Ex-3.02
AMENDED AND RESTATED
BYLAWS
OF
UNITED DOMINION REALTY TRUST, INC.
FEBRUARY 13, 2004
TABLE OF CONTENTS
ARTICLE I OFFICES............................................................................ 1
Section 1.1 Principal Office in Maryland and Resident Agent............................... 1
Section 1.2 Other Offices................................................................. 1
ARTICLE II STOCKHOLDERS' MEETINGS............................................................. 1
Section 2.1 Place of Meetings............................................................. 1
Section 2.2 Annual Meetings............................................................... 2
Section 2.3 Special Meetings.............................................................. 2
Section 2.4 Notice of Meetings............................................................ 2
Section 2.5 Record Date................................................................... 3
Section 2.6 Quorum and Voting............................................................. 4
Section 2.7 Right to Vote; Proxies........................................................ 5
Section 2.8 Voting of Shares by Certain Holders........................................... 5
Section 2.9 Inspectors.................................................................... 6
Section 2.10 Action Without Meetings....................................................... 6
Section 2.11 Voting by Ballot.............................................................. 7
ARTICLE III DIRECTORS.......................................................................... 7
Section 3.1 Number and Term of Office..................................................... 7
Section 3.2 Powers........................................................................ 7
Section 3.3 Vacancies..................................................................... 7
Section 3.4 Resignations and Removals..................................................... 7
Section 3.5 Meetings...................................................................... 8
Section 3.6 Quorum and Voting............................................................. 8
Section 3.7 Action Without Meeting........................................................ 9
Section 3.8 Fees and Compensation......................................................... 9
Section 3.9 Presumption of Assent......................................................... 9
Section 3.10 Committees.................................................................... 9
ARTICLE IV OFFICERS........................................................................... 11
Section 4.1 Officers Designated........................................................... 11
Section 4.2 Tenure and Duties of Officers................................................. 11
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ARTICLE V EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE
CORPORATION....................................................................... 12
Section 5.1 Execution of Corporate Instruments........................................... 12
Section 5.2 Voting of Securities Owned by Corporation.................................... 12
ARTICLE VI SHARES OF STOCK................................................................... 13
Section 6.1 Certificates................................................................. 13
Section 6.2 Transfers.................................................................... 13
Section 6.3 Replacement Certificate...................................................... 14
Section 6.4 Stock Ledger................................................................. 14
Section 6.5 Issuance of Units............................................................ 14
Section 6.6 Fractional Share Interests or Scrip.......................................... 14
Section 6.7 Dividends.................................................................... 15
ARTICLE VII INDEMNIFICATION................................................................... 15
Section 7.1 Right to Indemnification..................................................... 15
Section 7.2 Provisions Nonexclusive...................................................... 15
Section 7.3 Authority to Insure.......................................................... 15
Section 7.4 Survival of Rights........................................................... 16
Section 7.5 Subrogation.................................................................. 16
Section 7.6 No Duplication of Payments................................................... 16
Section 7.7 Right of Claimant to Bring Suit.............................................. 16
ARTICLE VIII MISCELLANEOUS..................................................................... 17
Section 8.1 Fiscal Year.................................................................. 17
Section 8.2 Exemption From Control Share Acquisition Act................................. 17
Section 8.3 Other Securities of the Corporation.......................................... 17
Section 8.4 Corporate Seal............................................................... 17
Section 8.5 Amendments................................................................... 17
Section 8.6 Reliance..................................................................... 18
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AMENDED AND RESTATED
BYLAWS
OF
UNITED DOMINION REALTY TRUST, INC.
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE IN MARYLAND AND RESIDENT AGENT.
The address of the principal office of the corporation in the State of
Maryland is 300 E. Lombard Street, Baltimore, Maryland 21202. The name and
address of the resident agent in the State of Maryland is The Corporation Trust
Incorporated, a Maryland corporation, 300 E. Lombard Street, Baltimore, Maryland
21202.
SECTION 1.2 OTHER OFFICES.
The corporation may also have and maintain such other offices or places
of business, both within and outside the State of Maryland as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 PLACE OF MEETINGS.
(a) Meetings of stockholders may be held at such place, either
within or outside the State of Maryland, as may be designated by or in the
manner provided in these Bylaws or, if not so designated, as determined by the
Board of Directors. The Board of Directors may, in its sole discretion,
determine that the meeting may not be held at any place, but may instead be held
solely by means of remote communication as authorized by paragraph (b) of this
Section 2.1.
(b) If authorized by the Board of Directors in its sole
discretion, and subject to such guidelines and procedures as the Board of
Directors may adopt, stockholders and proxyholders not physically present at a
meeting of stockholders may, by means of remote communication:
(i) Participate in a meeting of stockholders; and
(ii) Be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that the corporation (A) implements
reasonable measures to verify that
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each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder, (B) implements reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, and (C) maintains a record of any vote or action by any
stockholder or proxyholder at the meeting by means of remote communication.
(c) "Remote communication" means a conference telephone or similar
communications equipment provided that all persons participating in the meeting
can hear each other at the same time.
SECTION 2.2 ANNUAL MEETINGS.
The annual meetings of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time the Board of
Directors designates from time to time. Failure to hold an annual meeting does
not invalidate the corporation's existence or affect any otherwise valid
corporate act.
SECTION 2.3 SPECIAL MEETINGS.
Special meetings of the stockholders of the corporation may be called,
for any purpose or purposes, by the Chairman of the Board of Directors or the
President or by a majority of the Board of Directors at any time. Upon written
request of any stockholder or stockholders entitled to cast at least ten percent
(10%) of all the votes entitled to be cast at the meeting, if such request
states the purpose of the meeting and the matters proposed to be acted on at it,
delivered in person or sent by registered mail to the Chairman of the Board of
Directors, President or Secretary of the corporation, the Secretary shall inform
the stockholders who make the request of the reasonably estimated cost of
preparing and mailing a notice of the meeting and on payment of these costs to
the corporation, notify each stockholder entitled to notice of the meeting. The
Board of Directors has the sole power to fix the record date for determining
stockholders entitled to request a special meeting of the stockholders, the
record date for determining stockholders entitled to notice of and to vote at
the special meeting and the date, time and place of the special meeting.
SECTION 2.4 NOTICE OF MEETINGS.
(a) Except as otherwise provided by law or in the Articles of
Incorporation, written notice of each meeting of stockholders, specifying the
place, if any, date and hour and, in the case of a special meeting or as
otherwise may be required by law, purpose or purposes of the meeting, and the
means of remote communication, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting, shall be given
by the Secretary of the corporation not less than ten (10) nor more than ninety
(90) days before the date of the meeting to each stockholder entitled to vote
thereat, directed to his or her address as it appears upon the books of the
corporation. No business shall be transacted at a special meeting of
stockholders except as specifically designated in the notice.
(b) When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time, place, if any, thereof,
and the means of remote
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communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting, are announced at the
meeting at which the adjournment is taken unless the adjournment is for more
than one hundred twenty (120) days after the original record date, or unless
after the adjournment a new record date is fixed for the adjourned meeting, in
which event a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting.
(c) Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, either before or after such meeting, and,
to the extent permitted by law, will be waived by any stockholder by his or her
attendance thereat, in person or by proxy. Any stockholder so waiving notice of
such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(d) Without limiting the manner by which notice otherwise may be
given effectively to stockholders, any notice to stockholders given by the
corporation under any provision of Maryland General Corporation Law ("MGCL"),
the Articles of Incorporation or these Bylaws shall be effective when it is (i)
personally delivered to the stockholder, (ii) left at the stockholder's
residence or usual place of business, (iii) mailed to the stockholder at the
stockholder's address as it appears on the records of the corporation or (iv) if
consented to by such stockholder, transmitted to the stockholder by electronic
mail to any electronic mail address of the stockholder or by any other
electronic means. Any such consent shall be revocable by the stockholder by
written notice to the corporation. Any such consent shall be deemed revoked if
(i) the corporation is unable to deliver by electronic mail or other means two
consecutive notices given by the corporation in accordance with such consent,
and (ii) such inability becomes known to the Secretary or an assistant secretary
of the corporation or to the transfer agent or other person responsible for the
giving of notice; provided, however, the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action. An
affidavit of the Secretary or an assistant secretary or of the transfer agent or
other agent of the corporation that the notice has been given by a form of
electronic mail or other means shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. For purposes of these Bylaws, "electronic
mail" or "electronic means" means any form of communication, not directly
involving the physical transmission of paper, that creates a record that may be
retained, retrieved and reviewed by a recipient thereof, and that may be
directly reproduced in paper form by such a recipient through an automated
process.
SECTION 2.5 RECORD DATE.
For purposes of determining the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, or to receive
payment of any dividend or other distribution or allotment of any rights, or 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 (a) fix,
in advance, a record date which shall not be more than ninety (90) days prior to
the date of any such meeting or the taking of such other actions; or (b) direct
that the stock transfer books be closed for a period not to exceed twenty (20)
days. A record date may not precede the date on which the record date is fixed.
In the case of a meeting of stockholders, the record date or the closing of the
transfer books shall be at least ten (10) days before the meeting. A
determination of stockholders of record entitled to notice of or to vote at a
meeting
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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. Except where the Board of Directors fixes a new record date for any
adjourned meeting, any stockholder who was a stockholder on the original record
date shall be entitled to receive notice of and to vote at a meeting of
stockholders or any adjournment thereof and to receive a dividend or allotment
of rights even though he or she has since such date disposed of his or her
shares, and no stockholder becoming a stockholder after such date shall be
entitled to receive notice of or to vote at such meeting or any adjournment
thereof or to receive such dividend or allotment of rights.
If the Board of Directors does not so fix a record date or close the
stock transfer books, then:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the later of (i) at
the close or business on the day on which notice is mailed or (ii) at the close
of business on the thirtieth (30th) day next preceding the day on which the
meeting is held.
(b) 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 thereto provided that the payment of a
dividend or allotment of rights may not be made more than sixty (60) days after
the date on which such resolution was adopted.
SECTION 2.6 QUORUM AND VOTING.
(a) At all meetings of stockholders except where otherwise
provided by law, the Articles of Incorporation or these Bylaws, the presence, in
person or by proxy duly authorized, of the holders of a majority of all the
votes entitled to be cast at the meeting shall constitute a quorum for the
transaction of business. Shares, the voting of which at said meeting have been
enjoined, or which for any reason cannot be lawfully voted at such meeting,
shall not be counted to determine a quorum at said meeting. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, by vote
of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such meeting. At such adjourned meeting at which
a quorum is present or represented, any business may be transacted that might
have been transacted at the original meeting.
(b) Except as otherwise provided by law, the Articles of
Incorporation or these Bylaws, a majority of all the votes cast at a meeting at
which a quorum is present is sufficient to approve any matter that properly
comes before the meeting, except that a plurality of all the votes cast at a
meeting at which a quorum is present is sufficient to elect a director.
(c) Except as otherwise provided by law or the Articles of
Incorporation, where a separate vote by a class or classes is required, a
majority of the outstanding shares of such class or classes present in person or
represented by proxy shall constitute a quorum entitled to take action with
respect to that vote on that matter, and the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
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SECTION 2.7 RIGHT TO VOTE; PROXIES.
Unless the Articles of Incorporation provide for a greater or lesser
number of votes per share or limit or deny voting rights, each outstanding share
of stock, regardless of class, is entitled to one vote on each matter submitted
to a vote at a meeting of stockholders. A stockholder may cast the votes
entitled to be cast by the shares of the corporation owned of record by him or
her, either in person or by proxy in any manner authorized by law, by the
stockholder or by his or her duly authorized attorney in fact. Such proxy shall
be filed with the Secretary before or at the time of the meeting. A stockholder
may authorize another person to act as proxy by transmitting, or authorizing the
transmission of, an authorization by telegram, cablegram, datagram, electronic
mail or any other electronic or telephonic means to the person authorized to act
as proxy or to any other person authorized to receive the proxy authorization on
behalf of the person authorized to act as proxy, including a proxy solicitation
firm or proxy support service organization. No proxy shall be valid after eleven
(11) months from the date of its execution, unless otherwise provided in the
proxy. A proxy is revocable by a stockholder at any time without condition or
qualification unless the proxy states that it is irrevocable and the proxy is
coupled with an interest. A proxy may be made irrevocable for so long as it is
coupled with an interest. The interest with which a proxy may be coupled
includes an interest in the stock to be voted under the proxy or another general
interest in the corporation or its assets or liabilities.
SECTION 2.8 VOTING OF SHARES BY CERTAIN HOLDERS.
(a) Shares registered in the name of a corporation, partnership,
trust or other entity, if entitled to be voted, may be voted by the president or
a vice president, a general partner or trustee thereof, as the case may be, or a
proxy appointed by any of the foregoing individuals, unless some other person
who has been appointed to vote such shares pursuant to a bylaw or a resolution
of the governing body of such corporation or other entity or agreement of the
partners of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such shares. Any director or other
fiduciary may vote shares registered in his or her name as such fiduciary,
either in person or by proxy.
(b) Shares registered in the name of a person adjudged incompetent
may be voted and all rights incident thereto may be exercised only by his or her
guardian, in person or by proxy. Shares registered in the name of a deceased
person may be voted and all rights incident thereto may be exercised only by his
or her executor or administrator, in person or by proxy. Shares registered in
the name of a minor may be voted and all rights incident thereto may be
exercised by his or her guardian, in person or by proxy, or in the absence of
such representation by his or her guardian, by the minor, in person or by proxy,
whether or not the corporation has notice, actual or constructive, of the
minority or the appointment of a guardian, and whether or not a guardian has in
fact been appointed.
(c) Shares registered in the names of two or more persons shall be
voted or represented in accordance with the vote or consent of the majority of
the persons in whose names the shares stand. If only one such person is present
in person or by proxy, he or she may vote all the shares, and all the shares
standing in the names of such persons are represented for the purpose of
determining a quorum. This procedure also applies to the voting of shares by two
or
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more administrators, executors, trustees or other fiduciaries, unless the
instrument or order of court appointing them otherwise directs.
(d) Shares of the corporation directly or indirectly owned by it
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
(e) The Board of Directors may adopt by resolution a procedure by
which a stockholder may certify in writing to the corporation that any shares
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth: the
class of stockholders who may make the certification; the purpose for which the
certification may be made; the form of certification; the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified shares in place of the stockholder who makes the certification.
SECTION 2.9 INSPECTORS.
At any meeting of stockholders, the chairman of the meeting may appoint
one or more persons as inspectors for such meeting. Such inspectors shall
ascertain and report the number of shares represented at the meeting based on
their determination of the validity and effect of proxies, count all votes,
report the results and perform such other acts as are proper to conduct the
election and voting with impartiality and fairness to all the stockholders. Each
report of an inspector or inspectors shall be in writing and signed by him or by
a majority of them if there is more than one inspector; the report of a majority
shall be the report of the inspectors. The report of the inspector or inspectors
on the number of shares represented at the meeting and the results of the voting
shall be prima facie evidence thereof.
SECTION 2.10 ACTION WITHOUT MEETINGS.
Except as provided in the next sentence, any action required
or permitted to be taken at a meeting of stockholders may be taken without a
meeting if there is filed with the records of stockholders' meetings a unanimous
written consent which sets forth the action and is signed by each stockholder
entitled to vote on the matter. Unless the Articles of Incorporation require
otherwise, the holders of any class of stock other than common stock, entitled
to vote generally in the election of directors, may take action or consent to
any action by the written consent of stockholders entitled to cast not less than
the minimum number of votes that would be necessary to authorize or take the
action at a stockholders meeting if the corporation gives notice of the action
to each stockholder not later than ten (10) days after the effective time of the
action.
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SECTION 2.11 VOTING BY BALLOT.
If ordered by the presiding officer of any stockholder meeting, the
vote upon any election or question shall be by ballot.
ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER AND TERM OF OFFICE.
The number of directors of the corporation shall not be less than one
(1) nor more than twelve (12) until changed by a Bylaw amending this Section 3.1
duly adopted by the Board of Directors. The exact number of directors shall be
fixed from time to time, within the limits specified in this Section 3.1, by the
Board of Directors. Subject to the foregoing provisions for changing the number
of directors, the number of directors of the corporation has been fixed at
eleven (11).
With the exception of the first Board of Directors, which shall be
elected by the incorporators, and except as provided in Section 3.3 or unless
the Articles of Incorporation require otherwise, the directors shall be elected
by a plurality vote of the shares represented in person or by proxy, at the
stockholders annual meeting in each year and entitled to vote on the election of
directors. Elected directors shall hold office until the next annual meeting and
until their successors are duly elected and qualified. Directors need not be
stockholders. Directors are expected to resign after the annual meeting in the
year in which the director attains the age of 70 unless the Board of Directors
asks the director to continue to serve as a director.
SECTION 3.2 POWERS.
The powers of the corporation shall be exercised, its business
conducted and its property controlled by or under the direction of the Board of
Directors.
SECTION 3.3 VACANCIES.
Unless the Articles of Incorporation require otherwise, vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled only by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each director
so elected shall hold office for the unexpired portion of the term of the
director whose place is vacant and until his or her successor is duly elected
and qualified. A vacancy in the Board of Directors shall be deemed to exist
under this Section 3.3 in the case of the death, removal or resignation of any
director, or if the stockholders fail at any meeting of stockholders at which
directors are to be elected (including any meeting referred to in Section 3.4
below) to elect the number of directors then constituting the whole Board of
Directors.
SECTION 3.4 RESIGNATIONS AND REMOVALS.
(a) Any director may resign at any time by delivering his or her
resignation to the Secretary in writing or by electronic transmission, such
resignation to specify whether it will be
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effective at a particular time, upon receipt by the Secretary or at the pleasure
of the Board of Directors. If no such specification is made it shall be deemed
effective at the pleasure of the Board of Directors. When one or more directors
resigns from the Board of Directors effective at a future date and, unless the
Articles of Incorporation require otherwise, only a majority of the remaining
directors then in office, even if such remaining directors do not constitute a
quorum, shall have the power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations become effective, and each
director so chosen shall hold office for the unexpired portion of the term of
the director whose place is vacated and until his or her successor is duly
elected and qualified.
(b) Subject to the rights of one or more classes or series of
preferred stock of the corporation to elect or remove one or more directors, any
director or the entire Board of Directors may be removed from office at any
time, with or without cause, only at a meeting of the stockholders called for
such purpose (in accordance with Section 2.4), by the affirmative vote of the
holders of a majority of the outstanding shares entitled to vote, voting as a
class, in the election of directors. The notice of such meeting shall indicate
that the purpose or one of the purposes of such meeting is to determine if a
director should be removed.
SECTION 3.5 MEETINGS.
(a) The annual meeting of the Board of Directors shall be held
immediately after the annual stockholders' meeting and at the place where such
meeting is held or at the place announced by the Chairman at such meeting. No
notice of an annual meeting of the Board of Directors shall be necessary, and
such meeting shall be held for the purpose of electing officers and transacting
such other business as may lawfully come before it. The Board of Directors may
provide, by resolution, the time and place, either within or outside the State
of Maryland, for the holding of regular meetings of the Board of Directors
without notice other than such resolution.
(b) Special meetings of the Board of Directors may be called by or
at the request of the Chairman of the Board of Directors, the Chief Executive
Officer or by a majority of the members of the Board of Directors. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place, either within or outside the State of Maryland, as the place for
holding any special meeting of the Board of Directors called by them.
(c) Written notice of the time and place of all special meetings
of the Board of Directors shall be delivered personally to each director or sent
by telegram or facsimile transmission or other form of electronic transmission
at least twenty-four (24) hours before the start of the meeting, or sent by
first class mail at least five (5) days before the date of the meeting. Notice
of any meeting may be waived in writing, which shall be filed with the records
of the meeting, at any time before or after the meeting and will be waived by
any director by attendance thereat.
SECTION 3.6 QUORUM AND VOTING.
(a) A quorum of the Board of Directors shall consist of a majority
of the exact number of directors fixed from time to time in accordance with
Section 3.1; provided, however, at any meeting whether a quorum is present or
otherwise, a majority of the directors present may
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adjourn from time to time until the time fixed for the next regular meeting of
the Board of Directors, without notice other than by announcement at the
meeting.
(b) At each meeting of the Board of Directors at which a quorum is
present, all questions and business shall be determined by a vote of a majority
of the directors present, unless a different vote is required by law, the
Articles of Incorporation or these Bylaws.
(c) Any member of the Board of Directors, or of any committee
thereof, may participate in a meeting by means of conference telephone or other
communication equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation in a meeting by
such means shall constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or
any committee thereof, however called or noticed, or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, or a consent to holding
such meeting, or an approval of the minutes thereof. All such waivers, consents
or approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
SECTION 3.7 ACTION WITHOUT MEETING.
Unless otherwise restricted by the Articles of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a meeting, if a
unanimous written consent which sets forth the action is signed by each member
of the Board of Directors or of such committee, as the case may be, filed with
the minutes of proceedings of the Board of Directors or committee.
SECTION 3.8 FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed or
determined by resolution of the Board of Directors.
SECTION 3.9 PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the Board
of Directors at which action on any corporate matter is taken shall be presumed
to have assented to the action taken unless (a) such director announces his or
her dissent at the meeting and (b)(i) his or her dissent is entered in the
minutes of the meeting, (ii) he or she files his or her written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof or (iii) he or she forwards such dissent within twenty-four
(24) hours after the meeting is adjourned, by certified mail, return receipt
requested, bearing a postmark from the United States Postal Service to the
secretary of the meeting or the Secretary of the corporation. Such right to
dissent shall not apply to a director who voted in favor of such action or
failed to make his or her dissent known at the meeting.
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SECTION 3.10 COMMITTEES.
(a) The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, appoint an Executive Committee of one or more
directors. The Executive Committee to the extent permitted by law shall have and
may exercise all powers of the Board of Directors in the management of the
business and affairs of the corporation, except as prohibited by law. If the
Board of Directors has given general authorization for the issuance of stock
providing for or establishing a method or procedure for determining the maximum
number of shares to be issued, a committee of the Board of Directors, in
accordance with that general authorization or any stock option or other plan or
program adopted by the Board of Directors, may authorize or fix the terms of
stock subject to classification or reclassification and the terms on which any
stock may be issued, including all terms and conditions required or permitted to
be established or authorized by the Board of Directors under Sections 2-203 and
2-208 of the MGCL.
(b) The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, from time to time appoint such other committees
as may be permitted or required by law. Such other committees appointed by the
Board of Directors shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committee, but in no
event shall any such committee have the powers denied to the Executive Committee
in these Bylaws.
(c) The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which appointed such
committee. The Board of Directors, subject to the provisions of subsections (a)
or (b) of this Section 3.10, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee; provided that
no committee shall consist of less than one member. The membership of a
committee member shall terminate on the date of his or her death or voluntary
resignation, but the Board of Directors may at any time for any reason remove
any individual committee member and the Board of Directors may fill any
committee vacancy created by death, resignation, removal or increase in the
number of members of the committee. The Board of Directors 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, and, in addition, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she 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.
(d) Unless the Board of Directors otherwise provides, regular
meetings of the Executive Committee or any other committee appointed pursuant to
this Section 3.10 shall be held at such times and places as are determined by
the Board of Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice of such regular
meetings need be given thereafter. Special meetings of any such committee may be
held at the principal office of the corporation or at any place which has been
designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who is a
member of such committee upon written notice to the members of such committee of
the time and place of such special meeting
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given in the manner provided for the giving of written notice to members of the
Board of Directors of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be waived in
writing at any time before or after the meeting and will be waived by any
director by attendance thereat. A majority of the authorized number of members
of any such committee shall constitute a quorum for the transaction of business,
and the act of a majority of those present at any meeting at which a quorum is
present shall be the act of such committee.
ARTICLE IV
OFFICERS
SECTION 4.1 OFFICERS DESIGNATED.
The Board of Directors, promptly after its election in each year, shall
appoint a Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors and a President (all of whom shall be directors) and a Treasurer and
Secretary and may appoint one or more Vice Presidents and such other officers or
assistant officers as it may deem proper. Any officer may hold more than one
office, except for the offices of President and Vice President. A person who
holds more than one office in the corporation may not act in more than one
capacity to execute, acknowledge or verify an instrument required by law to be
executed, acknowledged or verified by more than one officer. Vacancies among the
officers and assistant officers shall be filled by the Board of Directors.
SECTION 4.2 TENURE AND DUTIES OF OFFICERS.
(a) All officers shall hold office at the pleasure of the Board of
Directors and until their successors are duly elected and qualified, unless
sooner removed. Any officer elected or appointed by the Board of Directors may
be removed at any time by the Board of Directors if the Board of Directors in
its judgment finds that the best interests of the corporation will be served. If
the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors. Nothing in these Bylaws shall be construed as
creating any kind of contractual right to employment with the corporation.
(b) The Chairman of the Board of Directors when present shall
preside at all meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform such other duties and have such
other powers as the Board of Directors may designate from time to time.
(c) The Vice Chairman in the absence of the Chairman of the Board
of Directors shall preside at all meetings of the stockholders and at all
meetings of the Board of Directors. The Vice Chairman of the Board of Directors
shall perform such other duties and have such other powers as the Board of
Directors may designate from time to time.
(d) The President shall be the chief executive officer of the
corporation and in the absence of the Chairman and Vice Chairman of the Board of
Directors, shall preside at all meetings of the stockholders and at all meetings
of the Board of Directors. The President shall
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perform such other duties and have such other powers as the Board of Directors
may designate from time to time.
(e) The Vice Presidents, in the order of their seniority, may
assume and perform the duties of the President in the absence or disability of
the President or whenever the office of the President is vacant. The Vice
Presidents shall perform such other duties and have such other powers as the
Board of Directors or the President may designate from time to time.
(f) The Secretary shall attend all meetings of the stockholders
and of the Board of Directors and any committee thereof, and shall record all
acts and proceedings thereof in the minute book of the corporation. The
Secretary shall give notice, in conformity with these Bylaws, of all meetings of
the stockholders and of all meetings of the Board of Directors and any committee
thereof requiring notice. The Secretary shall perform such other duties and have
such other powers as the Board of Directors may designate from time to time. The
President may direct any assistant secretary to assume and perform the duties of
the Secretary in the absence or disability of the Secretary, and each assistant
secretary shall perform such other duties and have such other powers as the
Board of Directors or the President may designate from time to time.
(g) The Treasurer shall keep or cause to be kept the books of
account of the corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the corporation in such form and as often
as required by the Board of Directors or the President. The Treasurer, subject
to the order of the Board of Directors, shall have the custody of all funds and
securities of the corporation. The Treasurer shall perform all other duties
commonly incident to his or her office and shall perform such other duties and
have such other powers as the Board of Directors or the President may designate
from time to time. The President may direct any assistant treasurer to assume
and perform the duties of the Treasurer in the absence or disability of the
Treasurer, and each assistant treasurer shall perform such other duties and have
such other powers as the Board of Directors or the President may designate from
time to time.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
SECTION 5.1 EXECUTION OF CORPORATE INSTRUMENTS.
(a) The Board of Directors may in its discretion determine the
method and designate the signatory officer or officers, or other person or
persons, to execute any corporate instrument or document, or to sign the
corporate name without limitation, except where otherwise provided by law, and
such execution or signature shall be binding upon the corporation.
(b) All checks and drafts drawn on banks or other depositaries on
funds to the credit of the corporation or in special accounts of the corporation
shall be signed by such person or persons as the Board of Directors may
authorize.
(c) Execution of any corporate instrument may be effected in such
form, either manual, facsimile or electronic signature, as may be authorized by
the Board of Directors.
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SECTION 5.2 VOTING OF SECURITIES OWNED BY CORPORATION.
All stock and other securities of other corporations owned or held by
the corporation for itself or for other parties in any capacity shall be voted,
and all proxies with respect thereto shall be executed, by the person authorized
so to do by resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board of Directors, the President or any
Vice President.
ARTICLE VI
SHARES OF STOCK
SECTION 6.1 CERTIFICATES.
Each stockholder shall be entitled to a certificate or certificates
which represent and certify the number of shares of each class held by him or
her in the corporation; provided, however, that the Board of Directors may
provide by resolution or resolutions that some or all of any class or series of
shares may be uncertificated. Each certificate shall include on its face the
name of the corporation, the name of the stockholder or other person to whom it
is issued and the class of stock and number of shares it represents. Each
certificate shall be signed by the Chairman of the Board of Directors, the
President or any Vice President and countersigned by the Secretary or an
assistant secretary or the Treasurer or an assistant treasurer and may be sealed
with the seal, if any, of the corporation. The signatures may be either manual
or facsimile. Certificates shall be consecutively numbered; and if the
corporation issues several classes of shares, each class may have its own
numbered series. A certificate is valid and may be issued whether or not an
officer who signed it is still an officer when it is issued. A stock certificate
may not be issued until the stock represented by it is fully paid. Each
certificate representing shares which are restricted as to their transferability
shall contain a full statement of such restriction or state that the corporation
will furnish information about the restriction to the stockholder on request and
without charge. Except as otherwise provided by law, the fact that a stock
certificate does not contain or refer to a restriction on transferability that
is adopted after the date of issuance of the stock certificate does not mean
that the restriction is invalid or unenforceable. If the corporation has
authority to issue shares of more than one class, the certificate shall contain
on the face or back a full statement or summary of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption of each class of shares which the corporation is
authorized to issue and, if the corporation is authorized to issue any preferred
or special class in series, the differences in the relative rights and
preferences between the shares of each series to the extent they have been set
and the authority of the Board of Directors to set the relative rights and
preferences of subsequent series. In lieu of such statement or summary, the
certificate may state that the corporation will furnish a full statement of such
information to any stockholder upon request and without charge.
SECTION 6.2 TRANSFERS.
Upon surrender to the corporation or the transfer agent of the
corporation of a stock certificate duly endorsed or accompanied by proper
evidence of succession, assignment or
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authority to transfer, the corporation shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
on its books. Notwithstanding the foregoing, transfers of shares of any class
will be subject in all respects to the Articles of Incorporation and all of the
terms and conditions contained therein.
SECTION 6.3 REPLACEMENT CERTIFICATE.
The Secretary and any other officer designated by the Board of
Directors may direct a new certificate to be issued in place of any certificate
previously issued by the corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance
of a new certificate, the Secretary or other officer designated by the Board of
Directors may, in his or her discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to give bond, with sufficient
surety, to the corporation to indemnify it against any loss or claim which may
arise as a result of the issuance of a new certificate.
SECTION 6.4 STOCK LEDGER.
The corporation shall maintain at its principal office or at the office
of its counsel, accountants or transfer agent, an original or duplicate stock
ledger containing the name and address of each stockholder and the number of
shares of each class held by such stockholder. The stock ledger may be in
written form or in any other form which can be converted within a reasonable
time into written form for visual inspection. The corporation shall be entitled
to treat the holder of record of any share as the holder in fact thereof and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Share or on the part of any other person, whether or not it has
express or other notice thereof, except as otherwise provided by the laws of the
State of Maryland.
SECTION 6.5 ISSUANCE OF UNITS.
Notwithstanding any other provision of these Bylaws to the contrary,
the Board of Directors may issue units consisting of different securities of the
corporation. Any security issued in a unit shall have the same characteristics
as any identical securities issued by the corporation, except that the Board of
Directors may provide that, for a specified period, securities of the
corporation issued in such unit may be transferred on the books of the
corporation only in such unit.
SECTION 6.6 FRACTIONAL SHARE INTERESTS OR SCRIP.
The corporation may, but is not obliged to, issue fractional shares of
stock, eliminate a fractional interest by rounding off to a full share of stock,
arrange for the disposition of a fractional interest by the person entitled to
it, pay cash for the fair value of a fractional share of stock determined as of
the time when the person entitled to receive it is determined, or issue scrip,
or other evidence of ownership aggregating a full share for a certificate which
represents the share and, unless otherwise provided, does not entitle the holder
to exercise any voting rights, to receive dividends thereon or to participate in
any of the assets of the corporation in the event of liquidation. The Board of
Directors may impose any reasonable condition on the issuance of
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scrip or other evidence of ownership, and may cause such scrip or other evidence
of ownership to be issued subject to the condition that it will become void if
not exchanged for a certificate representing a full share of stock before a
specified date or subject to the condition that the shares for which such scrip
or other evidence of indebtedness are exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of such scrip or
other evidence of indebtedness, or subject to a provision of forfeiture of such
proceeds to the corporation if not claimed within a period of not less than
three years from the date the scrip or other evidence of ownership was
originally issued.
SECTION 6.7 DIVIDENDS.
If declared by the Board of Directors at any meeting thereof, the
corporation may pay dividends on its shares in cash, property, or in shares of
the capital stock of the corporation, unless such dividend is contrary to law or
to a restriction contained in the Articles of Incorporation.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 RIGHT TO INDEMNIFICATION.
The corporation shall indemnify its directors and officers, whether
serving the corporation or, at its request, any other entity, to the full extent
required or permitted by the general laws of the State of Maryland now or
hereafter in force, including the advancement of expenses under the procedures
and to the full extent permitted by law. The corporation may indemnify other
employees and agents, whether serving the corporation or, at its request, any
other entity, to such extent as may be authorized by the Board of Directors and
as permitted by law. The foregoing rights of indemnification shall not be
exclusive of any other rights to which those seeking indemnification may be
entitled. The Board of Directors may take such action as is necessary to carry
out these indemnification provisions and is expressly empowered to adopt,
approve and amend from time to time resolutions or contracts implementing such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of these Bylaws or repeal of any of its provisions shall limit
or eliminate the foregoing right to indemnification provided hereunder with
respect to acts or omissions occurring prior to such amendment or repeal.
SECTION 7.2 PROVISIONS NONEXCLUSIVE.
The rights conferred on any person by this Article VII shall not be
exclusive of any other rights that such person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation, agreement, vote
of stockholders or disinterested directors, or otherwise, both as to action in
an official capacity and as to action in another capacity while holding such
office. To the extent that any provision of the Articles of Incorporation,
agreement or vote of the stockholders or disinterested directors is inconsistent
with these Bylaws, such provision, agreement or vote shall take precedence.
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SECTION 7.3 AUTHORITY TO INSURE.
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation
or who, while a director, officer, employee or agent of the corporation, is or
was serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan against any liability asserted
against and incurred by such person in any such capacity or arising out of such
person's position, whether or not the corporation would have the power to
indemnify against liability under the general laws of the State of Maryland.
SECTION 7.4 SURVIVAL OF RIGHTS.
The rights provided by this Article VII shall continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 7.5 SUBROGATION.
In the event of payment under this Article VII, the corporation shall
be subrogated to the extent of such payment to all of the rights of recovery of
the director or officer, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the corporation effectively to bring suit
to enforce such rights.
SECTION 7.6 NO DUPLICATION OF PAYMENTS.
The corporation shall not be liable under this Article VII to make any
payment in connection with any claim made against a director or officer to the
extent the director or officer has otherwise actually received payment (under
any insurance policy, agreement, vote or otherwise) of the amounts otherwise
indemnifiable hereunder.
SECTION 7.7 RIGHT OF CLAIMANT TO BRING SUIT.
If a claim under Section 7.1 of this Article VII is not paid in full by
the corporation within ninety (90) days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to also be paid the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any, has been tendered to the corporation) that the claimant has not met the
standards of conduct which make it permissible under the MGCL for the
corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the corporation. Neither the failure of the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
MGCL, nor an actual determination by the corporation (including its Board of
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Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 FISCAL YEAR.
The fiscal year of the corporation shall be the twelve (12) calendar
months ending December 31 in each year, unless otherwise provided by the Board
of Directors.
SECTION 8.2 EXEMPTION FROM CONTROL SHARE ACQUISITION ACT.
The provisions of Title 3, Subtitle 7 of the MGCL (the Maryland Control
Share Acquisition Act), or any successor statute, shall not apply to any
acquisition by any person of shares of the corporation. This Section 8.2 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 and consistent with applicable law, apply to any prior or
subsequent control share acquisition.
SECTION 8.3 OTHER SECURITIES OF THE CORPORATION.
Each certificate which represents any bond, note, guaranty, obligation
or other corporate security (other than stock) shall be signed by the Chairman
of the Board of Directors, the President or any Vice President and countersigned
by the Secretary, an assistant secretary, the Treasurer or the assistant
treasurer. Such certificate may be sealed with the actual corporate seal or a
facsimile of it or in any other form. The signatures on the certificate may be
either manual or facsimile signatures. A certificate is valid and may be issued
whether or not an officer who signed it is still an officer at the time it is
issued.
SECTION 8.4 CORPORATE SEAL.
The corporate seal shall be a flat-faced circular die, of which there
may be any number of counterparts, with the word "SEAL" and the name of the
corporation engraved thereon. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise. If the
corporation is required to place its corporate seal to a document, it is
sufficient to meet the requirements of any law, rule or regulation relating to a
corporate seal to place the word "(seal)" adjacent to the signature of the
person authorized to sign the document on behalf of the corporation.
SECTION 8.5 AMENDMENTS.
The Board of Directors shall have the exclusive power to replace,
alter, amend or repeal these Bylaws or adopt new Bylaws (including, without
limitation, the amendment of any Bylaws setting forth the number of directors
who shall constitute the whole Board of Directors) by unanimous written consent
or at any annual, regular, or special meeting by the affirmative vote
17
of a majority of the whole number of directors. With the approval of the Board
of Directors, the stockholders shall have the power, by affirmative vote of a
majority of the outstanding shares of common stock of the corporation, at any
annual meeting (subject to the notice requirements of Section 2.4) or at any
special meeting if notice thereof is included in the notice of such special
meeting, to alter, amend or repeal any Bylaws of the corporation and to make new
Bylaws.
SECTION 8.6 RELIANCE.
Each director of the corporation shall, in the performance of his or
her duties with respect to the corporation, be entitled to rely on any
information, opinion report or statement, including financial statements or
other financial data, prepared or presented by an officer or employee of the
corporation whom the director reasonably believes to be reliable and competent
in the matters presented, by a lawyer, certified public accountant or other
person as to a matter which the director reasonably believes to be within the
person's professional or expert competence or by a committee of the Board of
Directors on which the director does not serve, as to a matter within its
designated authority, if the director believes the committee to merit
confidence.
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