indemnitee has not met
the applicable standard of conduct set forth in the Maryland General Corporation
Law. In addition, in any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that the Indemnitee
who is a present or former director has not met the applicable standard of
conduct set forth in the Maryland General Corporation Law. Neither the failure
of the Corporation (including its Board of Directors,
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independent legal counsel, or Stockholders) to have made a determination prior
to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Maryland General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or Stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee
has not met the applicable standard of conduct. In any suit brought by the
Indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article V or otherwise shall be on the Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to
advancement of expenses conferred in this Article V shall not be exclusive of
any other right which any person may have or hereafter acquire under these
Bylaws, the Charter or any statute, agreement, vote of Stockholders or
disinterested directors or otherwise.
SECTION 5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or agent of the
Corporation or any director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the Maryland
General Corporation Law.
ARTICLE VI - MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall end on
December 31 of each year or on such other date as may be fixed by the Board of
Directors.
SECTION 2. SEAL. The seal of the Corporation shall be in the form of a
circle and shall have inscribed thereon the name of the Corporation and the year
of its organization. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced.
SECTION 3. EXECUTION OF INSTRUMENTS. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chairman of the Board, if one is
elected, the Chief Executive Officer the President or the Treasurer or any other
officer, employee or agent of the Corporation as the Board of Directors may
authorize.
SECTION 4. VOTING OF SECURITIES. Unless the Board of Directors otherwise
provides, the Chairman of the Board, if one is elected, the Chief Executive
Officer, the President or the Treasurer may waive notice of and act on behalf of
this Corporation, or appoint another person or persons to act as proxy or
attorney in fact for this Corporation with or without discretionary power and/or
power of substitutions at any meeting of Stockholders or Stockholders of any
other corporation or organization, any of whose securities are held by this
Corporation.
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SECTION 5. RESIDENT AGENT. The Board of Directors may appoint a resident
agent upon whom legal process may be served in any action or proceeding against
the Corporation.
SECTION 6. CORPORATE RECORDS. The original or attested copies of the
Charter, Bylaws and records of all meetings of the incorporators, Stockholders
and the Board of Directors and the stock transfer books, which shall contain the
names of all Stockholders, their record addresses and the amount of stock held
by each, may be kept outside the State of Maryland and shall be kept at the
principal office of the Corporation, at the office of its counsel or at an
office of its transfer agent.
SECTION 7. DEFINITIONS. As used in these Bylaws, the terms "Continuing
Director", "Excess Shares", "Interested Shareholder", "Outside Director",
"Stockholders", "Trust", "Trust Director" and "Voting Stock" shall have the same
respective meanings assigned to them in the Charter. Any determination of
beneficial ownership of securities under these Bylaws shall be made in the
manner specified in the Charter.
SECTION 8. AMENDMENTS. These Bylaws may be altered, amended or repealed, or
new Bylaws may be adopted by the Board of Directors in the manner provided in
the Charter; PROVIDED that, neither the amendment nor repeal of Article V, nor
the adoption or amendment of any other provision of the Bylaws or Charter of the
Corporation inconsistent with Article V, shall apply to or affect in any respect
the applicability of Article V with respect to any act or failure to act which
occurred prior to such amendment, repeal or adoption.
SECTION 9. OFFICES. The address of the principal office within the State of
Maryland shall be c/o CSC-Lawyers Incorporating Service Company, 11 East Chase
Street, Baltimore City, Maryland 21202 or at such other location as may be
established by the Board of Directors. The Corporation may also have offices at
such other places both within and without the State of Maryland as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
SECTION 10. CONFLICT OF INTEREST. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its 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 or committee thereof which authorized
the contract or transaction, or solely because his or their votes are counted
for such purpose, if: (i) 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 vote of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders of
the Corporation, and the contract or transaction as specifically approved in
good faith by vote of such stockholders; or (iii) the contract or transaction is
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fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee 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.