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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
TRANSEASTERN PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Florida 59-2745379
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation)
3300 University Drive 33065
Suite 001 -----
Coral Springs, Florida (Zip code)
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(Address of principal executive offices)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1) please check the
following box. [ ]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2) please check the following. [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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None None
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Common Stock, par value $.01 per share
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A description of the Registrant's Common Stock, par value $.01 per
share, to be registered hereunder is set forth under the caption "Description of
Capital Stock" in the Registrant's Registration Statement on Form S-1
(Registration No. 333-10375), initially filed with the Securities and Exchange
Commission on August 16, 1996, which description is incorporated herein by
reference.
ITEM 2. EXHIBITS.
3.i Amended and Restated Articles of Incorporation of Registrant, as
amended*
3.ii Amended and Restated Bylaws of Registrant*
4.1 Form of Common Stock Certificate*
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* Filed only with NASDAQ National Market in accordance with Instruction
II to Form 8-A.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereto duly authorized.
TRANSEASTERN PROPERTIES, INC.
By:/s/ EDWARD FALCONE
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Edward Falcone,
Executive Vice President
Date: September 18, 1996
2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TRANSEASTERN PROPERTIES, INC.
PURSUANT TO SECTIONS 607.1006 AND 607.1007
OF THE FLORIDA BUSINESS CORPORATION ACT
Transeastern Properties, Inc., a Florida corporation (the
"Corporation"), hereby certifies that these Amended and Restated Articles of
Incorporation were duly adopted by the shareholders of the Corporation entitled
to vote thereon by written consent without a meeting, pursuant to Section
607.0704 of the Florida Business Corporation Act, on October 3, 1996.
ARTICLE I - NAME AND ADDRESS
The name of this corporation is Transeastern Properties, Inc. (the
"Corporation"). The address of the principal office and the mailing address of
this Corporation is 3300 University Drive, Suite 001, Coral Springs, Florida
33065.
ARTICLE II - PURPOSE
This Corporation is organized for the purpose of transacting any and
all lawful business for corporations organized under the Florida Business
Corporation Act.
ARTICLE III - CAPITAL STOCK
3.1 AUTHORIZED CAPITAL STOCK. The aggregate number of shares
which this Corporation shall have authority to issue is one hundred twenty
million (120,000,000) shares, consisting of (a) one hundred million
(100,000,000) shares of Common Stock, par value $0.01 per share (the "Common
Stock"); and (b) twenty million (20,000,000) shares of preferred stock, par
value $.01 per share (the "Preferred Stock"), issuable in one or more series as
hereinafter provided.
3.2 TERMS OF PREFERRED STOCK. Shares of Preferred Stock may be issued
from time to time in one or more series. The Board of Directors is authorized,
by resolution adopted and
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filed in accordance with law, to provide for the issue of such series of shares
of Preferred Stock. Each series of shares of Preferred Stock (a) may have such
voting powers, full or limited, or may be without voting powers; (b) may be
subject to redemption at such time or times and at such prices; (c) may be
entitled to receive dividends (which may be cumulative or non-cumulative) at
such rate or rates, on such conditions and at such times, and payable in
preference to, or in such relation to, the dividends payable on any other class
or classes or series of stock; (d) may have such rights upon the dissolution of,
or upon any distribution of the assets of, the Corporation; (e) may be made
convertible into, or exchangeable for, shares of any other class or classes or
of any other series of the same or any other class or classes of stock of the
Corporation or such other corporation or other entity at such price or prices or
at such rates of exchange and with such adjustments; (f) may be entitled to the
benefit of a sinking fund to be applied to the purchase or redemption of shares
of such series in such amount or amounts; (g) may be entitled to the benefit of
conditions and restrictions upon the creation of indebtedness of the Corporation
or any subsidiary, upon the issue of any additional shares (including additional
shares of such series or of any other series) and upon the payment of dividends
or the making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any outstanding shares of
the Corporation; and (h) may have such other relative, participating, optional
or other special rights, qualifications, limitations or restrictions thereof, in
each case as shall be stated in said resolution or resolutions providing for the
issue of such shares of Preferred Stock. Shares of Preferred Stock of any series
that have been redeemed or repurchased by the Corporation (whether through the
operation of a sinking fund or otherwise) or that, if convertible or
exchangeable, have been converted or exchanged in accordance with their terms
shall be retired and have the status of authorized and unissued shares of
Preferred Stock of the same series and may be reissued as a part of the series
of which they were originally a part or may, upon the filing of an appropriate
certificate with the Secretary of
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State of the State of Florida be reissued as part of a new series of shares of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors or as part of any other series of shares of Preferred Stock, all
subject to the conditions or restrictions on issuance set forth in the
resolution or resolutions adopted by the Board of Directors providing for the
issue of any series of shares of Preferred Stock.
ARTICLE IV - REGISTERED OFFICE AND AGENT
The street address of the registered office of this Corporation and the
name of the registered agent of this Corporation at such office are:
NAME ADDRESS
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CSC Network 1201 Hays Street
Tallahassee, Florida 32301
ARTICLE V - SPECIAL MEETINGS OF SHAREHOLDERS
The shareholders of this Corporation may only call a special meeting of
shareholders if the holders of at least 50% of the voting power of all of the
shares of the capital stock of the Corporation all of the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to this Corporation's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to be
held.
ARTICLE VI - BOARD OF DIRECTORS
6.1 FUNCTION. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
managed under the direction of, the Board of Directors. Directors must be
natural persons who are at least 18 years of age but need not be residents of
Florida or shareholders of the Corporation.
6.2 NUMBER OF DIRECTORS.
(i) The Board of Directors of the Corporation shall consist of
not less than four persons, the exact number to be determined from time to time
by resolution adopted
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by the affirmative vote of a majority of all directors of the Corporation then
holding office at any special or regular meeting. Any such resolution increasing
or decreasing the number of directors shall have the effect of creating or
eliminating a vacancy or vacancies, as the case may be, provided that no such
resolution shall reduce the number of directors below the number then holding
office and provided further that no such resolution may increase or decrease the
number of directors by more than 30% of the number of directors last approved by
the shareholders at any special or annual meeting of the shareholders of the
Corporation.
(ii) Commencing with the first annual meeting of shareholders of the
Corporation following the consummation of the initial offering and sale by the
Corporation of shares of its common stock pursuant to an effective registration
statement under the Securities Act of 1933, as amended, the Board of Directors
shall be divided into three (3) classes; designated Class I, Class II and Class
III, with each class having as nearly an equal number of directors as possible.
At the annual meeting, directors of Class I shall be initially elected to hold
office for a one-year term, directors of Class II shall be initially elected to
hold office for a two-year term, and directors of Class III shall be initially
elected to hold office for a three-year term with each director in each class to
hold office until his successor is elected and qualified, or until his earlier
resignation, removal from office or death. At each succeeding annual meeting of
shareholders beginning at the annual meeting after such first meeting, the
successors of the class of directors whose term expires at the meeting will be
elected to hold office for a term expiring at the annual meeting of shareholders
held in the third year following the year of their election or until their
successors are duly elected and qualified. The original allocation among the
three classes of directors elected at such first annual meeting shall be
determined by a resolution of the Board of Directors.
6.3 ELECTION OF DIRECTORS. Directors shall be elected at the annual
meeting of shareholders, but when the annual meeting is not held or directors
are not elected thereat, they
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may be elected at a special meeting called and held for that purpose. Directors
shall be elected by a plurality of the votes cast by the shares entitled to vote
in the election at a meeting at which a quorum is present.
6.4 VACANCIES. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled only by the Board of Directors (and not by the shareholders), by
resolution adopted by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors; provided,
however, that if not so filled, any such vacancy shall be filled by the
shareholders at the next annual meeting or at a special meeting called for that
purpose. Any director so elected or appointed shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred, as the case may be, and until
such director's successor is elected and qualified.
6.5 REMOVAL OF DIRECTORS. At a meeting of shareholders, any
director or the entire Board of Directors may be removed, solely with cause and
provided the notice of the meeting states that one of the purposes of the
meeting is the removal of the director. A director may be removed only if the
number of votes cast to remove him constitutes at least 66 2/3% of the voting
power of all of the shares of capital stock then entitled to vote generally in
the election of directors, voting together as a single class. For purposes of
this Section 6.5 of Article VI, "cause" shall mean the failure of a director to
substantially perform such director's duties to the Corporation (other than any
such failure resulting from incapacity due to physical or mental illness) or the
willful engaging by a director in gross misconduct injurious to the Corporation.
ARTICLE VII - INDEMNIFICATION
This Corporation shall indemnify any director, or any former director
of this Corporation, to the fullest extent permitted by law.
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ARTICLE VIII - BYLAWS
The Bylaws of the Corporation may be altered, amended or repealed, and
new Bylaws adopted, by the affirmative vote of at least a majority of the
members of the Board of Directors then in office or by the affirmative vote of
the holders of not less than 66 2/3% of the voting power of all shares of
capital stock of the Corporation then entitled to vote generally in the election
of directors, voting as a single class.
ARTICLE IX - AMENDMENT OF ARTICLES OF INCORPORATION
The Corporation hereby reserves the right from time to time to amend,
alter, change or repeal any provision contained in these Articles of
Incorporation in any manner permitted by law and all rights and powers conferred
upon shareholders, directors and officers herein are granted subject to this
reservation. In addition to any vote otherwise required by law, any such
amendment, alteration, change or repeal shall require approval of both (a) the
Board of Directors by the affirmative vote of a majority of the members then in
office and (b) the holders of a majority of the voting power of all the shares
of capital stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class; provided, however, that any
proposal to amend, alter, change or repeal the provisions of Article VI and this
Article IX shall require the affirmative vote of the holders of at least 66 2/3%
of the voting power of all the shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class.
IN WITNESS WHEREOF, the undersigned has executed these Amended and
Restated Articles of Incorporation on October 4, 1996.
___________________________________
Arthur Falcone,
President and Chairman of the Board
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ACCEPTANCE OF APPOINTMENT
OF
REGISTERED AGENT
I hereby accept the appointment as registered agent contained in the
foregoing Articles of Incorporation and state that I am familiar with and accept
the obligations of Section 607.0501 of the Florida Statutes.
By:__________________________________
Its Agent:___________________________
As Registered Agent:_________________
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AMENDED AND RESTATED BYLAWS
OF
TRANSEASTERN PROPERTIES, INC.,
A FLORIDA CORPORATION
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
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ARTICLE I MEETINGS OF SHAREHOLDERS.................................................... 1
Section 1. Annual Meeting.............................................................. 1
Section 2. Special Meeting............................................................. 1
Section 3. Place....................................................................... 2
Section 4. Notice...................................................................... 2
Section 5. Shareholder Quorum.......................................................... 2
Section 6. Shareholder Voting.......................................................... 3
Section 7. Fixing Record Dates......................................................... 3
Section 8. Proxies..................................................................... 3
Section 9. Action by Written Consent of Shareholders Without Meeting................... 3
Section 10. Notification of Nomination of Directors..................................... 4
Section 11. Notice of Business at Annual Meetings....................................... 5
ARTICLE II DIRECTORS................................................................... 6
Section 1. Function.................................................................... 6
Section 2. Compensation................................................................ 6
Section 3. Presumption of Assent....................................................... 6
Section 4. Number of Directors......................................................... 6
Section 5. Election of Directors....................................................... 7
Section 6. Vacancies................................................................... 7
Section 7. Removal of Directors........................................................ 7
Section 8. Quorum and Transaction of Business.......................................... 7
Section 9. Place of Meeting............................................................ 8
Section 10. Time, Notice and Call of Meetings........................................... 8
Section 11. Action Without a Meeting.................................................... 8
ARTICLE III COMMITTEES........................................................................... 9
Section 1. Executive Committee......................................................... 9
Section 2. Meetings of Executive Committee............................................. 9
Section 3. Other Committees............................................................ 9
ARTICLE IV OFFICERS............................................................................. 10
Section 1. General Provisions.......................................................... 10
Section 2. Term of Office.............................................................. 10
Section 3. Chairman of the Board....................................................... 10
Section 4. Chief Executive Officer..................................................... 10
Section 5. President................................................................... 10
Section 6. Chief Operating Officer..................................................... 11
Section 7. Vice President.............................................................. 11
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Section 8. Secretary................................................................... 11
Section 9. Treasurer................................................................... 11
Section 10. Assistant and Subordinate Officers; Special
Officers to the Chairman of the Board................................................ 12
Section 11. Duties of Officers May be Delegated......................................... 12
ARTICLE V SHARE CERTIFICATE AND SEAL.................................................. 12
Section 1. Form and Execution.......................................................... 12
Section 2. Registration of Transfer.................................................... 13
Section 3. Lost, Stolen or Destroyed Certificates...................................... 13
Section 4. Seal........................................................................ 13
ARTICLE VI DISTRIBUTIONS........................................................................ 13
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................. 13
Section 1. Fiscal Year................................................................. 13
Section 2. Resignation................................................................. 14
Section 3. Voting Upon Stocks of Other Corporations.................................... 14
ARTICLE VIII CORPORATE RECORDS, SHAREHOLDERS'
INSPECTION RIGHTS; FINANCIAL INFORMATION............................................. 14
Section 1. Corporate Records........................................................... 14
Section 2. Shareholders' Inspection Rights............................................. 15
Section 3. Financial Statements for Shareholders....................................... 15
Section 4. Other Reports to Shareholders............................................... 16
ARTICLE IX INDEMNIFICATION...................................................................... 16
Section 1. Right to Indemnification.................................................... 16
Section 2. Advancement of Expenses..................................................... 17
Section 3. Procedure for Indemnification and Obtaining
Advancement of Expenses.............................................................. 17
Section 4. Other Rights, Continuation of Right to
Indemnification and Advancements..................................................... 17
Section 5. Insurance................................................................... 18
Section 6. Savings Clause.............................................................. 18
Section 7. Terms....................................................................... 18
ARTICLE X AMENDMENT................................................................... 19
</TABLE>
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ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the date, time and place
designated by the Board of Directors.
SECTION 2. SPECIAL MEETING.
(a) Special meetings of the shareholders shall be held when directed by
the Chairman of the Board or the Board of Directors or when requested in writing
by shareholders holding at least 50% of the voting power of all of the
corporation's capital stock having the right and entitled to vote at such
meeting. The call for the meeting shall be issued by the secretary, unless the
Chairman of the Board, the Board of Directors or the shareholders requesting the
calling of the meeting designate another person to do so. Only business within
the purposes described in the notice required in Section 4 of this Article I may
be conducted at a special shareholders' meeting.
(b) Any shareholder of record seeking to have the shareholders request
a special meeting may, by written notice to the secretary, request the Board of
Directors to fix a record date pursuant to Section 7 of this Article I. The
Board of Directors shall promptly, but in all events within 10 business days
after the date upon which such a request is received, adopt resolutions fixing
the record date. In the event of the delivery, in the manner provided by Section
7 of this Article I, to the corporation of such a request or requests and/or any
related revocation or revocations, the corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the requests and revocations.
Every written request for a special meeting shall set forth the purpose or
purposes for which the special meeting is requested, the name and address, as
they appear in the corporation's books, of each shareholder making the request,
the class and number of shares of the corporation which are owned of record by
each such shareholder, and shall bear the date of signature of each such
shareholder. No such request shall be effective to request such a meeting
unless, within 60 days of any record date established in accordance with Section
7 of this Article I, a written request signed by a sufficient number of record
holders as of such date to request a special meeting in accordance with Section
2(a) of this Article I and, if applicable, the Articles of Incorporation are
delivered to the corporation in the manner prescribed in this Article I. For the
purposes of permitting a prompt ministerial review by the independent
inspectors, no request by shareholders for a special meeting shall be effective
until such date as the independent inspectors certify to the corporation that
the requests delivered to the corporation in accordance with this Article I
represent at least the minimum number of shares that would be necessary to
request such meeting. Within 10 business days after the independent inspectors
deliver such a certified report to the corporation, the Board of Directors shall
adopt a resolution calling a special meeting of the shareholders and fixing a
record date for such meeting in accordance with Section 7 of this Article I. In
setting a meeting date, the Board of Directors may consider such factors as it
deems relevant within the good faith exercise of its business judgment
including, without limitation, the nature of the action proposed
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to be taken, the facts and circumstances surrounding the request, and any plan
of the Board of Directors to call a special or annual meeting of shareholders
for the conduct of related business. Nothing contained in this section shall in
any way be construed to suggest or imply that the Board of Directors or any
shareholder shall not be entitled to contest the validity of any request or
revocation thereof, or to take any other action (including, without limitation,
the commencement, prosecution or defense of any litigation with respect
thereto).
SECTION 3. PLACE. Meetings of the shareholders shall be held at the
principal office of the corporation or as determined by the Chairman of the
Board, unless otherwise designated by resolution from time to time by the Board
of Directors.
SECTION 4. NOTICE. A written notice of each meeting of shareholders,
signed by the secretary, president or the person authorized to call the meeting,
shall be mailed to each shareholder having the right and entitled to vote at the
meeting at the address as it appears on the records of the corporation, not less
than 10 nor more than 60 days before the date set for the meeting. The notice
shall state the time and place the meeting is to be held. A notice of a special
meeting shall also state the purposes of the meeting. A notice of meeting shall
be sufficient for that meeting and any adjournment of it. If a shareholder
transfers any shares after the notice is sent, it shall not be necessary to
notify the transferee. All shareholders may waive notice of a meeting before, at
or after the meeting.
SECTION 5. SHAREHOLDER QUORUM. Except as otherwise required by law, or
by the Articles of Incorporation, a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
shareholders. Any number of shareholders, even if less than a quorum, may
adjourn the meeting from time to time and place to place without further notice
until a quorum is obtained. Except as otherwise required by law, or by the
Articles of Incorporation, a majority of the outstanding shares entitled to vote
on a matter shall be present, in person or by proxy, at all meetings of the
shareholders to constitute a quorum for the transaction of business on such
matter, except to adjourn. When a specified item of business is required to be
voted on separately by a particular class or series of stock, the presence of a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If less than a
quorum of shares entitled to vote on a matter, as above defined, shall be
present at the time and place for which a meeting shall be called, the Chairman
of the Board, chief executive officer or secretary or the holders of a majority
of the shares represented may adjourn any such meeting from time to time without
notice other than by announcement at such meeting, until the number of shares
requisite to constitute a quorum shall be present. At any adjourned meeting at
which a quorum, as above defined, shall be present, in person or by proxy, any
business may be transacted which might have been transacted at the meeting as
originally called. Once a share is represented for any purpose at a meeting, it
is deemed present for quorum purposes for the remainder of the meeting and for
any adjournment of that meeting unless a new record date is or must be set for
that adjourned meeting.
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SECTION 6. SHAREHOLDER VOTING. If a quorum is present, action on a
matter is approved and shall be the act of the shareholders if the votes cast
favoring the action exceed the votes cast against the action, except as
otherwise provided in Section 6 of Article II or the Articles of Incorporation
or as required by law. Except as otherwise provided in the Articles of
Incorporation or as required by law, each outstanding share shall be entitled to
one vote on each matter submitted to a vote at a meeting of shareholders. The
books of record of shareholders shall be produced at a shareholders' meeting
upon the request of any shareholder.
SECTION 7. FIXING RECORD DATES. For the purpose of determining
shareholders entitled (a) to notice of or to vote at any meeting of shareholders
or any adjournment thereof, (b) to request a special meeting of shareholders
pursuant to Section 2 of this Article I, (c) to act by written consent, (d) to
receive payment of any dividend, or (e) to make a determination of shareholders
for any other proper purpose, the Board of Directors shall have the power to fix
a date, not more than 60 days (or such longer period as may be permitted by
current or future law) prior to the date on which the particular action
requiring a determination of shareholders is to be taken, as the record date for
any such determination of shareholders. A record date for the determination of
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof shall not be a date less than 10 days prior to such
meeting. In setting a record date, whether in response to a request from a
shareholder or otherwise, the Board of Directors may consider such factors as it
deems relevant within the good faith exercise of its business judgment
including, without limitation, the nature of the action proposed to be taken,
the facts and circumstances surrounding the request, and any plan of the Board
of Directors to call a special or annual meeting of shareholders for the conduct
of related business. In any case where a record date is set under any provision
of this Article I, only shareholders of record on the record date shall be
entitled to participate in the action for which the determination of
shareholders of record is made, and, if the record date is set for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, only such shareholders of record shall be entitled to such notice
or vote, notwithstanding any transfer of any shares on the books of the
corporation after such record date.
SECTION 8. PROXIES. A shareholder entitled to vote at any meeting of
shareholders or any adjournment thereof may vote in person or by proxy executed
in writing and signed by the shareholder or his attorney-in-fact. The
appointment of proxy will be effective when received by the corporation's
secretary or other officer or agent authorized to tabulate votes. If a proxy
designates two or more persons to act as proxies, a majority of these persons
present at the meeting, or if only one is present, that one, has all of the
powers conferred by the instrument upon all the persons designated unless the
instrument otherwise provides. No proxy shall be valid more than 11 months after
the date of its execution unless a longer term is expressly stated in the proxy.
SECTION 9. ACTION BY WRITTEN CONSENT OF SHAREHOLDERS WITHOUT MEETING.
Any shareholder of record seeking to have the shareholders authorize or take
corporate action by written consent may, by written notice to the secretary,
request the Board of Directors to fix a record date pursuant to Section 7 of
this Article I. The Board of Directors shall promptly, but
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in all events within 10 business days after the date on which such a request is
received, adopt a resolution fixing the record date. In the event of the
delivery, in the manner provided by this Section, to the corporation of a
consent or consents by shareholders to action without a meeting and/or any
related revocation or revocations, the corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and revocations.
For the purpose of permitting a prompt ministerial review by the independent
inspectors, no consent by shareholders to action without a meeting shall be
effective until such date as the independent inspectors certify to the
corporation that the consents delivered to the corporation represent at least
the minimum number of shares that would be necessary to take action without a
meeting. Nothing contained in this Section 9 shall in any way be construed to
suggest or imply that the Board of Directors or any shareholder shall not be
entitled to contest the validity of any consent or revocation thereof, or to
take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto). Within 10 days
after obtaining an authorization of an action by written consent, notice shall
be given to those shareholders who have not consented in writing or who are not
entitled to vote on the action. The notice shall fairly summarize the material
features of the authorized action. If the action creates dissenters' rights, the
notice shall contain a clear statement of the right of dissenting shareholders
to be paid the fair value of their shares upon compliance with and as provided
for by the Florida Business Corporation Act.
SECTION 10. NOTIFICATION OF NOMINATION OF DIRECTORS. Nominations for
election to the Board of Directors of the corporation at a meeting of
shareholders may be made by the Board of Directors or by any shareholder of the
corporation entitled to vote for the election of directors at such meeting who
complies with the notice procedures set forth in this Section 10. Such
nominations, other than those made by or on behalf of the Board of Directors,
may be made only if notice in writing is personally delivered to, or mailed by
first class United States mail, postage prepaid, and received by, the secretary
not less than 60 days nor more than 90 days prior to such meeting; PROVIDED,
HOWEVER, that if less than 70 days' notice or prior public disclosure of the
date of the meeting is given to shareholders, such nomination shall have been
mailed by first class United States mail, postage prepaid, and received by, or
personally delivered to, the secretary not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
meeting was mailed or such public disclosure was made, whichever occurs first.
Such notice shall set forth (a) as to each proposed nominee (i) the name, age,
business address and, if known, residence address of each such nominee, (ii) the
principal occupation or employment of each such nominee, (iii) the number of
shares, if any, of stock of the corporation that are beneficially owned by each
such nominee and (iv) any other information concerning the nominee that must be
disclosed in proxy solicitations pursuant to the proxy rules of the Securities
and Exchange Commission if such person had been nominated, or was intended to be
nominated, by the Board of Directors (including such person's written consent to
be named as a nominee and to serve as a director if elected); and (b) as to the
shareholder giving the notice (i) the name and address, as it appears on the
corporation's books, of such shareholder, (ii) a representation that such
shareholder is a holder of record of shares of stock of the corporation entitled
to vote at the meeting and the class and number of shares of
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the corporation which are beneficially owned by such shareholder, (iii) a
representation that such shareholder intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice and (iv) a
description of all arrangements or understandings between such shareholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
shareholder. The corporation also may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as a director of the
corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting, and that the defective nomination shall be disregarded.
SECTION 11. NOTICE OF BUSINESS AT ANNUAL MEETINGS. At an annual meeting
of the shareholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or (c) otherwise properly brought before the meeting by a
shareholder. For business to be properly brought before an annual meeting by a
shareholder, if such business relates to the election of directors of the
corporation, the procedures in Section 10 of this Article I must be complied
with. If such business relates to any other matter, the shareholder must have
given timely notice thereof in writing to the secretary. To be timely, a
shareholder's notice must be personally delivered to, or mailed by first class
United States mail, postage prepaid, and received by, the secretary not less
than 60 days not more than 90 days prior to such meeting; PROVIDED, HOWEVER,
that if less than 70 days' notice or prior public disclosure of the date of the
meeting is given to shareholders, such notice, to be timely, must have been
mailed by first class United States mail, postage prepaid, and received by, or
personally delivered to, the secretary not later than the close of business on
the tenth (10th) day following the day on which notice of the date of the
meeting was mailed or such public disclosure was made, whichever occurs first. A
shareholder's notice to the secretary shall set forth as to each matter the
shareholder proposes to bring before the annual meeting (i) a brief description
of the business 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 books, of the shareholder proposing such
business, (iii) a representation that the shareholder is a holder of record of
shares of stock of the corporation entitled to vote at the meeting and the class
and number of shares of the corporation which are beneficially owned by the
shareholder and (iv) any material interest of the shareholder in such business.
Notwithstanding anything in these Amended and Restated Bylaws (the "Bylaws") to
the contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 11 and except that any
shareholder proposal which complies with Rule 14a-8 of the proxy rules (or any
successor provision) promulgated under the Securities Exchange Act of 1934, as
amended, as is to be
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included in the corporation's proxy statement for an annual meeting of
shareholders shall be deemed to comply with the requirements of this Section 11.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and the business not properly
brought before the meeting shall be disregarded.
ARTICLE II
DIRECTORS
SECTION 1. FUNCTION. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the Board of Directors. Directors must be
natural persons who are at least 18 years of age but need not be residents of
Florida or shareholders of the corporation.
SECTION 2. COMPENSATION. The directors, as such, shall be entitled to
receive such reasonable compensation for their services as may be fixed from
time to time by resolution of the Board of Directors. In addition, the directors
may be reimbursed for expenses of attending meetings of the Board of Directors
and committees thereof. Nothing herein contained shall be construed to preclude
any director from serving the corporation in any other capacity and receiving
compensation therefor. Members of the executive committee or of any standing or
special committee of the Board of Directors may by resolution of the Board be
allowed such compensation for their services as the Board of Directors may deem
reasonable, and additional compensation may be allowed to directors for special
services rendered.
SECTION 3. PRESUMPTION OF ASSENT. A director who is present at a
meeting of the Board of Directors or a committee 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 he objects at the beginning of the meeting (or
promptly upon arriving) to the holding of the meeting or transacting the
specified business at the meeting, or if the director votes against the action
taken or abstains from voting because of an asserted conflict of interest.
SECTION 4. NUMBER OF DIRECTORS.
(a) The Board of Directors of the corporation shall consist of not less
than four persons, the exact number to be determined from time to time by
resolution adopted by the affirmative vote of a majority of all directors of the
corporation then holding office at any special or regular meeting. Any such
resolution increasing or decreasing the number of directors shall have the
effect of creating or eliminating a vacancy or vacancies, as the case may be,
provided that no such resolution shall reduce the number of directors below the
number then
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holding office and provided further that no such resolution may increase or
decrease the number of directors by more than 30% of the number of directors
last approved by the shareholders at any special or annual meeting of the
shareholders of the corporation.
(b) Commencing with the first annual meeting of shareholders of the
Corporation following the consummation of the initial offering and sale by the
Corporation of shares of its common stock pursuant to an effective registration
statement under the Securities Act of 1933, as amended, the Board of Directors
shall be divided into three (3) classes; designated Class I, Class II and Class
III, with each class having as nearly an equal number of directors as possible.
At the annual meeting, directors of Class I shall be initially elected to hold
office for a one-year term, directors of Class II shall be initially elected to
hold office for a two-year term, and directors of Class III shall be initially
elected to hold office for a three-year term with each director in each class to
hold office until his successor is elected and qualified, or until his earlier
resignation, removal from office or death. At each succeeding annual meeting of
shareholders beginning at the annual meeting after such first meeting, the
successors of the class of directors whose term expires at the meeting will be
elected to hold office for a term expiring at the annual meeting of shareholders
held in the third year following the year of their election or until their
successors are duly elected and qualified. The original allocation among the
three classes of directors elected at such first annual meeting shall be
determined by a resolution of the Board of Directors.
SECTION 5. ELECTION OF DIRECTORS. Directors shall be elected at the
annual meeting of shareholders, but when the annual meeting is not held or
directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Directors shall be elected by a plurality of
the votes cast by the shares entitled to vote in the election at a meeting at
which a quorum is present.
SECTION 6. VACANCIES. Any vacancy occurring in the Board of Directors,
including a vacancy created by an increase in the number of directors, may be
filled only by the Board of Directors (and not by the shareholders), by
resolution adopted by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors; provided,
however, that if not so filled, any such vacancy shall be filled by the
shareholders at the next annual meeting or at a special meeting called for that
purpose. Any director so elected or appointed shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred, as the case may be, and until
such director's successor is elected and qualified.
SECTION 7. REMOVAL OF DIRECTORS. At a meeting of shareholders, any
director or the entire Board of Directors may be removed, solely with cause and
provided the notice of the meeting states that one of the purposes of the
meeting is the removal of the director. A director may be removed only if the
number of votes cast to remove him constitutes at least 66 2/3% of the voting
power of all of the shares of capital stock then entitled to vote generally in
the election of directors, voting together as a single class. For purposes of
this Section 7 of Article II, "cause" shall mean the failure of a director to
substantially perform such director's duties to
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the corporation (other than any such failure resulting from incapacity due to
physical or mental illness) or the willful engaging by a director in gross
misconduct injurious to the corporation.
SECTION 8. QUORUM AND TRANSACTION OF BUSINESS. A majority of the number
of directors fixed pursuant to these Bylaws shall constitute a quorum for the
transaction of business, except that a majority of the directors in office shall
constitute a quorum for filling a vacancy on the Board. Whenever less than a
quorum is present at the time and place appointed for any meeting of the Board,
a majority of those present may adjourn the meeting from time to time and place
to place, until a quorum shall be present and no notice of any such adjourned
meeting shall be required. 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.
SECTION 9. PLACE OF MEETING. Regular and special meetings of the Board
of Directors shall be held at the principal office of the corporation or as
determined by the Chairman of the Board, unless otherwise designated by
resolution from time to time by the Board of Directors.
SECTION 10. TIME, NOTICE AND CALL OF MEETINGS. Regular meetings of the
Board of Directors shall be held without notice at the time and on the date
designated by resolution of the Board of Directors. Meetings of the Board of
Directors may be called by the Chairman of the Board. Upon determining the need
for a special meeting, the Chairman of the Board shall direct the secretary of
the corporation to provide written notice of the time, date and place of such
special meeting of the Board of Directors to each director by personal delivery,
mail delivery or by facsimile at least two but not more than 15 days before the
meeting. Notice of a meeting of the Board of Directors need not be given to a
director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting constitutes a waiver of notice of that
meeting and waiver of all objections to the place of the meeting, the time of
the meeting, and the manner in which it has been called or convened, except when
a director states at the beginning of the meeting or promptly upon arrival at
the meeting, objection to the transaction of business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors must be
specified in the notice or waiver of notice of the meeting. A majority of the
directors present, whether or not a quorum exists, may adjourn any meeting of
the Board of Directors to another time and place. Notice of an adjourned meeting
shall be given to the directors who were not present at the time of the
adjournment and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other directors. Members of the
Board of Directors (and any committee of the Board) may participate in a meeting
of the Board (or committee) by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time. Participation by these means
constitutes presence in person at a meeting.
SECTION 11. ACTION WITHOUT A MEETING. Any action required to be taken
at a meeting of the Board of Directors (or a committee of the Board), and any
action which may be taken at a meeting of the Board of Directors (or a committee
of the Board) may be taken without a meeting if a consent in writing, setting
forth the action to be taken and signed by all of the
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directors (or members of the committee), is filed in the minutes of the
proceedings of the Board of Directors. The action taken shall be deemed
effective when the last director signs the consent, unless the consent specifies
otherwise.
ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may from time to
time, by resolution passed by a majority of the whole Board, create an executive
committee of three or more directors, the members of which shall be elected by
the Board of Directors to serve at the pleasure of the Board. If the Board of
Directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own members. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the Board of
Directors, possess and may exercise all of the powers of the Board of Directors
in the management of the business and affairs of the corporation, other than
that of filling vacancies among the directors or in any committee of the
directors and except as required by law. The executive committee shall keep full
records and accounts of its proceedings and transactions. All action by the
executive committee shall be reported to the Board of Directors at its meeting
next succeeding such action and shall be subject to control, revision and
alteration by the Board of Directors, provided that no rights of third persons
shall be prejudicially affected thereby. Vacancies in the executive committee
shall be filled by the directors, and the directors may appoint one or more
directors as alternate members of the committee who may take the place of any
absent member or members at any meeting.
SECTION 2. MEETINGS OF EXECUTIVE COMMITTEE. Subject to the provisions
of these Bylaws, the executive committee shall fix its own rules of procedure
and shall meet as provided by such rules or by resolutions of the Board of
Directors, and it shall also meet at the call of the Chairman of its Board, the
chairman of the executive committee or any two members of the committee. Unless
otherwise provided by such rules or by such resolutions, the provisions of
Section 11 of Article II relating to the notice required to be given for
meetings of the Board of Directors shall also apply to meetings of the executive
committee. A majority of the executive committee shall be necessary to
constitute a quorum.
SECTION 3. OTHER COMMITTEES. The Board of Directors may by resolution
provide for such other standing or special committees as it deems desirable, and
discontinue the same at its pleasure. Each such committee shall have such powers
and perform such duties, not inconsistent with law, as may be delegated to it by
the Board of Directors. The provisions of Section 1 and Section 2 of this
Article shall govern the appointment and action of such committee so far as
consistent, unless otherwise provided by the Board of Directors. Vacancies in
such committees shall be filled by the Board of Directors or as the Board of
Directors may provide.
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ARTICLE IV
OFFICERS
SECTION 1. GENERAL PROVISIONS. The Board of Directors shall appoint a
Chairman of the Board of Directors, a chief executive officer, a chief operating
officer, a president, such number of vice presidents, if any, as the Board may
from time to time determine, a secretary and a treasurer. The Board of Directors
may from time to time create such offices and appoint such other officers,
subordinate officers and assistant officers as it may determine. The Chairman of
the Board, shall be, but the other officers need not be, chosen from among the
members of the Board of Directors. Any two of such offices, other than those of
president and vice president, may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity.
SECTION 2. TERM OF OFFICE. The officers of the corporation shall hold
office at the pleasure of the Board of Directors, and, unless sooner removed by
the Board of Directors, until the annual meeting of the Board of Directors
following the date of their appointment and until their successors are chosen
and qualified. The Board of Directors may remove any officer at any time, with
or without cause. A vacancy in any office created shall be filled by the Board
of Directors.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the Board of Directors and meetings of shareholders
and shall be the senior officer of the corporation and, subject to the control
of the Board of Directors, shall exercise supervision over the management of the
business of the corporation. He shall have authority to sign all certificates
for shares and all deeds, mortgages, bonds, agreements, notices, and other
instruments requiring his signature; and shall have all the powers and duties
prescribed by the Florida Business Corporation Act and such others as the Board
of Directors may from time to time assign to him.
SECTION 4. CHIEF EXECUTIVE OFFICER. The chief executive officer shall
exercise supervision over the management of the business of the corporation and
its several officers, subject, however, to the oversight of the Chairman of the
Board. In the absence of the Chairman of the Board, he shall preside at meetings
of the shareholders. He shall have authority to sign all certificates for shares
and all deeds, mortgages, bonds, agreements, notices, and other instruments
requiring his signature; and shall have all the powers and duties prescribed by
the Florida Business Corporation Act and such others as the Board of Directors
may from time to time assign to him.
SECTION 5. PRESIDENT. The president shall exercise supervision over the
business of the corporation and over its several officers, subject, however, to
the oversight of the Chairman of the Board and the chief executive officer. In
the absence of the Chairman of the Board and chief executive officer, he shall
preside at meetings of the shareholders. He shall have authority
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to sign all certificates for shares and all deeds, mortgages, bonds, agreements,
notices, and other instruments requiring his signature; and shall have all the
powers and duties prescribed by the Florida Business Corporation Act and such
others as the Board of Directors may from time to time assign to him.
SECTION 6. CHIEF OPERATING OFFICER. The chief operating officer shall
exercise supervision over the business of the corporation and over its several
officers, subject, however, to the oversight of the Chairman of the Board, the
chief executive officer and the president. In the absence of the Chairman of the
Board, chief executive officer and president, he shall preside at meetings of
the shareholders. He shall have authority to sign all deeds, mortgages, bonds,
agreements, notices, and other instruments requiring his signature; and shall
have all the powers and duties prescribed by the Florida Business Corporation
Act and such others as the Board of Directors may from time to time assign to
him.
SECTION 7. VICE PRESIDENT. The vice presidents shall have such powers
and duties as may from time to time be assigned to them by the Board of
Directors or the president. At the request of the president, or in the case of
his absence or disability, the vice president designated by the president (or in
the absence of such designation, the vice president designated by the Board)
shall perform all the duties of the president and, when so acting, shall have
all the powers of the president. The authority of vice presidents to sign in the
name of the corporation certificates for shares and deeds, mortgages, bonds,
agreements, notes and other instruments shall be coordinate with like authority
of the president.
SECTION 8. SECRETARY. The secretary shall keep minutes of all the
proceedings of the shareholders and the Board of Directors and shall make proper
record of the same, which shall be attested by him; shall have authority to
execute and deliver certificates as to any of such proceedings and any other
records of the corporation; shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes and other instruments
to be executed by the corporation which require his signature; shall give notice
of meetings of shareholders and directors; shall produce on request at each
meeting of shareholders a certified list of shareholders arranged in
alphabetical order; shall keep such books and records as may be required by law
or by the Board of Directors; and, in general, shall perform all duties incident
to the office of secretary and such other duties as may from time to time be
assigned to him by the Board of Directors or the president.
SECTION 9. TREASURER. The treasurer shall have general supervision of
all finances of the corporation; he shall be in charge of all money, bills,
notes, deeds, leases, mortgages and similar property belonging to the
corporation, and shall do with the same as may from time to time be required by
the Board of Directors. He shall cause to be kept adequate and correct accounts
of the business transactions of the corporation, including accounts of its
assets, liabilities, receipts, disbursements, gains, losses, stated capital and
shares, together with such other accounts as may be required; and he shall have
such other powers and duties as may from time to time be assigned to him by the
Board of Directors or the president.
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SECTION 10. ASSISTANT AND SUBORDINATE OFFICERS; SPECIAL OFFICERS TO THE
CHAIRMAN OF THE BOARD. The Board of Directors may appoint such assistant and
subordinate officers as it may deem desirable, and the Chairman of the Board may
appoint such assistant or special officers as he may deem desirable. Each such
officer shall hold office at the pleasure of the Board of Directors, in the case
of an officer appointed by the Board of Directors, or the Chairman of the Board,
in the case of an officer appointed by the Chairman of the Board, and perform
such duties as the Board of Directors, in the case of an officer appointed by
the Board of Directors, or the Chairman of the Board, in the case of an officer
appointed by the Chairman of the Board, may prescribe. The Board of Directors
may, from time to time, authorize any officer to appoint and remove subordinate
officers, to prescribe their authority and duties, and to fix their
compensation.
SECTION 11. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence of any
officer of the corporation, or for any other reason the Board of Directors may
deem sufficient, the Board of Directors may delegate, for such period of time as
the Board of Directors deem appropriate, the powers or duties, or any of them,
of such officers to any other officer or to any director.
ARTICLE V
SHARE CERTIFICATE AND SEAL
SECTION 1. FORM AND EXECUTION. Certificates for shares, certifying the
number of fully-paid shares owned, shall be issued to each shareholder in such
form as shall be approved by the Board of Directors. Such certificates shall be
signed by the Chairman of the Board or the president or a vice president and by
the secretary or the treasurer; provided, however, that if such certificates are
countersigned by a transfer agent and/or registrar the signatures of any of said
officers and the seal of the corporation upon such certificates may be
facsimiles, engraved, stamped or printed. If any officer or officers who shall
have signed, or whose facsimile signature shall have been used, printed or
stamped on any certificate or certificates for shares, shall cease to be such
officer or officers, because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the corporation, such
certificate or certificates, if authenticated by the endorsement thereon of the
signature of a transfer agent or registrar, shall nevertheless be conclusively
deemed to have been adopted by the corporation by the use and delivery thereof
and shall be as effective in all respects as though signed by a duly elected,
qualified and authorized officer or officers, and as though the person or
persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be an
officer or officers of the corporation. The failure of the corporation to note
upon a certificate a restriction on the transfer of shares imposed or which may
be imposed by law, contract or otherwise, shall not be deemed to imply that such
shares are free of any such restriction or create in favor of the person to whom
such certificate is issued, or any successor, assign, devise or heir of such
recipient, any cause of action of any nature against the corporation.
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SECTION 2. REGISTRATION OF TRANSFER. Any certificate for shares of the
corporation shall be transferable (subject to any applicable restrictions
imposed or which may be imposed by law, contract or otherwise) in person or by
attorney upon the surrender thereof to the corporation or any transfer agent
therefor (for the class of shares represented by the certificate surrendered)
properly endorsed for transfer and accompanied by such assurances as the
corporation or such transfer agent may require as to the genuineness and
effectiveness of each necessary endorsement.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation
shall, upon the authorization of the Chairman of the Board, the secretary or
such other person as is authorized by resolution of the Board of Directors,
issue a new stock certificate in the place of any certificate previously issued
if the holder of record of the certificate (a) makes proof in affidavit form
that it has been lost, destroyed or wrongfully taken; (b) requests the issue of
a new certificate before the corporation has notice that the certificate has
been acquired by a purchaser for value in good faith and without notice of any
adverse claim; (c) gives bond in such form as the corporation may direct to
indemnify the corporation and any transfer agent and registrar against any claim
that may be made on account of the alleged loss, destruction, or theft of a
certificate; and (d) satisfies any other reasonable requirements imposed by the
corporation.
SECTION 4. SEAL. The corporate seal shall be circular in form and
include the name of the corporation.
ARTICLE VI
DISTRIBUTIONS
The Board of Directors may, from time to time, declare distributions to
its shareholders in cash, property, or its own shares, unless the distribution
would cause (i) the corporation to be unable to pay its debts as they become due
in the usual course of business, or (ii) the corporation's assets to be less
than its liabilities plus the amount necessary, if the corporation were
dissolved at the time of the distribution, to satisfy the preferential rights of
shareholders whose rights are superior to those receiving the distribution. The
shareholders and the corporation may enter into an agreement requiring the
distribution of corporate profits, subject to the provisions of applicable law.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall be as
specified by the Board of Directors.
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SECTION 2. RESIGNATION. Any director or officer of the corporation may
resign his office at any time upon presenting his written resignation to the
Board of Directors, the Chairman of the Board, the chief executive officer, the
chief operating officer, the president or the secretary, and, unless some time
be fixed in such resignation as the date upon which it is to become effective,
the same shall become effective immediately upon presentation. The acceptance of
a resignation shall not be required to make it effective, unless otherwise so
stated in such resignation, and in that event it shall become effective at the
pleasure of the Board.
SECTION 3. VOTING UPON STOCKS OF OTHER CORPORATIONS. Unless otherwise
ordered by the Board of Directors, the Chairman of the Board, the chief
executive officer, the chief operating officer, or the president shall, in the
order above stated, have full power and authority on behalf of the corporation
to attend, act and vote at any meeting or meetings of shareholders of any
corporation in which this corporation may hold stock or other securities, and at
any such meeting shall possess and may exercise on behalf of the corporation any
and all of the rights and powers incident to the ownership of such stock or
other securities. The person having the power and authority as set forth above
may in his discretion delegate same to another person that he designates to act
on behalf of the corporation at any given meeting. The Board of Directors, by
resolution, may from time to time confer like powers upon any other person or
persons.
ARTICLE VIII
CORPORATE RECORDS; SHAREHOLDERS'
INSPECTION RIGHTS; FINANCIAL INFORMATION
SECTION 1. CORPORATE RECORDS.
(a) The corporation shall keep as permanent records minutes of all
meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by a committee of the Board of Directors on behalf of the
corporation.
(b) The corporation shall maintain accurate accounting records and a
record of its shareholders in a form that permits preparation of a list of the
names and addresses of all shareholders in alphabetical order by class of shares
showing the number and series of shares held by each.
(c) The corporation shall keep a copy of: its articles or restated
articles of incorporation and all amendments to them currently in effect; these
Bylaws or restated Bylaws and all amendments currently in effect; resolutions
adopted by the Board of Directors creating one or more classes or series of
shares and fixing their relative rights, preferences, and limitations, if shares
issued pursuant to those resolutions are outstanding; the minutes of all
shareholders' meetings and records of all actions taken by shareholders without
a meeting for the past three years; written communications to all shareholders
generally or all shareholders of
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a class of series within the past three years, including the financial
statements furnished for the last three years; a list of names and business
street addresses of its current directors and officers; and its most recent
annual report delivered to the Department of State.
(d) The corporation shall maintain its records in written form or in
another form capable of conversion into written form within a reasonable time.
SECTION 2. SHAREHOLDERS' INSPECTION RIGHTS. A shareholder is entitled
to inspect and copy, during regular business hours at the corporation's
principal office, any of the corporate records described in Section 1(c) of this
Article if the shareholder gives the corporation written notice of the demand at
least 5 business days before the date on which he wishes to inspect and copy the
records.
A shareholder is entitled to inspect and copy, during regular business
hours at a reasonable location specified by the corporation, any of the
following records of the corporation if the shareholder gives the corporation
written notice of this demand at least 5 business days before the date on which
he wishes to inspect and copy provided (a) the demand is made in good faith and
for a proper purpose; (b) the shareholder describes with reasonable
particularity the purpose and the records he desires to inspect; and (c) the
records are directly connected with the purpose: (i) excerpts from minutes of
any meeting of the Board of Directors, records of any action of a committee of
the Board of Directors while acting in place of the Board on behalf of the
corporation; (ii) accounting records; (iii) the record of shareholders; and (iv)
any other books and records of the corporation.
This Section 2 does not affect the right of a shareholder to inspect
and copy the shareholders' list described in Section 6 of Article I, if the
shareholder is in litigation with the corporation to the same extent as any
other litigant or the power of a court to compel the production of corporate
records for examination.
The corporation may deny any demand for inspection if the demand was
made for an improper purpose, or if the demanding shareholder has within the two
years preceding his demand, sold or offered for sale any list of shareholders of
the corporation or of any other corporation, has aided or abetted any person in
procuring any list of shareholders for that purpose, or has improperly used any
information secured through any prior examination of the records of this
corporation or any other corporation.
SECTION 3. FINANCIAL STATEMENTS FOR SHAREHOLDERS. Unless modified by
resolution of the shareholders within 120 days after the close of each fiscal
year, the corporation shall furnish its shareholders with annual financial
statements which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of cash flows for that year. If financial statements are prepared for
the corporation on the basis of generally accepted accounting principles, the
annual financial statements must also be prepared on that basis.
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If the annual financial statements are reported upon by a public
accountant, his report must accompany them. If not, the statements must be
accompanied by a statement of the chief financial officer or the person
responsible for the corporation's accounting records stating his reasonable
belief whether the statements were prepared on the basis of generally accepted
accounting principles and, if not, describing the basis of preparation and
describing any respects in which the statements were not prepared on a basis of
accounting consistent with the statements prepared for the preceding year.
The corporation shall mail the annual financial statements to each
shareholder within 120 days after the close of each fiscal year or within such
additional time thereafter as is reasonably necessary to enable the corporation
to prepare its financial statements. Thereafter, on written request from a
shareholder who was not mailed the statements, the corporation shall mail him
the latest annual financial statements.
SECTION 4. OTHER REPORTS TO SHAREHOLDERS. If the corporation indemnifies or
advances expenses to any director, officer, employee or agent otherwise than by
court order or action by the shareholders or by an insurance carrier pursuant to
insurance maintained by the corporation, the corporation shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next annual shareholders' meeting, or prior to the meeting if the
indemnification or advance occurs after the giving of the notice but prior to
the time the annual meeting is held. This report shall include a statement
specifying the persons paid, the amounts paid, and the nature and status at the
time of such payment of the litigation or threatened litigation.
If the corporation issues or authorizes the issuance of shares for
promises to render services in the future, the corporation shall report in
writing to the shareholders the number of shares authorized or issued, and the
consideration received by the corporation, with or before the notice of the next
shareholders' meeting.
ARTICLE IX
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person (including here and
hereinafter, the heirs, executors, administrators, or estate of such person) (i)
who is or was a director or officer of the corporation, (ii) who is or was an
agent or employee of the corporation other than an officer and as to whom the
corporation has agreed to grant such indemnity, or (iii) who is or was serving
at the request of the corporation as its representative in the position of
director, officer, agent or employee of another corporation, partnership, joint
venture, trust or other enterprise and as to whom the corporation has agreed to
grant such indemnity shall be indemnified by the corporation as of right to the
fullest extent permitted or authorized by current or future legislation or by
current or future judicial or administrative decision (but, in the case of any
such future legislation or decision, only to the extent that it permits the
corporation to
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provide broader indemnification rights than permitted prior to such legislation
or decision), against any liability or expense, awarded or assessed against him,
or incurred by him, in his capacity as such director, officer, agent, employee
or representative, or arising out of his status as such director, officer,
agent, employee, or representative, including (in the case of derivative
actions) expenses and amounts paid by him in settlement of any proceeding
asserted or brought against him in his aforesaid capacity or arising out of his
status as such.
SECTION 2. ADVANCEMENT OF EXPENSES. Expenses incurred by a person referred
to in Section 1 of this Article IX in defending a civil or criminal proceeding
shall be paid by the corporation in advance of the final disposition of such
proceeding, (i) upon receipt, in the case of a director or officer, of an
undertaking by or on behalf of the director or officer to repay all amounts so
advanced if he is ultimately found not to be entitled to be indemnified by the
corporation pursuant to this Article IX, and (ii) upon satisfaction of such
other conditions as are required by current or future legislation (but, with
respect to future legislation, only to the extent that it provides conditions
less burdensome to the director, officer, employee, agent or representative, and
to the corporation, than those provided previously). Such expenses incurred by
other employees, agents and representatives may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and upon approval of such
director, officer, employee, agent or representative of the corporation,
authorize the corporation's counsel to represent such person, in any proceeding,
whether or not the corporation is a party to such proceeding.
SECTION 3. PROCEDURE FOR INDEMNIFICATION AND OBTAINING ADVANCEMENT OF
EXPENSES. Any indemnification of liabilities and expenses or advancement of
expenses under this Article shall be made promptly, and in any event within 60
days, upon the written request of the director, officer, employee, agent or
representative seeking indemnification or an advancement. If the corporation
denies such request in whole or in part or if no disposition thereof is made
within 60 days of its receipt of such request or if the corporation otherwise
fails to provide indemnification or advancement provided for in this Article IX,
and despite any contrary determination by the corporation (including its Board
of Directors or a committee thereof, its independent legal counsel or its
shareholders) in the specific case, a director, officer, employee, agent or
representative may apply for indemnification or advancement, or both, in an
appropriate proceeding brought in a court of competent jurisdiction and shall be
entitled to such indemnification or advancement, or both, as the court shall by
order direct. Such person's reasonable expenses in obtaining court-ordered
indemnification or advancement shall be reimbursed by the corporation. No such
contrary determination by the corporation (including the Board of Directors or a
committee thereof, its independent legal counsel or its shareholders) shall be a
defense to such proceeding or create a presumption that the claimant has not met
the applicable standard of conduct, if any, for indemnification or an
advancement.
SECTION 4. OTHER RIGHTS, CONTINUATION OF RIGHT TO INDEMNIFICATION AND
ADVANCEMENTS. The indemnification and advancements provided by this Article
shall not be deemed exclusive of any other or further rights to which a person
seeking indemnification or advancements may be entitled under any law (common or
statutory), agreement, vote of
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shareholders or disinterested directors or otherwise, either as to action taken
or omitted to be taken in his official capacity or as to action taken or omitted
to be taken in another capacity while holding office or while employed by or
acting as agent for the corporation. All rights to indemnification and to
advancements of expenses under this Article shall be deemed to be a contract
between the corporation and each director, officer, employee, agent or
representative of the corporation described in Section 1 of this Article who
serves or has served in any such capacity at any time while this Article is in
effect.
Any repeal or modification of this Article IX, or any repeal or
modification of relevant provisions of the Florida Business Corporation Act or
any other applicable law, shall not in any way diminish any right to
indemnification or to advancement of expenses of such director, officer,
employee, agent or representative, or the obligations of the corporation,
arising hereunder.
SECTION 5. INSURANCE. The corporation may purchase and maintain insurance,
at its expense, to protect itself and any person who is or was or has agreed to
become a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him or on
his behalf in any such capacity, or arising out of his status as such, whether
or not the corporation would have the legal power to directly indemnify him
against such liability.
SECTION 6. SAVINGS CLAUSE. If this Article IX or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and officer, and each
employee, agent and representative of the corporation described in Section 1 of
this Article IX, as to liabilities and expenses, and amounts paid in settlement
with respect to any proceeding, including any action by or in the right of the
corporation, to the full extent permitted by any applicable portion of this
Article IX that shall not have been invalidated and to the full extent permitted
by applicable law.
SECTION 7. TERMS. For purposes of this Article IX, the term "other
enterprises" includes employee benefit plans; the term "expenses" includes
counsel fees, including those for appeal; the term "liability' includes
obligations to pay a judgment, settlement, penalty, fine (including an excise
tax assessed with respect to any employee benefit plan), and expenses actually
and reasonably incurred with respect to a proceeding; the term "proceeding"
includes any threatened, pending, or completed action, suit, or other type of
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal; the term "agent" includes a volunteer; and the term
"serving at the request of the corporation" includes any service as a director,
officer, employee or agent of the corporation that imposes duties on such
persons, including duties relating to an employee benefit plan and its
participants or beneficiaries.
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ARTICLE X
AMENDMENT
These Bylaws may be altered, amended or repealed, and new Bylaws
adopted, by the affirmative vote of at least a majority of the members of the
Board of Directors then in office or by the affirmative vote of the holders of
not less than 66 2/3% of the voting power of all shares of capital stock of the
corporation then entitled to vote generally in the election of directors, voting
as a single class.
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