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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of earliest event reported: September 4, 1997
First Industrial Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland 1-13102 36-3935116
(State or other (Reporting File (I.R.S. Employer
jurisdiction of organization) Number) Identification No.)
150 N. Wacker Drive, Suite 150
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
(312) 704-9000
(Registrant's telephone number, including area code)
-2-
Item 7. Financial Statements and Exhibits
Exhibit
Number Exhibit
1 Amended and Restated Bylaws of First Industrial Realty Trust,
Inc. dated September 4, 1997.
-3-
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
FIRST INDUSTRIAL REALTY TRUST, INC.
By: /s/ Michael J. Havala
----------------------------
Name: Michael J. Havala
Title: Chief Financial Officer, Treasurer
and Secretary
Date: September 29, 1997
Exhibit Index
Exhibit
Number Exhibit
1 Amended and Restated Bylaws of First Industrial Realty Trust Inc.
dated September 4, 1997.
AMENDED AND RESTATED
BYLAWS
OF
FIRST INDUSTRIAL REALTY TRUST, INC.
(September 4, 1997)
TABLE OF CONTENTS
ARTICLE I - MEETINGS OF STOCKHOLDERS
1.1 PLACE ...................................................................1
1.2 ORGANIZATION MEETING; ANNUAL MEETING ....................................1
1.3 MATTERS TO BE CONSIDERED AT ANNUAL MEETING ..............................1
1.4 SPECIAL MEETINGS ........................................................5
1.5 NOTICE ..................................................................5
1.6 SCOPE OF NOTICE .........................................................5
1.7 QUORUM ..................................................................5
1.8 VOTING ..................................................................6
1.9 PROXIES .................................................................7
1.10 CONDUCT OF MEETINGS .....................................................7
1.11 TABULATION OF VOTES .....................................................7
1.12 INFORMAL ACTION BY STOCKHOLDERS .........................................8
1.13 VOTING BY BALLOT ........................................................8
ARTICLE II - DIRECTORS
2.1 GENERAL POWERS ..........................................................9
2.2 OUTSIDE ACTIVITIES ......................................................9
2.3 NUMBER, TENURE AND QUALIFICATION .......................................10
2.4 NOMINATION OF DIRECTORS ................................................10
2.5 ANNUAL AND REGULAR MEETINGS ............................................14
2.6 SPECIAL MEETINGS .......................................................14
2.7 NOTICE .................................................................14
2.8 QUORUM .................................................................15
2.9 VOTING .................................................................15
2.10 CHAIRMAN OF THE BOARD ..................................................15
2.11 CONDUCT OF MEETINGS ....................................................16
2.12 RESIGNATIONS ...........................................................16
2.13 REMOVAL OF DIRECTORS ...................................................16
2.14 VACANCIES ..............................................................17
2.15 INFORMAL ACTION BY DIRECTORS ...........................................17
2.16 COMPENSATION ...........................................................17
ARTICLE III - COMMITTEES
3.1 NUMBER, TENURE AND QUALIFICATION .......................................18
3.2 DELEGATION OF POWER ....................................................18
3.3 QUORUM AND VOTING ......................................................18
3.4 CONDUCT OF MEETINGS ....................................................18
3.5 INFORMAL ACTION BY COMMITTEES ..........................................19
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ARTICLE IV - OFFICERS
4.1 TITLES AND ELECTION ....................................................19
4.2 REMOVAL ................................................................20
4.3 OUTSIDE ACTIVITIES .....................................................20
4.4 VACANCIES ..............................................................21
4.5 PRESIDENT ..............................................................21
4.6 CHIEF OPERATING OFFICER ................................................21
4.7 CHIEF FINANCIAL OFFICER ................................................22
4.8 VICE PRESIDENTS ........................................................22
4.9 SECRETARY ..............................................................22
4.10 TREASURER ..............................................................23
4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS .........................23
4.12 OTHER OFFICERS .........................................................24
4.13 SALARIES ...............................................................24
ARTICLE V - SHARES OF STOCK
5.1 NO CERTIFICATES FOR STOCK ..............................................24
5.2 ELECTION TO ISSUE CERTIFICATES .........................................24
5.3 STOCK LEDGER ...........................................................25
5.4 RECORDING TRANSFERS OF STOCK ...........................................26
5.5 LOST CERTIFICATES ......................................................26
5.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE .....................27
ARTICLE VI - DIVIDENDS AND DISTRIBUTIONS
6.1 DECLARATION ............................................................28
6.2 CONTINGENCIES ..........................................................28
ARTICLE VII - INDEMNIFICATION
7.1 INDEMNIFICATION TO THE EXTENT PERMITTED BY LAW .........................29
7.2 INSURANCE ..............................................................30
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY;
HEIRS AND PERSONAL REPRESENTATIVES .....................................30
7.4 NO LIMITATION ..........................................................30
ARTICLE VIII - NOTICES
8.1 NOTICES ................................................................30
8.2 SECRETARY TO GIVE NOTICE ...............................................31
8.3 WAIVER OF NOTICE .......................................................31
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ARTICLE IX - MISCELLANEOUS
9.1 BOOKS AND RECORDS ......................................................32
9.2 INSPECTION OF BYLAWS AND CORPORATE RECORDS .............................32
9.3 CONTRACTS ..............................................................32
9.4 CHECKS, DRAFTS, ETC. ...................................................33
9.5 LOANS ..................................................................34
9.6 FISCAL YEAR ............................................................34
9.7 ANNUAL REPORT ..........................................................35
9.8 INTERIM REPORTS ........................................................35
9.9 OTHER REPORTS ..........................................................35
9.10 BYLAWS SEVERABLE .......................................................35
ARTICLE X - AMENDMENT OF BYLAWS
10.1 BY DIRECTORS ...........................................................36
10.2 BY STOCKHOLDERS ........................................................36
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ARTICLE I
MEETINGS OF STOCKHOLDERS
1.1 PLACE. All meetings of the holders of the issued and outstanding
capital stock of the Corporation (the "Stockholders") shall be held at the
principal executive office of the Corporation or such other place within the
United States as shall be stated in the notice of the meeting.
1.2 ORGANIZATION MEETING; ANNUAL MEETING. An annual meeting of the
Stockholders for the election of Directors and the transaction of such other
business as properly may be brought before the meeting shall be held on the
third Wednesday in April of each year or at such other date and time as may be
fixed by the Board of Directors. If the date fixed for the annual meeting shall
be a legal holiday, such meeting shall be held on the next succeeding business
day. If no annual meeting is held on the date designated, a special meeting in
lieu thereof may be held, and such special meeting shall have, for purposes of
these Bylaws or otherwise, all the force and effect of an annual meeting. Any
and all references hereinafter in these Bylaws to an annual meeting or to annual
meetings shall be deemed to refer also to any special meeting(s) in lieu
thereof. Failure to hold an annual meeting shall not invalidate the
Corporation's existence or affect any otherwise valid act of the Corporation.
1.3 MATTERS TO BE CONSIDERED AT ANNUAL MEETING
(a) At an annual meeting of Stockholders only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before the annual meeting (i) by, or at the direction of, a
majority of the Board of Directors or (ii)
by any holder of record (both as of the time notice of such proposal is given by
the Stockholder as set forth below and as of the record date for the annual
meeting in question) of any shares of the Corporation's capital stock entitled
to vote at such annual meeting who complies with the procedure set forth in this
Section 1.3. 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, and such Stockholder or his representative
must be present in person at the annual meeting. For the first annual meeting
following the initial public offering of common stock of the Corporation, a
Stockholder's notice shall be timely if delivered to, or mailed and received at,
the principal executive office of the Corporation not later than the close of
business on the 20th calendar day (or if that day is not a business day for the
Corporation, on the next business day) following the date on which notice of the
date for the first annual meeting is mailed or otherwise transmitted to
Stockholders. For all subsequent annual meetings, a Stockholder's notice shall
be timely if delivered to, or mailed and received at, the principal executive
offices of the Corporation (A) not less than 75 days nor more than 180 days
prior to the anniversary date of the immediately preceding annual meeting of
Stockholders or special meeting in lieu thereof (the "Anniversary Date") or (B)
in the event that the annual meeting of Stockholders is called for a date more
than 7 calendar days prior to the Anniversary Date, not later than the close of
business on (1) the 20th calendar day (or if that day is not a business day for
the Corporation, on the next succeeding business day) following the earlier of
(x) the date on which notice of the date of such meeting was mailed to
Stockholders or (y) the date on which the date of such meeting was publicly
disclosed or (2) if such date of notice or public disclosure occurs more than 75
calendar days prior to the scheduled date of such meeting, then the later of (x)
the 20th calendar day (or if that day is not a business day for the Corporation,
on the next
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succeeding business day) following the date of the first to occur of such notice
or public disclosure or (y) the 75th calendar day prior to such scheduled date
of such meeting (or if that day is not a business day for the Corporation, on
the next succeeding business day).
(b) A Stockholder's notice to the Secretary shall set forth as to each
matter the Stockholder proposes to bring before the annual meeting (i) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's stock transfer books, of the
Stockholder proposing such business 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 proposal on the
date of such Stockholder's notice, (iii) the class and number of shares of the
Corporation's capital stock which are beneficially owned by the Stockholder and
such beneficial owners (if any) on the date of such Stockholder's notice and by
any other Stockholders known by such Stockholder to be supporting such proposal
on the date of such Stockholder's notice and (iv) any financial interest of the
Stockholder or of any such beneficial owner in such proposal.
(c) If the Board of Directors, or a designated committee thereof,
determines that any Stockholder proposal was not timely made in accordance with
the terms of this Section 1.3, such proposal shall not be presented for action
at the annual meeting in question. If the Board of Directors or a designated
committee thereof determines that the information provided in a Stockholder's
notice does not satisfy the informational requirements of this section in any
material respect, the Secretary of the Corporation shall promptly notify such
Stockholder of the deficiency in the notice. Such Stockholder shall have an
opportunity to cure the deficiency by
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providing additional information to the Secretary within the period of time, not
to exceed 5 days from the date such deficiency notice is given to the
Stockholder, determined by the Board of Directors or such committee. If the
deficiency is not cured within such period, or if the Board of Directors of such
committee determines that the additional information provided by the
Stockholder, together with the information previously provided, does not satisfy
the requirements of this Section 1.3 in any material respect, then such proposal
shall not be presented for action at the annual meeting in question.
(d) Notwithstanding the procedure set forth in the preceding paragraph, if
neither the Board of Directors nor such committee makes a determination as to
the validity of any Stockholder proposal as set forth above, the presiding
Officer of the annual meeting shall determine and declare at the annual meeting
whether the Stockholder proposal was made in accordance with the terms of this
Section 1.3. If the presiding Officer determines that a Stockholder proposal was
made in accordance with the terms of this Section 1.3, the presiding Officer
shall so declare at the annual meeting. If the presiding Officer determines that
a Stockholder proposal was not made in accordance with the provisions of this
Section 1.3, the presiding Officer shall so declare at the annual meeting and
such proposal shall not be acted upon at the annual meeting.
(e) 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 except in accordance
with the provisions of this Section 1.3.
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1.4 SPECIAL MEETINGS. The Chairman of the Board, the President or a
majority of the Board of Directors may call special meetings of the
Stockholders. Special meetings of Stockholders shall also be called by the
Secretary, but only upon the written request of the holders of shares entitled
to cast a majority of all the votes entitled to be cast at the meeting. Such
request shall state the purpose or purposes of such meeting and the matters
proposed to be acted on thereat. The date, time, place and record date for any
special meeting, including a special meeting called at the request of
Stockholders, shall be established by the Board of Directors or Officer calling
the same.
1.5 NOTICE. Not less than ten (10) nor more than ninety (90) days before
the date of every meeting of Stockholders, written or printed notice of such
meeting shall be given, in accordance with Article VIII, to each Stockholder
entitled to vote or entitled to notice by statute, stating the time and place of
the meeting and, in the case of a special meeting or as otherwise may be
required by statute, the purpose or purposes for which the meeting is called.
1.6 SCOPE OF NOTICE. No business shall be transacted at a special meeting
of Stockholders except that specifically designated in the notice of the
meeting. Any business of the Corporation may be transacted at the annual meeting
without being specifically designated in the notice, except such business as is
required by statute to be stated in such notice.
1.7 QUORUM. At any meeting of Stockholders, the presence in person or by
proxy of Stockholders entitled to cast a majority of the votes shall constitute
a quorum; but this Section shall not affect any requirement under any statute or
the Articles of Incorporation of the Corporation, as amended (the "Charter"),
for the vote necessary for the adoption of any measure.
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If, however, a quorum is not present at any meeting of the Stockholders, the
Stockholders present in person or by proxy shall have the power to adjourn the
meeting from time to time without notice other than by announcement at the
meeting until a quorum is present, and the meeting so adjourned may be
reconvened without further notice. At any adjourned meeting at which a quorum is
present, any business may be transacted that might have been transacted at the
meeting as originally notified. The Stockholders present at a meeting which has
been duly called and convened and at which a quorum is present at the time
counted may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Stockholders to leave less than a quorum.
1.8 VOTING. A majority of the votes cast at a meeting of Stockholders duly
called and at which a quorum is present shall be sufficient to take or authorize
action upon any matter which may properly come before the meeting, unless more
than a majority of the votes cast is specifically required by statute, the
Charter or these Bylaws. Unless otherwise provided by statute, the Charter or
these Bylaws, each outstanding share (a "Share") of capital stock of the
Corporation (the "Stock"), regardless of class, shall be entitled to one vote
upon each matter submitted to a vote at a meeting of Stockholders. Pursuant to
Section 3-702 of the Maryland General Corporation Law, any and all acquisitions
of Shares of Stock are hereby exempted from the provisions of Title 3, Subtitle
7 of the Maryland General Corporation Law, which relates to voting rights of
certain control shares. Shares of its own Stock directly or indirectly owned by
the Corporation shall not be voted in any meeting and shall not be counted in
determining the total number of outstanding Shares entitled to vote at any given
time, but Shares of its own voting Stock held by it in a fiduciary capacity may
be voted and shall be counted in determining
6
the total number of outstanding Shares at any given time. Notwithstanding
anything contained in these Bylaws the rights of Excess Stock and the holders of
Excess Stock shall be limited to rights provided in the Corporation's Articles
of Incorporation, as amended from time to time.
1.9 PROXIES. A Stockholder may vote the Shares owned of record by him or
her, either in person or by proxy executed in writing by the Stockholder or by
his or her duly authorized attorney in fact. Such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution, unless
otherwise provided in the proxy.
1.10 CONDUCT OF MEETINGS. The Chairman of the Board or, in the absence of
the Chairman, the President, or, in the absence of the Chairman, President and
Vice Presidents, a presiding Officer elected at the meeting, shall preside over
meetings of Stockholders. The Secretary of the Corporation, or, in the absence
of the Secretary and Assistant Secretaries, the person appointed by the
presiding Officer of the meeting, shall act as secretary of such meeting.
1.11 TABULATION OF VOTES. At any annual or special meeting of Stockholders,
the presiding Officer shall be authorized to appoint a teller for such meeting
(the "Teller"). The Teller may, but need not, be an Officer or employee of the
Corporation. The Teller shall be responsible for tabulating or causing to be
tabulated Shares voted at the meeting and reviewing or causing to be reviewed
all proxies. In tabulating votes, the Teller shall be entitled to rely in whole
or in part on tabulations and analyses made by personnel of the Corporation, its
counsel, its transfer agent, its registrar or such other organizations that are
customarily employed to provide such services. The Teller may be authorized by
the presiding Officer to determine on a
7
preliminary basis the legality and sufficiency of all votes cast and proxies
delivered under the Corporation's Charter, Bylaws and applicable law. The
presiding Officer may review all preliminary determinations made by the Teller
hereunder and, in doing so, the presiding Officer shall be entitled to exercise
his or her sole judgment and discretion and he or she shall not be bound by any
preliminary determinations made by the Teller. Each report of the Teller shall
be in writing and signed by him or her.
1.12 INFORMAL ACTION BY STOCKHOLDERS. An action required or permitted to be
taken at a meeting of Stockholders may be taken without a meeting if a consent
in writing, setting forth such action, is signed by all the Stockholders
entitled to vote on the subject matter thereof and any other Stockholders
entitled to notice of a meeting of Stockholders (but not to vote thereat) have
waived in writing any rights which they may have to dissent from such action,
and such consents and waivers are filed with the minutes of proceedings of the
Stockholders. Such consents and waivers may be signed by different Stockholders
on separate counterparts.
1.13 VOTING BY BALLOT. Voting on any question or in any election may be
viva voce unless the presiding Officer shall order or any Stockholder shall
demand that voting be by ballot.
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ARTICLE II
DIRECTORS
2.1 GENERLA POWERS. The business and affairs of the Corporation shall be
managed by its Board of Directors. All powers of the Corporation may be
exercised by or under the authority of the Board of Directors, except as
conferred on or reserved to the Stockholders by statute, the Charter or these
Bylaws.
2.2 OUTSIDE ACTIVITIES. The Board of Directors and its members are required
to spend only such time managing the business and affairs of the Corporation as
is necessary to carry out their duties in accordance with Section 2-405.1 of the
Maryland General Corporation Law. The Board of Directors, each Director, and the
agents, Officers and employees of the Corporation or of the Board of Directors
or of any Director may engage with or for others in business activities of the
types conducted by the Corporation. Except as set forth in the Charter or by
separate agreement, none of such individuals has an obligation to notify or
present to the Corporation or each other any investment opportunity that may
come to such person's attention even though such investment might be within the
scope of the Corporation's purposes or various investment objectives. Any
interest (including any interest as defined in Section 2-419(a) of the Maryland
General Corporation Law) that a Director has in any investment opportunity
presented to the Corporation must be disclosed by such Director to the Board of
Directors (and, if voting thereon, to the Stockholders or to any committee of
the Board of Directors) within ten (10) days after the later of the date upon
which such Director becomes aware of such interest or the date upon which such
Director becomes aware that the Corporation is considering such investment
opportunity. If such interest comes to the interested Director's attention after
a vote to take such
9
investment opportunity, the voting body shall be notified of such interest and
shall reconsider such investment opportunity if not already consummated or
implemented.
2.3 NUMBER TENURE AND QUALIFICATIONS. The number of Directors of the
Corporation shall be that number set forth in the Charter or such other number
as may be designated from time to time by resolution of a majority of the entire
Board of Directors; provided, however, that the number of Directors shall never
be more than the maximum number provided in the Charter nor less than the number
required by Section 2-402 of the Maryland General Corporation Law, as amended
from time to time, and further provided that the tenure of office of a Director
shall not be affected by any decrease in the number of Directors. Each Director
shall serve for the term set forth in the Charter and until his or her successor
is elected and qualified.
2.4 NOMINATION OF DIRECTORS
(a) Nominations of candidates for election as Directors of the Corporation
at any annual meeting of Stockholders may be made (i) by, or at the direction
of, a majority of the Board of Directors or (ii) by any holder of record (both
as of the time notice of such nomination is given by the Stockholder as set
forth below and as of the record date for the annual meeting in question) of any
shares of the Corporation's capital stock entitled to vote at such meeting who
complies with the procedures set forth in this Section 2.4. Any Stockholder who
seeks to make such a nomination, or his or her representative, must be present
in person at the annual meeting. Only persons nominated in accordance with the
procedures set forth in this Section 2.4 shall be eligible for election as
Directors at an annual meeting of Stockholders.
10
(b) Nominations, other than those made by, or at the direction of, the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the Corporation as set forth in this Section 2.4. For all annual
meetings prior to the initial public offering of common stock of the
Corporation, notice shall be timely if delivered to, or mailed and received at,
the principal executive office of the Corporation not later than the close of
business on the 20th calendar day (or if that day is not a business day for the
Corporation, the next business day) following the date on which notice of such
annual meeting is mailed or otherwise transmitted to Stockholders. For all
annual meetings subsequent to the initial public offering of common stock of the
Corporation, a Stockholder's notice shall be timely if delivered to, or mailed
and received at, the principal executive offices of the Corporation (i) not less
than 75 days nor more than 180 days prior to the Anniversary Date or (ii) in the
event that the annual meeting of Stockholders is called for a date more than 7
calendar days prior to the Anniversary date, not later than the close of
business on (A) the 20th calendar day (or if that day is not a business day for
the Corporation, on the next succeeding business day) following the earlier of
(1) the date on which notice of the date of such meeting was mailed to
Stockholders or (2) the date on which the date of such meeting was publicly
disclosed or (B) if such date of notice or public disclosure occurs more than 75
calendar days prior to the scheduled date of such meeting, then the later of (1)
the 20th calendar day (or if that day is not a business day for the Corporation,
on the next succeeding business day) following the date of the first to occur of
such notice or public disclosure or (2) the 75th calendar day prior to such
scheduled date of such meeting (or if that day is not a business day for the
Corporation, on the next succeeding business day).
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(c) A Stockholder's notice of nomination shall set forth as to each person
the Stockholder proposes to nominate for 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 for the past five years, (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 notice, (iv) such nominee's written
consent to be named in the proxy statement as a nominee and to serve as a
Director if elected, (v) whether such Director is an Independent Director (as
defined in the Charter) and (vi) any other information relating to such person
that is required to be disclosed in solicitations of proxies with respect to
nominees for election as may be deemed necessary or desirable by the
Corporation's counsel, in the exercise of his or her discretion. Notice by a
Stockholder shall, in addition to the above-referenced information, set forth as
to the Stockholder giving the notice (A) 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;
(B) the name and address of other Stockholders known by such Stockholder to be
supporting such nominees on the date of such Stockholder's notice; (C) the class
and number of shares of the Corporation's capital stock which are beneficially
owned by such Stockholder and such beneficial owners (if any) on the date of
such Stockholder's notice; and (D) the class and number of shares of the
Corporation's capital stock which are beneficially owned by any other
Stockholders known by such Stockholder to be supporting such nominees on the
date of such Stockholder's 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 any annual meeting shall furnish to the Secretary of the
Corporation that information which would be required to be set forth in a
Stockholder's notice of nomination of such nominee.
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(d) 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 2.4. If the Board of Directors, or a designated committee thereof,
determines that a nomination made by any Stockholder was not timely made in
accordance with the terms of this section, such nomination shall not be
considered at the annual meeting in question. If the Board of Directors, or a
designated committee thereof, determines that the information provided in a
Stockholder's notice does not satisfy the informational requirements of this
Section 2.4 in any material respect, the Secretary of the Corporation shall
promptly notify such Stockholder of the deficiency in the notice. Such
Stockholder shall have an opportunity to cure the deficiency by providing
additional information to the Secretary within the period of time, not to exceed
5 days from the date such deficiency notice is given to such Stockholder,
determined by the Board of Directors or such committee. If the deficiency is not
cured within such period, or if the Board of Directors or such committee
determines that the additional information provided by such Stockholder,
together with the information previously provided, does not satisfy the
requirements of this Section 2.4 in any material respect, such nomination shall
not be considered at the annual meeting in question.
(e) Notwithstanding the procedures set forth in the preceding paragraph, if
neither the Board of Directors nor a designated committee thereof makes a
determination as to the validity of any nominations by any Stockholder as set
forth above, the presiding Officer of the Stockholders' meeting shall determine
and declare at the Stockholders' meeting whether a nominations as made in
accordance with the terms of this Section 2.4. If the presiding Officer
determines that a nomination was not made in accordance with the terms of this
Section 2.4, such
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nomination shall be disregarded, and the Board of Directors shall make all
Director nominations on behalf of the Corporation.
2.5 ANNUAL AND REGUALR MEETINGS. An annual meeting of the Board of
Directors may be held immediately after and at the same place as the annual
meeting of Stockholders, or at such other time and place, either within or
without the State of Maryland, as is selected by resolution of the Board of
Directors, and no notice other than this Bylaw of such resolution shall be
necessary. The Board of Directors may provide, by resolution, the time and
place, either within or without the State of Maryland, for the holding of
regular meetings of the Board of Directors without other notice than such
resolution.
2.6 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by or at the request of the Chairman of the Board, the President or a
majority of the Directors then in office. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the State of Maryland, as the place for holding any special meeting
of the Board of Directors called by them.
2.7 NOTICE. Notice of any special meeting to be provided herein shall be
given, in accordance with Article VIII, by written notice delivered personally,
telegraphed or telecopied to each director at his or her business or residence
at least twenty-four (24) hours, or by mail at least five (5) days, prior to the
meeting. Neither the business to be transacted at, nor the purpose of, any
annual, regular or special meeting of the Board of Directors need be specified
in the notice, unless specially required by statute, the Charter or these
Bylaws.
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2.8 QUORUM. A majority of the Board of Directors then in office shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors. If less than a majority of the Board of Directors is present at
said meeting, a majority of the Directors present may adjourn the meeting from
time to time without further notice.
2.9 VOTING. The act of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors, unless the
concurrence of a greater proportion is required for such action by applicable
statute, the Charter or these Bylaws; provided, however, that (1) no act
relating to any matter in which a Director (or affiliate of such Director) has
any interest shall be the act of the Board of Directors unless such act has been
approved by a majority of the Board of Directors that includes a majority of the
disinterested Directors and (2) commencing on the Initial Public Offering Date
(as defined in the Charter) no decision by the Corporation whether to issue
shares of Common Stock (as defined in the Charter) or to pay cash in exchange
for partnership units of First Industrial, L.P. shall be the act of the Board of
Directors unless such act has been approved by a majority of the Independent
Directors (as defined in the Charter).
2.10 CHAIRMAN OF THE BOARD. The Board of Directors may appoint a Chairman
of the Board. The Chairman of the Board shall not be an officer of the Company,
but may sign and execute all authorized bonds, contracts or other obligations in
the name of the Corporation, except in cases where the execution thereof shall
be expressly delegated by the Board of Directors or by these Bylaws to some
other Officer or agent of the Corporation or shall be required by law to be
otherwise signed or executed.
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2.11 CONDUCT OF MEETINGS. All meetings of the Board of Directors shall be
called to order and presided over by the Chairman of the Board or, in the
absence of the Chairman of the Board, by the President (if a member of the Board
of Directors) or, in the absence of the Chairman of the Board and the President,
by a member of the Board of Directors selected by the members present. The
Secretary of the Corporation, or in the absence of the Secretary, any Assistant
Secretary, shall act as secretary at all meetings of the Board of Directors, and
in the absence of the Secretary and Assistant secretaries, the presiding Officer
of the meeting shall designate any person to act as secretary of the meeting.
Members of the Board of Directors may participate in meetings of the Board of
Directors by 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 all purposes of these Bylaws.
2.12 RESIGNATIONS. Any Directors may resign from the Board of Directors or
any committee thereof at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of the receipt of notice of such resignation by the President or the
Secretary.
2.13 REMOVAL OF DIRECTORS.Except as may otherwise be provided in the MGCL
and only for so long as the MGCL may otherwise provide, and consistent with the
Charter, the Stockholders may, at any time, remove any Director, but only for
cause, by the affirmative vote of a majority of all the votes entitled to be
cast on a matter, and may elect a successor to fill any resulting vacancy for
the balance of the term of the removed Director. Cause for removal shall be
deemed to exist only if the director whose removal is proposed has
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been convicted of a felony by a court of competent jurisdiction or has been
adjudged by a court of competent jurisdiction to be liable for gross negligence
or misconduct in the performance of such director's duty to the corporation and
such adjudication is no longer subject to direct appeal.
2.14 VACANCIES. The Stockholders may elect a successor to fill a vacancy on
the Board of Directors which results from the removal of a Director.
Furthermore, any vacancy occurring on the Board of Directors for any cause other
than by reason of an increase in the number of Directors may be filled by a
majority vote of the remaining Directors, although such majority is less than a
quorum. Any vacancy occurring on the Board of Directors by reason of an increase
in the number of Directors may be filled by a majority vote of the entire Board
of Directors. A Director elected by the Board of Directors to fill a vacancy
shall hold office until the next annual meeting of Stockholders and until his or
her successor is elected and qualifies.
2.15 INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting,
if a consent in writing to such action is signed by all of the Directors and
such written consent is filed with the minutes of the Board of Directors.
Consents may be signed by different Directors on separate counterparts.
2.16 COMPENSATION. An annual fee for services and payment for expenses of
attendance at each meeting of the Board of Directors, or of any committee
thereof, may be allowed to any Director by resolution of the Board of Directors.
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ARTICLE III
COMMITTEES
3.1 NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint
from among its members an Executive Committee and other committees, composed of
two or more Directors, to serve at the pleasure of the Board of Directors;
provided, however, that the Board of Directors will appoint to the Corporation's
Audit Committee only Independent Directors (as defined in the Charter).
3.2 DELEGATION OF PWOER. The Board of Directors may delegate to these
committees in the intervals between meetings of the Board of Directors any of
the powers of the Board of Directors to manage the business and affairs of the
Corporation, except those powers which the Board of Directors is specifically
prohibited from delegating pursuant to Section 2-411(a)(2) of the Maryland
General Corporation Law.
3.3 QUORUM AND VOTING. A majority of the members of any committee shall
constitute a quorum for the transaction of business by such committee, and the
act of a majority of the quorum shall constitute the act of the committee.
3.4 CONDUCT OF MEETINGS. Each committee shall designate a presiding Officer
of such committee, and if such Officer is not present at a particular meeting,
the committee shall select a presiding Officer for such meeting. Members of any
committee may participate in meetings of such committee by 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
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person at such meeting for all purposes of these Bylaws. Each committee shall
keep minutes of its meetings, and report the results of any proceedings at the
next succeeding annual or regular meeting of the Board of Directors.
3.5 INFORMAL ACTION BY COMMITTEES. Any action required or permitted to be
taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a written consent to such action is signed by all members
of the committee and such written consent is filed with the minutes of
proceedings of such committee. Consents may be signed by different members on
separate counterparts.
ARTICLE IV
OFFICERS
4.1 TITLES AND ELECTION. The Corporation shall have a President, Secretary
and Treasurer to comply with MGCL ss.2-412(a), and such other Officers as the
Board of Directors, or any committee or Officer appointed by the Board of
Directors for such purpose, may from time to time elect. The Officers of the
Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of
Stockholders. If the election of Officers shall not be held at such meeting,
such election shall be held as soon thereafter as may be convenient. Each
Officer shall hold office until his successor is duly elected and qualified or
until his death, resignation or removal in the manner hereinafter proved. Any
two or more offices except President and Vice President may be held by the same
person. Election or appointment of an Officer or agent shall not of itself
create contract rights between the Corporation and such Officer or agent.
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4.2 REMOVAL. Any Officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person
removed. The fact that a person is elected to an office, whether or not for a
specified term, shall not by itself constitute any undertaking or evidence of
any employment obligation of the Corporation to that person.
4.3 OUTSIDE ACTIVITIES. The Officers and agents of the Corporation are
required to spend only such time managing the business and affairs of the
Corporation as is necessary to carry out their duties in accordance with the law
and these Bylaws. The Officers and agents of the Corporation may engage with or
for others in business activities of the types conducted by the Corporation.
Except as set forth in the Charter or by separate agreement, none of such
individuals has an obligation to notify or present to the Corporation or each
other any investment opportunity that may come to such person's attention even
though such investment might be within the scope of the Corporation's purposes
or various investment objectives. Any interest (including any interest within
the meaning of Section 2-419(a) of the Maryland General Corporation Law as if
the Officer or agent were a Director of the Corporation) that an Officer or an
agent has in any investment opportunity presented to the Corporation must be
disclosed by such Officer or agent to the Board of Directors (and, if voting
thereon, to the Stockholders or to any committee of the Board of Directors)
within ten (10) days after the later of the date upon which such Officer or
agent becomes aware of such interest or the date upon which such Officer or
agent becomes aware that the Corporation is considering such investment
opportunity. If such interest comes to the attention of the interested Officer
or agent after a vote to take such
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investment opportunity, the voting body shall be notified of such interest and
shall reconsider such investment opportunity if not already consummated or
implemented.
4.4 VACANCIES. A vacancy in any office may be filled by the Board of
Directors for the unexpired portion of the term.
4.5 PRESIDENT. Unless the Board of Directors shall otherwise determine, the
President shall be the Chief Executive Officer and general manager of the
Corporation and shall in general supervise and control all of the business and
affairs of the Corporation. In the absence of the Chairman of the Board, the
President shall preside at all meetings of the Stockholders and of the Board of
Directors (if a member of the Board of Directors). The President may sign any
deed, mortgage, bond, contract or other instruments on behalf of the Corporation
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other Officer or agent of the
Corporation or shall be required by law to be otherwise signed or executed. In
general, the President shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board of Directors
from time to time.
4.6 CHIEF OPERATING OFFICER. The Board of Directors may appoint a Chief
Operating Officer. In the absence of the President or in the event of a vacancy
in such office, the Chief Operating Officer shall perform the duties of the
President and when so acting shall have all the powers of and be subject to all
the restrictions upon the President. The Chief Operating Officer may sign any
deed, mortgage, bond, contract or other instruments on behalf of the Corporation
except in cases where the execution thereof shall be expressly delegated by the
21
Board of Directors or by these Bylaws to some other Officer or agent of the
Corporation or shall be required by law to be otherwise signed or executed. In
general, the Chief Operating Officer shall perform all duties incident to the
office of Chief Operating Officer and such other duties as may be prescribed by
the Board of Directors from time to time.
4.7 CHIEF FINANCIAL OFFICER. The Board of Directors may appoint a Chief
Financial Officer. In general, the Chief Financial Officer shall perform all
duties incident to the office of Chief Financial Officer and such other duties
as may be prescribed by the Board of Directors from time to time.
4.8 VICE PRESIDENTS. The Board of Directors may appoint one or more Vice
President. In the absence of both the President and the Chief Operating Officer
or in the event of a vacancy in both such offices, the Vice President (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated at the time of their election or, in the absence of any designation,
then in the order of their election) shall perform the duties of the President
and when so acting shall have all the powers of and be subject to all the
restrictions upon the President. Every Vice President shall perform such other
duties as from time to time may be assigned to him or her by the President or
the Board of Directors.
4.9 SECRETARY. The Secretary shall (i) keep the minutes of the proceedings
of the Stockholders and Board of Directors in one or more books provided for
that purpose; (ii) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (iii) be custodian of the
corporate records of the Corporation; (iv) unless a transfer agent is appointed,
keep a register of the post office address of each Stockholder that shall be
furnished to
22
the Secretary by such Stockholder and have general charge of the Stock Ledger of
the Corporation; (v) when authorized by the Board of Directors or the President,
attest to or witness all documents requiring the same; (vi) perform all duties
as from time to time may be assigned to him or her by the President or by the
Board of Directors; and (vii) perform all the duties generally incident to the
office of secretary of a corporation.
4.10 TREASURER. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at the regular meetings of the Board
of Directors or whenever they may require it, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation. The
Board of Directors may engage a custodian to perform some or all of the duties
of the Treasurer, and if a custodian is so engaged then the Treasurer shall be
relieved of the responsibilities set forth herein to the extent delegated to
such custodian and, unless the Board of Directors otherwise determines, shall
have general supervision over the activities of such custodian. The custodian
shall not be an Officer of the Corporation.
4.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Board of Directors
may appoint one or more Assistant Secretaries or Assistant Treasurers. The
Assistant Secretaries (i) when authorized by the Board of Directors or the
President, shall have
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the power to attest to or witness all documents requiring the same and (ii)
shall perform such duties as shall be assigned to them by the Secretary or by
the President or the Board of Directors. The Assistant Treasurers shall perform
such duties as shall be assigned to them by the Treasurer or by the President or
the Board of Directors.
4.12 OTHER OFFICERS. The Corporation shall have such other Officers as the
Board of Directors may from time to time elect. Each such Officer shall hold
office for such period and perform such duties as the Board of Directors, the
President or any designated committee or Officer may prescribe.
4.13 SALARIES. The salaries, if any, of the Officers shall be fixed from
time to time by the Board of Directors. No Officer shall be prevented from
receiving such salary, if any, by reason of the fact that he or she is also a
Director of the Corporation.
ARTICLE V
SHARES OF STOCK
5.1 NO CERTIFICATES FOR STOCK. Unless the Board of Directors authorizes the
issuance of certificates pursuant to Section 5.2, none of the Stock shall be
represented by certificates.
5.2 ELECTION TO ISSUE CERTIFICATES. The Board of Directors may authorize
the issuance of certificates representing some or all of the Shares of any or
all of the classes or series of Stock. If the Board of Directors so authorizes
certificates, such certificates shall be of such form, not inconsistent with the
Charter, as shall be approved by the Board of Directors. All certificates, if
issued, shall be signed by the Chairman of the Board, the President
24
or a Vice President and countersigned by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary. Any signature or counter-signature may
be either a manual or facsimile signature. All certificates, if issued, for each
class of stock shall be consecutively numbered.
5.3 STOCK LEDGER. The Corporation shall maintain at its principal executive
office, at the office of its counsel, accountants or transfer agent or at such
other place designated by the Board of Directors an original or duplicate Stock
Ledger containing the names and addresses of all the Stockholders and the number
of shares of each class held by each Stockholder. The Stock Ledger shall be
maintained pursuant to a system that the Corporation shall adopt allowing for
the issuance, recordation and transfer of its Stock by electronic or other means
that can be readily converted into written form for visual inspection and not
involving any issuance of certificates. Such system shall include provisions for
notice to acquirers of Stock (whether upon issuance or transfer of stock) in
accordance with Sections 2-210 and 2-211 of the Maryland General Corporation
Law, and Section 8-408 of the Commercial Law Article of the State of Maryland.
The Corporation shall be entitled to treat the holder of record of any Share or
Shares 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 on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of the State of Maryland.
Until a transfer is duly effected on the Stock Ledger, the Corporation shall not
be affected by any notice of such transfer, either actual or constructive.
Nothing herein shall impose upon the Corporation, the Board of Directors or
Officers or their agents and representatives a duty or limit their rights to
inquire as to the actual ownership of Shares.
25
5.4 RECORDING TRANSFERS OF STOCK. If transferred in accordance with any
restrictions on transfer contained in the Charter, these Bylaws or otherwise,
Shares shall be recorded as transferred in the Stock Ledger upon provision to
the Corporation or the transfer agent of the Corporation of an executed stock
power duly guaranteed and any other documents reasonably requested by the
Corporation and the surrender of the certificate or certificates, if any,
representing such Shares. Upon receipt of such documents, the Corporation shall
issue the statements required by Sections 2-210 and 2-211 of the Maryland
General Corporation Law and Sections 8-408 of the Commercial Law Article of the
State of Maryland, issue as needed a new certificate or certificates (if the
transferred Shares were certificated) to the persons entitled thereto, cancel
any old certificates and record the transaction upon its books.
5.5 LOST CERTIFICATES. The Board of Directors may direct a new certificate
to be issued in the place of any certificate theretofore issued by the
Corporation alleged to have been stolen, lost or destroyed upon the making of an
affidavit of that fact by the person claiming the certificate of Stock to be
stolen, lost or destroyed. When authorizing such issue of a new certificate, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such stolen, lost or destroyed
certificate or his legal representative to advertise the same in such manner as
it shall require and/or to give bond, with sufficient surety, to the Corporation
to indemnify it against any loss or claim which may arise by reason of the
issuance of a new certificate.
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5.6 CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE
5.6.1 The Board of Directors may fix, in advance, a date as
the record date for the purpose of determining Stockholders entitled to notice
of, or to vote at, any meeting of Stockholders, or Stockholders entitled to
receive payment of any dividend or the allotment of any rights, or in order to
make a determination of Stockholders for any other proper purpose. Such date, in
any case, shall not be prior to the close of business on the day the record date
is fixed and shall be not more than sixty (60) days, and in case of a meeting of
Stockholders not less than ten (10) days, prior to the date on which the meeting
or particular action requiring such determination of Stockholders is to be held
or taken.
5.6.2 If, in lieu of fixing a record date, the stock transfer
books are closed by the Board of Directors in accordance with Section 2-511 of
the Maryland General Corporation Law for the purpose of determining Stockholders
entitled to notice of or to vote at a meeting of Stockholders, such books shall
be closed for at least ten (10), but not more than twenty (20) days immediately
preceding such meeting.
5.6.3 If no record date is fixed and the stock transfer books
are not closed for the determination of Stockholders, (a) the record date for
the determination of Stockholders entitled to notice of, or to vote at, a
meeting of Stockholders shall be at the close of business on the day on which
the notice of meeting is mailed or the 30th day before the meeting, whichever is
the closer date to the meeting; and (b) the record date for the determination of
Stockholders entitled to receive payment of a dividend or an allotment of any
rights shall be at the close of business on
27
the day on which the resolution of the Board of Directors declaring the dividend
or allotment of rights is adopted.
5.6.4 When a determination of Stockholders entitled to vote at
any meeting of Stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, except where the
determination has been made through the closing of the stock transfer books and
the stated period of closing has expired.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
6.1 DECLARATION. Dividends and other distributions upon the Stock may be
declared by the Board of Directors as set forth in the applicable provisions of
the Charter and any applicable law, at any meeting, limited only to the extent
of Section 2-311 of the Maryland General Corporation Law. Dividends and other
distributions upon the Stock may be paid in cash, property or Stock of the
Corporation, subject to the provisions of law and of the Charter.
6.2 CONTINGENCIES. Before payment of any dividends or other distributions
upon the Stock, there may be set aside (but there is no duty to set aside) out
of any funds of the Corporation available for dividends or other distributions
such sum or sums as the Board of Directors may from time to time, in its
absolute discretion, think proper as a reserve fund to meet contingencies, for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interests of
the Corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
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ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION TO THE EXTENT PERMITTED BY LAW. To the maximum extent
permitted by Maryland law in effect from time to time, the Corporation, without
requiring a preliminary determination of the ultimate entitlement to
indemnification, shall indemnify and shall pay or reimburse reasonable expenses
in advance of final disposition of a proceeding to (a) any individual who is a
present or former director or officer of the Corporation and who is made a party
to the proceeding by reason of his or her service in that capacity and (b) any
individual who, while a director or officer of the Corporation and at the
request of the Corporation, serves or has served another corporation,
partnership, joint venture, trust, employee benefit plan or any other enterprise
as a director, officer, partner or trustee of such corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise and who is made
a party to the proceeding by reason of his service in that capacity. The
Corporation may, with the approval of its Board of Directors, provide such
indemnification and advance for expenses to a person who served a predecessor of
the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Any person who may be entitled to indemnification pursuant to this Section 7.1
shall be referred to in these Bylaws as an "Indemnified Person".
Neither the amendment nor repeal of this Section 7.1, nor the adoption or
amendment of any other provision of the Bylaws or charter of the Corporation
inconsistent with this Section 7.1, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
29
7.2 INSURANCE. The Corporation shall have the power to purchase and
maintain insurance on behalf of any Indemnified Person against any liability,
whether or not the Corporation would have the power to indemnify him or her
against such liability.
7.3 NON-EXCLUSIVE RIGHT TO INDEMNITY; HEIRS AND PERSONAL REPRESENTATIVES.
The rights to indemnification set forth in this Article VII are in addition to
all rights to which any Indemnified Person may be entitled as a matter of law,
pursuant to a resolution of the Stockholders or disinterested Directors as
agreed or otherwise, and shall inure to the benefit of the heirs and personal
representatives of each Indemnified Person.
7.3 NO LIMITATION. In addition to any indemnification permitted by these
Bylaws, the Board of Directors shall, in its sole discretion, have the power to
grant such indemnification as it deems in the interest of the Corporation to the
full extent permitted by law. This Article shall not limit the Corporation's
power to indemnify against liabilities other than those arising from a person's
serving the Corporation as a Director or Officer.
ARTICLE VIII
NOTICES
8.1 NOTICES. Whenever notice is required to be given pursuant to these
Bylaws, it shall be construed to mean either written notice personally served
against written receipt or notice in writing transmitted by mail, by depositing
the same in a post office or letter box, in a post-paid sealed wrapper,
addressed, if to the Corporation, at 150 N. Wacker Drive, Chicago, Illinois
60606 (or any subsequent address selected by the Board of Directors), attention
President, or if to a Stockholder, Director or Officer, at the address of such
person as it appears
30
on the books of the Corporation or in default of any other address at the
general post office situated in the city or county of his or her residence.
Unless otherwise specified, notice sent by mail shall be deemed to be given at
the time mailed.
8.2 SECRETARY TO GIVE NOTICE. All notices required by law or these Bylaws
to be given by the Corporation shall be given by the Secretary or any other
Officer of the Corporation designated by the President. If the Secretary and
Assistant Secretary are absent or refuse or neglect to act, the notice may be
given by any person directed to do so by the President, or with respect to any
meeting called pursuant to these Bylaws upon the request of any Stockholders or
Directors, or by any person directed to do so by the Stockholders or Directors
upon whose request the meeting is called.
8.3 WAIVER OF NOTICE. Whenever any notice is required to be given pursuant
to the Charter or these Bylaws or pursuant to applicable law, a waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Neither the business to be transacted nor the purpose of
any meeting need be set forth in the waiver of notice, unless specifically
required by statute. The attendance of any person at any meeting shall
constitute a waiver of notice of such meeting, except where such person attends
a meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
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ARTICLE IX
MISCELLANEOUS
9.1 BOOKS AND RECORDS. The Corporation shall keep correct and complete
books and records of its account and transactions and minutes of the proceedings
of its Stockholders and Board of Directors and of its executive or other
committees when exercising any of the powers or authority of the Board of
Directors. The books and records of the Corporation may be in written form or in
any other form that may be converted within a reasonable time into written form
for visual inspection. Minutes shall be recorded in written form, but may be
maintained in the form of a reproduction.
9.2 INSPECTION OF BYLAWS AND CORPORATE RECORDS. These Bylaws, the
accounting books and records of the Corporation, the minutes of proceedings of
the Stockholders, the Board of Directors and committees thereof, annual
statements of affairs and voting trust agreements on record shall be open to
inspection upon written demand delivered to the Corporation by any Stockholder
or holder of a voting trust certificate at any reasonable time during usual
business hours, for a purpose reasonably related to such holders' interests as a
Stockholder or as the holder of such voting trust certificate, in each case to
the extent permitted by the Maryland General Corporation Law.
9.3 CONTRACTS. The Board of Directors may authorize any Officer(s) or
agent(s) to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
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9.4 CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such Officers or agents of the Corporation and in
such manner as shall from time to time be determined by resolution of the Board
of Directors.
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9.5 LOANS
9.5.1 Such Officers or agents of the Corporation as from time
to time have been designated by the Board of Directors shall have authority (i)
to effect loans, advances or other forms of credit at any time or times for the
Corporation, from such banks, trust companies, institutions, corporations, firms
or persons, in such amounts and subject to such terms and conditions, as the
Board of Directors from time to time has designated; (ii) as security for the
repayment of any loans, advance or other forms of credit so authorized, to
assign, transfer, endorse and deliver, either originally or in addition or
substitution, any or all personal property, real property, stocks, bonds,
deposits, accounts, documents, bills, accounts receivable and other commercial
paper and evidence of debt or other securities, or any rights or interests at
any time held by the Corporation; (iii) in connection with any loans, advances
or other forms of credit so authorized, to make, execute and deliver one or more
notes, mortgages, deeds of trust, financing statements, security agreements,
acceptances or written obligations of the Corporation, on such terms and with
such provisions as to the security or sale or disposition of them as those
Officers or agents deem proper; and (iv) to sell to, or discount or rediscount
with, the banks, trust companies, institutions, corporations, firms or persons
making those loans, advances or other forms of credit any and all commercial
paper, bills, accounts receivable, acceptances and other instruments and
evidences of debt at any time held by the Corporation, and, to that end, to
endorse, transfer and deliver the same.
9.5.2 From time to time the Corporation shall certify to each
bank, trust company, institution, corporation, firm or person so designated the
signatures of the Officers or agents so authorized. Each bank, trust company,
institution, corporation, firm or person so
34
designated is authorized to rely upon such certification until it has received
written notice that the Board of Directors has revoked the authority of those
Officers or agents.
9.6 FISCAL YEAR. The Board of Directors shall have the power, from time to
time, to fix the fiscal year of the Corporation by a duly adopted resolution,
and, in the absence of such resolution, the fiscal year shall be the period
ending December 31.
9.7 ANNUAL REPORT. Not later than 120 days after the close of each fiscal
year, the Board of Directors of the Corporation shall cause to be sent to the
Stockholders an Annual Report in such form as may be deemed appropriate by the
Board of Directors. The Annual Report shall include audited financial statements
and shall be accompanied by the report thereon of an independent certified
public accountant.
9.8 INTERIM REPORTS. The Corporation may send interim reports to the
Stockholders having such form and content as the Board of Directors deems
proper.
9.9 OTHER REPORTS. Any distributions to Stockholders of income or capital
assets shall be accompanied by a written statement disclosing the source of the
funds distributed unless at the time of distribution they are accompanied by a
written explanation of the relevant circumstances. The statement as to such
source shall be sent to Stockholders not later than sixty (60) days after the
close of the fiscal year in which the distributions were made.
9.10 BYLAWS SEVERABLE. The provisions of these Bylaws are severable, and if
any provision shall be held invalid or unenforceable, that invalidity or
unenforceability shall attach only to that provision and shall not in any manner
affect or render invalid or unenforceable
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any other provision of these Bylaws, and these Bylaws shall be carried out as if
the invalid or unenforceable provision were not contained herein.
ARTICLE X
AMENDMENT OF BYLAWS
10.1 BY DIRECTORS. The Board of Directors shall have the power, at any
annual or regular meeting, or at any special meeting if notice thereof is
included in the notice of such special meeting, to alter or repeal any Bylaws of
the Corporation and to make new Bylaws; provided, that no alteration or repeal
of Section 7.1 may affect the rights of any Indemnified Persons to
indemnification arising, and in connection with conduct, prior to such
amendment; and, provided, further, that the Board of Directors shall not alter
or repeal this Section 10.1 or Section 10.2.
10.2 BY STOCKHOLDERS. The Stockholders, by affirmative vote of a majority
of the shares of common stock of the Corporation, shall have the power, at any
annual meeting (subject to the requirements of Section 1.3), or at any special
meeting if notice thereof if included in the notice of such special meeting, to
alter or repeal any Bylaws of the Corporation and to make new Bylaws; provided,
that no alteration or repeal of Section 7.1 may affect the rights of any
Indemnified Person to indemnification arising, and in connection with conduct,
prior to such amendment; and, provided, further, that the Stockholders shall not
alter or repeal Section 10.1 or this Section 10.2.
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