U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF
THE SECURITIES EXCHANGE ACT OF 1934
TRAVEL SERVICES INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in Its Charter)
FLORIDA 65-0871073
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
220 CONGRESS PARK DRIVE
DELRAY BEACH, FLORIDA 33445
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (561) 266-0860
Securities to be registered under 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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____________________________ _____________________________________
____________________________ _____________________________________
Securities to be registered pursuant to Section 12 (g) of the Act:
COMMON STOCK, $0.01 PAR VALUE PER SHARE
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(Title of Class)
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(Title of Class)
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REINCORPORATION OF TRAVEL SERVICES INTERNATIONAL, INC. FROM DELAWARE TO FLORIDA
This registration statement on Form 10 (the "Registration Statement")
is filed by the Registrant (also referred to herein as "TSI Florida" and the
"Corporation") in connection with the reincorporation (the "Reincorporation") of
Travel Services International, Inc., a Delaware corporation ("TSI Delaware"),
from Delaware to Florida. The Registrant is a wholly owned subsidiary of TSI
Delaware. TSI Delaware and TSI Florida will cause the Reincorporation to occur,
as further described below, on or about the time that this Registration
Statement becomes effective under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (the date of the Reincorporation shall be referred
to herein as the "Effective Date").
On the Effective Date, TSI Delaware and TSI Florida will file, as
applicable, a certificate of merger with the State of Delaware and articles of
merger with the State of Florida in order to consummate the Reincorporation in
accordance with the terms of an Agreement and Plan of Merger, dated as of
October 29, 1998 (the "Plan of Merger"), among TSI Delaware and the Registrant.
Pursuant to the Plan of Merger, TSI Delaware will be merged with and into TSI
Florida (the "Merger") with TSI Florida being the surviving corporation and the
separate corporate existence of TSI Delaware shall cease. Pursuant to the
Merger, TSI Florida will change its name to "Travel Services International,
Inc."
As a result of the Merger, TSI Florida will succeed by operation of law
to all of the assets, rights, powers and property of TSI Delaware and will
assume all of the debts, liabilities and obligations of TSI Delaware. Upon
completion of the Merger, the Board of Directors of TSI Florida will be
comprised of the directors of TSI Delaware with identical terms of office, and
the persons who are currently serving as executive officers of TSI Delaware will
continue to serve in the same capacities for TSI Florida.
On the Effective Date of the Merger, each outstanding share of
restricted voting common stock, par value $0.01 par value per share, of TSI
Delaware (the "TSI Delaware Restricted Stock"), will be automatically converted
into one fully-paid and nonassessable share of the restricted voting common
stock, par value $0.01 per share, of TSI Florida (the "TSI Florida Restricted
Stock"), and each outstanding share of non-restricted common stock, par value
$0.01 per share, of TSI Delaware (the "TSI Delaware Non-restricted Stock" and
together with TSI Delaware Restricted Stock, the "TSI Delaware Common Stock)
will be automatically converted into one fully-paid and nonassessable share of
the non-restricted common stock, par value $0.01 per share, of TSI Florida (the
"TSI Florida Non-restricted Stock" and together with the TSI Florida Restricted
Stock, the "TSI Florida Common Stock").
After the Merger, each outstanding certificate representing shares of
TSI Delaware Common Stock will continue to represent the same respective number
of shares of TSI Florida Common Stock and such certificates will be deemed for
all corporate purposes to evidence ownership of shares of TSI Florida Common
Stock. The TSI Florida Common Stock will be substituted for TSI Delaware Common
Stock on The Nasdaq Stock Market ("Nasdaq") and will continue to trade under the
symbol "TRVL" without interruption, and Nasdaq will consider the delivery of
existing stock certificates of TSI Delaware as constituting "good delivery" of
shares of TSI Florida in stock transactions effected after the Merger. TSI
Delaware stockholders will
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not be required to undertake a mandatory exchange of their certificates
for shares of TSI Delaware Common Stock for certificates of TSI Florida Common
Stock.
The Registrant's predecessor corporation, TSI Delaware, will have
securities registered pursuant to Section 12(g) of the Exchange Act at the
effective time of the Merger. The Registrant is filing this Form 10 for the
purpose of accomplishing such registration pursuant to Section 12(g) of the Act
with respect to the TSI Florida Common Stock.
ITEM 1. BUSINESS.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions "Risk Factors" and "Business"
contained in TSI Delaware's Registration Statement on Form S-1 (SEC File No.
333-56567).
ITEM 2. FINANCIAL INFORMATION.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions (i) "Item 2. Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in TSI Delaware's Form 10-Q for the quarter ended June 30, 1998, which
was filed with the SEC on August 14, 1998; and (ii) "Selected Historical and Pro
Forma Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" contained in TSI Delaware's Registration
Statement on Form S-1 (SEC File No. 333-56567).
ITEM 3. PROPERTIES.
The Registrant incorporates herein by reference the information and
discussion under the caption "Business -- Facilities" contained in TSI
Delaware's Registration Statement on Form S-1 (SEC File No. 333-56567).
ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The Registrant incorporates herein by reference the information,
discussion and related matters under the caption "Principal and Selling
Stockholders" contained in TSI Delaware's Registration Statement on Form S-3
(SEC File No. 333-61337).
ITEM 5. DIRECTORS AND EXECUTIVE OFFICERS.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions "Management -- Directors and
Executive Officers" and "Management -- Board of Directors" contained in TSI
Delaware's Registration Statement on Form S-1 (SEC File No. 333-56567).
ITEM 6. EXECUTIVE COMPENSATION.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions "Management -- Director
Compensation"; "Management -- 1997 Non-employee Directors' Stock Plan";
"Management -- Executive Compensation"; "Management -- Employment Agreement;
Covenants Not to Compete"; and "Management -- Compensation Committee Interlocks
and Insider Participation" contained in TSI Delaware's Registration Statement on
Form S-1 (SEC File No. 333-56567).
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ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The Registrant incorporates herein by reference the information,
discussion and related matters under the caption "Certain Transactions"
contained in TSI Delaware's Registration Statement on Form S-1 (SEC File No.
333-56567).
ITEM 8. LEGAL PROCEEDINGS.
As of the date of this Registration Statement, TSI Florida is not
involved in any legal claims or actions.
TSI Delaware is involved in various legal claims and actions arising in
the ordinary course of business. The Registrant believes that none of these
actions will have a material adverse effect on its business, financial condition
and results of operations.
ITEM 9. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON EQUITY
AND OTHER SHAREHOLDER MATTERS.
The TSI Delaware Common Stock is traded on Nasdaq under the symbol
"TRVL." The following table sets forth the high and low reported sales prices
for each quarter (or partial quarter) in 1997 and 1998, as quoted on Nasdaq:
<TABLE>
<CAPTION>
HIGH LOW
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<S> <C> <C>
1997
Third Quarter (from July 22, 1997) $25 5/8 $18 7/8
Fourth Quarter 26 19 3/8
1998
First Quarter 33 11/16 17 7/8
Second Quarter 39 3/8 30
Third Quarter 36 9/16 13
Fourth Quarter (through October 28, 1998) 19 8 3/8
</TABLE>
The closing price of TSI Delaware Common Stock, as reported by Nasdaq,
on October 28, 1998 was $18 7/8. The approximate number of record holders of TSI
Delaware Common Stock as of October 28, 1998 was 142. The Registrant believes
that a larger number of beneficial owners hold such shares in depository or
nominee form.
The Registrant intends to retain all of its earnings, if any, to
finance the expansion of its business and for general corporate purposes,
including future acquisitions, and does not anticipate paying any cash dividends
on TSI Florida Common Stock for the foreseeable future. In addition, TSI
Delaware's line of credit (which upon consummation of the Reincorporation and
the Merger will be assumed by TSI Florida) includes restrictions on the ability
of the Registrant to pay cash dividends without the consent of the lender.
ITEM 10. RECENT SALES OF UNREGISTERED SECURITIES.
The Registrant incorporates herein by reference the information,
discussion and related matters under the caption "Item 15. Recent Sales of
Unregistered Securities" contained in Part II of TSI Delaware's Registration
Statement on Form S-1 (SEC File No. 333-56567).
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ITEM 11. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions (i) "Proposal to Approve the
Reincorporation of the Company from Delaware to Florida" contained in TSI
Delaware's Proxy Statement, filed with the SEC on July 6, 1998 relating to TSI
Delaware's 1998 Annual Meeting of Shareholders and Exhibit B to such Proxy
Statement; and (ii) "Description of Capital Stock -- Common Stock and Restricted
Common Stock" and "Description of Capital Stock -- Preferred Stock" contained in
TSI Delaware's Registration Statement on Form S-1 (SEC File No. 333-56567).
ITEM 12. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant incorporates herein by reference the information,
discussion and related matters under the caption "Management -- Indemnification
Agreements" contained in TSI Delaware's Registration Statement on Form S-1 (SEC
File No. 333-56567).
The Registrant has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. In general, Florida law permits a Florida corporation
to indemnify its directors, officers, employees and agents, and persons serving
at the corporation's request in such capacities for another enterprise, against
liabilities arising from conduct that such persons reasonably believed to be in,
or not opposed to, the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director, and in
appropriate circumstances equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful; (b)
deriving an improper personal benefit from a transaction; (c) voting for or
assenting to an unlawful distribution; and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws
Article Seven of the Registrant's articles of incorporation (the
"Florida Articles") states that: "A director shall not be personally liable to
the Corporation or the holders of shares of capital stock or any other person
for monetary damages for any statement, vote, decision, act or failure to act,
for which such liability is precluded or otherwise eliminated under Section
607.0831 or otherwise under the Florida Business Corporation Act. If the Florida
Business Corporation Act is hereafter amended to authorize the further or
broader elimination or limitation of the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Florida Business Corporation Act, as so
amended. No repeal or modification of this Article VII shall adversely affect
any right of or protection afforded to a director of the Corporation existing
immediately prior to such repeal or modification. Article Eight of the
Registrant's Florida Articles states that: "The Corporation shall indemnify and
may advance expenses to, and may purchase and maintain insurance
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on behalf of, its officers and directors to the fullest extent
permitted by law as now or hereafter in effect. Without limiting the generality
of the foregoing, the Bylaws may provide for indemnification and advancement of
expenses to officers, directors, employees and agents on such terms and
conditions as the Board may from time to time deem appropriate or advisable." In
addition, the Registrant's Bylaws further provide that the Registrant shall
indemnify its officers, directors, advisory directors and employees to the
fullest extent permitted by law.
The Registrant will enter into indemnification agreements with each of
its executive officers, its advisory director and directors which indemnifies
such person to the fullest extent permitted by its Florida Articles, its Bylaws
and under the Florida Business Corporation Act. The Registrant also maintains
directors and officers liability insurance.
ITEM 13. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The Registrant incorporates herein by reference the information,
discussion and related matters under the captions (i) "Item 1. Financial
Statements" contained in TSI Delaware's Form 10-Q for the quarter ended June 30,
1998, which was filed with the SEC on August 14, 1998; and (ii) the "Index to
Financial Statements" on Page F-1 and all items referenced therein contained in
TSI Delaware's Registration Statement on Form S-1 (SEC File No. 333-56567).
ITEM 14. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE.
None.
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ITEM 15. FINANCIAL STATEMENT AND EXHIBITS.
(a) Financial Statements
The Registrant incorporates herein by reference the information,
discussion and related matters disclosed in Item 13 hereof.
(b) Exhibits
EXHIBIT NUMBER DESCRIPTION
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2.1 Agreement and Plan of Organization, dated as of May 9, 1997,
among TSI Delaware, Auto-Europe, Inc. (Maine), Imad Khalidi,
Alex Cecil and Wilfred Diller, as trustee for Thurston Cecil
and Lila Cecil.(1)
2.2 Agreement and Plan of Organization, dated as of May 9, 1997,
among TSI Delaware, Cruises Only, Inc., Wayne Heller and
Judy Heller.(1)
2.3 Agreement and Plan of Organization, dated as of May 9,
1997, among TSI Delaware, 800-Ideas, Inc. and Susan
Parker.(1)
2.4 Agreement and Plan of Organization, dated as of May 9,
1997, among TSI Delaware, Cruises, Inc., Robert G. Falcone,
Judith A. Falcone and Pamela C. Cole.(1)
2.5 Agreement and Plan of Organization, dated as of May 9, 1997,
among TSI Delaware, D-FW Tours, Inc., D-FW Travel
Arrangements, Inc., John W. Przywara and Sharon S.
Przywara.(1)
2.6 First Amendment to Agreement and Plan of Organization among
TSI Delaware, Auto-Europe, Inc. (Maine), Imad Khalidi Alex
Cecil and Wilfred Diller, as trustee for Thurston Cecil and
Lila Cecil.(2)
2.7 First Amendment to Agreement and Plan of Merger, dated as
of June 30, 1997, by and among TSI Delaware, Cruises, Inc.,
Robert G. Falcone, Judith A. Falcone, and Pamela C. Cole.(2)
2.8 First Amendment to Agreement and Plan of Merger, dated
as of June 30, 1997, by and among TSI Delaware, Cruises
Only, Inc., Wayne Heller and Judy Heller.(2)
2.9 First Amendment to Agreement and Plan of Merger, dated as
of June 30, 1997, by and among TSI Delaware, D-FW Travel
Arrangements, Inc., John W. Przywara and Sharon Scott
Przywara.(2)
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2.10 First Amendment to Agreement and Plan of Merger, dated as
of June 30, 1997, by and among TSI Delaware, 800-Ideas, Inc.
and Susan Parker.(2)
2.11 Agreement and Plan of Merger, dated as of October 29,
1998, by and between TSI Delaware and the Registrant.(10)
3.1 Articles of Incorporation of the Registrant.(10)
3.2 Bylaws of the Registrant.(10)
4.2 Form of Restriction and Registration Rights Agreement,
dated as of July 28, 1997, between TSI Delaware and the
each of the persons listed on the schedule thereto.(4)
10.1 Amended and Restated Employment Agreement, dated as of
July 22, 1997, between TSI Delaware and Joseph V.
Vittoria.(4) Amended and Restated Employment Agreement,
dated as of May 12, 1997, between TSI Delaware and Jill M.
Vales.(4) Amended and Restated Employment Agreement, dated
as of June 6, 1997, between TSI Delaware and Michael J.
Moriarty.(4) Employment Agreement, dated July 22, 1997,
between TSI Delaware and Mel Robinson.(4) Employment
Agreement, dated July 22, 1997, among TSI Delaware, Auto
Europe, LLC and Imad Khalidi.(4) Employment Agreement,
dated July 18, 1997, among TSI Delaware, Auto Europe, LLC
and Alex Cecil.(4) Employment Agreement, dated July 22,
1997, among TSI Delaware, Cruises, Inc. and Robert Falcone.
(4) Employment Agreement, dated July 22, 1997, among TSI
Delaware, Cruises, Inc. and Judith Falcone.(4) Employment
Agreement, dated July 22, 1997, among TSI Delaware,
Cruises, Inc. and Holley Christen.(4) Employment Agreement,
dated July 22, 1997, among TSI Delaware, Cruises Only, LLC
and Wayne Heller.(4) Employment Agreement, dated July 22,
1997, among TSI Delaware, Cruises Only, LLC and Judy
Heller.(4)Employment Agreement, dated July 22, 1997, among
TSI Delaware, Travel 800, LLC and Susan Parker.(4)
10.2 Form of Indemnification Agreement, dated July 28, 1997,
between TSI Delaware and each of the persons set forth on
the schedule thereto.(4)
10.3 1997 Long Term Incentive Plan.(3)
10.4 Non-Employee Directors' Stock Plan.(3)
10.6 Employment Agreement, dated July 25, 1997, between TSI
Delaware and Suzanne B. Bell.(4)
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10.7 Employment Agreement, dated as of July 25, 1997, between
TSI Delaware and Maryann Bastnagel.(4)
10.8 Credit Agreement, dated as of October 15, 1997, by and
between TSI Delaware and NationsBank, N.A.(4)
10.9 Stock Purchase Agreement, dated as of October 28, 1997,
among TSI Delaware, CruiseOne, Inc., Anthony J. Persico and
Charlotte Luna, as amended.(5) 10.10 Stock Purchase
Agreement, dated as of October 28, 1997, among TSI Delaware,
Cruise World, Inc., and the sellers named therein, as
amended.(5)
10.11 Stock Purchase Agreement, dated as of October 28, 1996,
among TSI Delaware, Ship `N' Shore Cruises, Inc., Cruise
Time, Inc., SNS Coachline, Inc., Cruise Mart, Inc., SNS
Travel Marketing, Inc. and Natalee Stutzman, as amended.(5)
10.12 Asset Purchase Agreement, dated as of February 9, 1998,
among TSI Delaware, Gold Coast Travel Agency Corporation,
Inc. and Rhea Sherota.(6)
10.13 Employment Agreement, dated as of January 19, 1998, between
TSI Delaware and John C. De Lano.(7)
10.14 Stock Purchase Agreement, dated March 31, 1998, among TSI
Delaware, The Cruise Line, Inc. and the shareholders named
therein.(8)
10.15 Employment Agreement, dated as of April 1, 1998, among
TSI Delaware and Spencer Frazier.(9)
10.16 Purchase Agreement by and among TSI Delaware and Lexington
Services Associates, Ltd., a Texas limited partnership (the
"Partnership"), and the Partnership's partners dated as of
June 1, 1998.(9)
11 Schedule of Computations of Earnings Per Share.(7)
21 Subsidiaries of TSI Delaware.(10)
23.1 Consent of Arthur Andersen LLP.(10)
23.2 Consent of Ernst & Young LLP.(10)
99.1 TSI Delaware's Registration Statement on Form S-1 (File No.
333-56567).(11)
99.2 TSI Delaware's Proxy Statement for the 1998 Annual meeting
of Stockholders of TSI Delaware held on July 28, 1998.(12)
99.3 TSI Delaware's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998.(13)
99.4 TSI Delaware's Registration Statement on Form S-3 (File No.
333-61337).(14)
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(1) Incorporated by reference to the same Exhibit number filed on May 14,
1997, with TSI Delaware's Registration Statement on Form S-1 (File no.
333-27125).
(2) Incorporated by reference to the same Exhibit number filed on July 1, 1997
with TSI Delaware's Registration Statement on Form S-1 (File no.
333-27125).
(3) Incorporated by reference to the exhibit filed with TSI Delaware's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997.
(4) Incorporated by reference to the exhibit filed with TSI Delaware's
Quarterly Report for the quarter ended September 30, 1997.
(5) Incorporated by reference to the exhibit filed on November 19, 1997 with
TSI Delaware's Form 8-K. (6) Incorporated by reference to the exhibit
filed on February 9, 1998 with TSI Delaware's Form 8-K.
(7) Incorporated by reference to the exhibit filed with TSI Delaware's Annual
Report on Form 10-K for the year ended December 31, 1997.
(8) Incorporated by reference to the exhibit filed on March 31, 1998 with TSI
Delaware's Form 8-K. (9) Incorporated by reference to the same exhibit
number filed with TSI Delaware's Registration Statement on Form S-1 (File
No. 333-56567).
(10) Filed herewith.
(11) Incorporated by reference to TSI Delaware's Registration Statement on Form
S-1 (File No. 333-56567).
(12) Incorporated by reference to TSI Delaware's Proxy Statement for the 1998
Annual Meeting of Shareholders of TSI Delaware held on July 28, 1998.
(13) Incorporated by reference to TSI Delaware's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998.
(14) Incorporated by reference to TSI Delaware's Registration Statement on Form
S-3 (File No. 333-61337).
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
TRAVEL SERVICES GROUP, INC. (TO BE RENAMED
"TRAVEL SERVICES INTERNATIONAL, INC." UPON
CONSUMMATION OF THE REINCORPORATION AND
MERGER DESCRIBED ABOVE)
Date: October 29, 1998 By: /s/ JILL M. VALES
------------------------------------
Name: Jill M. Vales
Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Description
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2.11 Agreement and Plan of Merger, dated as of October 29, 1998, by
and between TSI Delaware and the Registrant.(10)
3.1 Articles of Incorporation of the Registrant.(10)
3.2 Bylaws of the Registrant.(10)
21 Subsidiaries of TSI Delaware.(10)
23.1 Consent of Arthur Andersen LLP.(10)
23.2 Consent of Ernst & Young LLP.(10
EXHIBIT 2.11
AGREEMENT AND PLAN OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated as of October 29, 1998 (the
"Agreement"), is entered into between TRAVEL SERVICES GROUP, INC., a Florida
corporation ("FLORIDA"), and TRAVEL SERVICES INTERNATIONAL, INC., a Delaware
corporation ("DELAWARE").
A. DELAWARE has an aggregate authorized capital of 51,000,000 shares of
capital stock, consisting of (i) 50,000,000 shares of common stock, $0.01 par
value (the "Delaware Common Stock") of which 2,484,501 shares have been
designated as Restricted Voting Common Stock (the "Delaware Restricted Common
Stock") and 47,515,499 remain undesignated (the "Delaware Non-restricted Common
Stock"), and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share
(the "Delaware Preferred Stock").
B. FLORIDA has an aggregate authorized capital of 51,000,000 shares of
capital stock, consisting of (i) 50,000,000 shares of common stock, $0.01 par
value (the "Florida Common Stock") of which 1,900,331 shares have been
designated as Restricted Voting Common Stock (the "Florida Restricted Common
Stock") and 48,099,669 remain undesignated (the "Florida Non-restricted Common
Stock"), and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share
(the "Florida Preferred Stock").
C. The respective Boards of Directors of FLORIDA and DELAWARE believe
that it is in the best interests of FLORIDA and DELAWARE and their respective
shareholders to merge DELAWARE with and into FLORIDA under and pursuant to the
provisions of this Agreement, the Delaware General Corporation Law and the
Florida Business Corporation Act.
AGREEMENT
In consideration of the Recitals and of the mutual agreements contained
in this Agreement, the parties hereto agree as set forth below.
1. MERGER. DELAWARE shall be merged with and into FLORIDA (the
"Merger").
2. EFFECTIVE DATE. The Merger shall become effective immediately upon
the later of the filing of this Agreement or a certificate of merger with the
Secretary of State of Delaware in accordance with the Delaware General
Corporation Law and the filing of articles of merger with the Secretary of State
of Florida in accordance with the Florida Business Corporation Act (the
"Articles of Merger"). The time of such effectiveness is hereinafter called the
"Effective Date."
3. SURVIVING CORPORATION. FLORIDA shall be the surviving corporation of
the Merger and shall continue to be governed by the laws of the State of
Florida. On the Effective Date, the separate corporate existence of DELAWARE
shall cease.
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4. ARTICLES OF INCORPORATION. The Articles of Incorporation of FLORIDA
as it exists on the Effective Date shall be the Articles of Incorporation of
FLORIDA following the Effective Date, unless and until the same shall thereafter
be amended or repealed in accordance with the laws of the State of Florida;
provided, however, that pursuant to and upon the filing of the Articles of
Merger the name of FLORIDA shall be changed to "Travel Services International,
Inc."
5. BYLAWS. The Bylaws of FLORIDA as they exist on the Effective Date
shall be the Bylaws of FLORIDA following the Effective Date, unless and until
the same shall be amended or repealed in accordance with the provisions thereof
and the laws of the State of Florida.
6. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of DELAWARE immediately prior to the Effective Date
shall be the members of the Board of Directors and the officers of FLORIDA
following the Effective Date, and such persons shall serve in such offices for
the terms provided by law or in Florida's Articles of Incorporation and Bylaws,
or until their respective successors are elected and qualified.
7. RETIREMENT OF OUTSTANDING FLORIDA STOCK. Upon the Effective Date,
each of the 100 shares of the FLORIDA Common Stock presently issued and
outstanding shall be retired, and no shares of FLORIDA Common Stock or other
securities of FLORIDA shall be issued in respect thereof.
8. CONVERSION OF OUTSTANDING DELAWARE STOCK. Upon the Effective Date,
each issued and outstanding share of Delaware Restricted Common Stock and all
rights in respect thereof shall be converted into one fully-paid and
nonassessable share of Florida Restricted Common Stock, and each certificate
representing shares of Delaware Restricted Common Stock shall for all purposes
be deemed to evidence the ownership of the same number of shares of Florida
Restricted Common Stock as are set forth in such certificate. After the
Effective Date, each holder of an outstanding certificate representing shares of
Delaware Restricted Common Stock may, at such shareholder's option, surrender
the same to Florida's registrar and transfer agent for cancellation, and each
such holder shall be entitled to receive in exchange therefor a certificate
evidencing the ownership of the same number of shares of Florida Restricted
Common Stock as are represented by the DELAWARE certificate surrendered to
Florida's registrar and transfer agent.
Upon the Effective Date, each issued and outstanding share of Delaware
Non-restricted Common Stock and all rights in respect thereof shall be converted
into one fully-paid and nonassessable share of Florida Non-restricted Common
Stock, and each certificate representing shares of Delaware Non-restricted
Common Stock shall for all purposes be deemed to evidence the ownership of the
same number of shares of Florida Non-restricted Common Stock as are set forth in
such certificate. After the Effective Date, each holder of an outstanding
certificate representing shares of Delaware Non-restricted Common Stock may, at
such shareholder's option, surrender the same to Florida's registrar and
transfer agent for cancellation, and each such holder shall be entitled to
receive in exchange therefor a certificate evidencing the ownership of
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the same number of shares of Florida Non-restricted Common Stock as are
represented by the DELAWARE certificate surrendered to Florida's registrar and
transfer agent.
9. CONDITIONS TO CONSUMMATION OF THE MERGER. Consummation of the Merger
is subject to the satisfaction prior to the Effective Date of the following
conditions: (a) This Agreement and the Merger shall have been adopted and
approved by the affirmative vote of the holders of a majority of the votes
represented by the shares of Delaware Common Stock outstanding on the record
date fixed for determining the shareholders of DELAWARE entitled to vote
thereon; (b) DELAWARE and FLORIDA shall have received all consents, orders and
approvals and satisfaction of all other requirements prescribed by law that are
necessary for the consummation of the Merger; and (c) The Nasdaq Stock Market
shall have authorized the listing, upon official notice of issuance, of the
shares of Florida Common Stock to be issued or delivered in connection with the
Merger and such authorization shall be in full force and effect on such date.
10. STOCK OPTIONS. Upon the Effective Date, each stock option and other
right to subscribe for or purchase shares of Delaware Common Stock shall be
converted into a stock option or other right to subscribe for or purchase the
same number of shares of Florida Common Stock and each certificate, agreement,
note or other document representing such stock option or other right to
subscribe for or purchase shares of Delaware Common Stock shall for all purposes
be deemed to evidence the ownership of a stock option or other right to
subscribe for or purchase shares of Florida Common Stock.
11. RIGHTS AND LIABILITIES OF FLORIDA. At and after the Effective Date,
and all in the manner of and as more fully set forth in Section 607.1106 of the
Florida Business Corporation Act and Section 259 of the Delaware General
Corporation Law, the title to all real estate and other property, or any
interest therein, owned by each of DELAWARE and FLORIDA shall be vested in
FLORIDA without reversion or impairment; FLORIDA shall succeed to and possess,
without further act or deed, all estates, rights, privileges, powers and
franchises, both public and private, and all of the property, real, personal and
mixed, of each of DELAWARE and FLORIDA without reversion or impairment; FLORIDA
shall thenceforth be responsible and liable for all the liabilities and
obligations of each of DELAWARE and FLORIDA; any claim existing or action or
proceeding pending by or against DELAWARE or FLORIDA may be continued as if the
Merger did not occur or FLORIDA may be substituted for DELAWARE in the
proceeding; neither the rights of creditors nor any liens upon the property of
DELAWARE or FLORIDA shall be impaired by the Merger, and FLORIDA shall indemnify
and hold harmless the officers and directors of each of the parties hereto
against all such debts, liabilities and duties and against all claims and
demands arising out of the Merger.
12. TERMINATION. This Agreement may be terminated and abandoned by
action of the respective Board of Directors of DELAWARE or FLORIDA at any time
prior to the Effective Date, whether before or after approval by the
shareholders of either or both of the parties hereto.
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13. AMENDMENT. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Date; provided, that an
amendment made subsequent to the approval of this Agreement by the shareholders
of either of the parties hereto shall not: (a) change the amount or kind of
shares, securities, cash, property or rights to be received in exchange for or
on conversion of all or any of the shares of the parties hereto, (b) change any
term of the Articles of Incorporation of FLORIDA or (c) change any other terms
or conditions of this Agreement if such change would adversely affect the
holders of any capital stock of either party hereto.
14. INSPECTION OF AGREEMENT. Executed copies of this Agreement will be
on file at the principal place of business of FLORIDA at 220 Congress Park
Drive, Delray Beach, Florida 33445. A copy of this Agreement shall be furnished
by FLORIDA, on request and without cost, to any shareholder of either DELAWARE
or FLORIDA.
15. GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Florida.
16. SERVICE OF PROCESS. On and after the Effective Date, FLORIDA agrees
that it may be served with process in Delaware in any proceeding for enforcement
of any obligation of DELAWARE or FLORIDA arising from the Merger.
17. DESIGNATION OF DELAWARE SECRETARY OF STATE AS AGENT FOR SERVICE OF
PROCESS. On and after the Effective Date, FLORIDA irrevocably appoints the
Secretary of State of Delaware as its agent to accept service of process in any
suit or other proceeding to enforce the rights of any shareholders of DELAWARE
or FLORIDA arising from the Merger. The Delaware Secretary of State is requested
to mail a copy of any such process to FLORIDA at 220 Congress Park Drive, Delray
Beach, Florida 33445, Attention: President.
18. REMEDIES. Any rights and remedies belonging to DELAWARE or FLORIDA
and arising in connection with the actions contemplated by this Agreement shall
be pursued solely against DELAWARE or FLORIDA, and not against their respective
officers, directors or employees. In the event that any officer, director or
employee of DELAWARE or FLORIDA becomes involved in any capacity in any action,
proceeding or investigation in connection with the Merger or this Agreement,
DELAWARE and/or FLORIDA may advance to such person(s) all reasonable legal and
other expenses incurred in connection therewith and shall also indemnify such
person(s) against any losses, claims, damages or liabilities to which such
person(s) may become subject in connection with the Merger or this Agreement,
except to the extent that such indemnification is prohibited by law.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Plan of Merger to be executed on its behalf by its officers duly
authorized, all as of the date first above written.
TRAVEL SERVICES GROUP, INC., a Florida
corporation
By: /s/ JOSEPH V. VITTORIA
---------------------------------
Name: JOSEPH V. VITTORIA
Title: CHIEF EXECUTIVE OFFICER
TRAVEL SERVICES INTERNATIONAL, INC., a
Delaware corporation
By: /s/ JOSEPH V. VITTORIA
---------------------------------
Name: JOSEPH V. VITTORIA
Title: CHIEF EXECUTIVE OFFICER
5
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
TRAVEL SERVICES GROUP, INC.
ARTICLE I- NAME
The name of the Corporation is TRAVEL SERVICES GROUP, INC. (hereinafter
called the "Corporation").
ARTICLE II - PURPOSES; DURATION
The purpose for which the Corporation is organized is to engage in the
transaction of any lawful business for which corporations may be incorporated
under the laws of the State of Florida. The Corporation shall exist perpetually
unless sooner dissolved according to law.
ARTICLE III - CAPITAL STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 51,000,000 shares of stock,
consisting of (i) 1,000,000 shares, designated as preferred stock, par value of
One Cent ($.01) per share (the "Preferred Stock"), and (ii) 50,000,000 shares,
designated as common stock, par value of One Cent ($.01) per share (the "Common
Stock"), 1,900,331 shares of which Common Stock is designated as restricted
voting common stock (the "Restricted Voting Common Stock"), subject to paragraph
5 of this Article III.
A statement of the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, in respect of each class of
stock of the Corporation, is as follows:
PREFERRED STOCK. The Preferred Stock may be issued from time to time by
the Board of Directors as shares of one or more classes or series. Subject to
the provisions of these Articles of Incorporation and the limitations prescribed
by law, the Board of Directors is expressly authorized by adopting resolutions
to issue, fix or change the number of shares constituting any series or class
of, and to provide for or change the voting powers, designations, preferences
and relative, participating, optional or other special rights, qualifications,
limitations or restrictions thereof, including dividend rights (and whether
dividends are cumulative), dividend rates, terms of redemption (including
sinking fund provisions), a redemption price or prices, conversion rights and
liquidation preferences of, the shares constituting any class or series of the
Preferred Stock, without any further action or vote by the shareholders.
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COMMON STOCK; RESTRICTED VOTING COMMON STOCK.
1. RIGHTS OF COMMON STOCK AND RESTRICTED VOTING COMMON STOCK. Except as
to differences in voting power as expressly provided in this Article III or as
otherwise required under the Florida Business Corporation Act, all shares of
Common Stock and Restricted Voting Common Stock shall have identical rights and
limitations, and the Common Stock and Restricted Voting Common Stock shall
otherwise be deemed for all purposes to constitute one class of stock of the
Corporation, including, without limitation, with respect to rights to receive
and share in dividends and other distributions by the Corporation.
2. DIVIDENDS. Subject to the preferred rights of the holders of shares
of any class or series of Preferred Stock as provided by the Board of Directors
with respect to any such class or series of Preferred Stock, the holders of the
Common Stock and Restricted Voting Common Stock shall be entitled to receive, as
and when declared by the Board of Directors out of the funds of Corporation
legally available therefor, such dividends (payable in cash, stock or otherwise)
as the Board of Directors may from time to time determine, payable to
shareholders of record on such date or dates as shall be fixed for such purpose
by the Board of Directors in accordance with the Florida Business Corporation
Act. All dividends on Common Stock shall be paid pari passu with dividends on
Restricted Voting Common Stock.
3. LIQUIDATION. In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, after the distribution
or payment to the holders of shares of any class or series of Preferred Stock as
provided by the Board of Directors with respect to any such class or series of
Preferred Stock, the remaining assets of the Corporation available for
distribution to shareholders shall be distributed among and paid to the holders
of Common Stock and Restricted Voting Common Stock ratably in proportion to the
number of shares of Common Stock and Restricted Voting Common Stock held by them
respectively.
4. VOTING RIGHTS. Except as otherwise required by law, each holder of
shares of Common Stock shall be entitled to one vote for each share of Common
Stock standing in such holder's name on the books of the Corporation. Except as
otherwise required by law, each holder of shares of Restricted Voting Common
Stock shall be entitled to four-tenths of a vote for each share of Restricted
Voting Common Stock standing in such holder's name on the books of the
Corporation. The holders of Common Stock and Restricted Voting Common Stock
shall vote as a single class on all matters subject to a vote of such shares,
and the holders of shares of Restricted Voting Common Stock shall have no right
to vote separately as a class, except as specifically required otherwise by the
Florida Business Corporation Act.
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5. CONVERSION OF THE RESTRICTED VOTING COMMON STOCK. Each share of
Restricted Voting Common Stock will automatically convert into Common Stock on a
share for share basis (a) in the event of any transfer or other disposition of
such share of Restricted Voting Common Stock by the holder thereof (other than a
disposition which is a distribution by a holder to its partners or beneficial
owners or a transfer to a related party of such holder (as defined in Section
267, 707, 318, and/or 4946 of the Internal Revenue Code of 1986), (b) in the
event any person acquires beneficial ownership of 15% or more of the outstanding
shares of Common Stock of the Corporation, (c) in the event any person offers to
acquire 15% or more of the outstanding shares of Common Stock of the
Corporation, or (d) in the event that such a conversion is approved by a
majority of the aggregate number of votes which may be voted by the holders of
outstanding shares of Common Stock and Restricted Voting Common Stock entitled
to vote to approve such conversion. After December 31, 1999, the Corporation may
elect, by resolution of the Board of Directors, to convert any outstanding
shares of Restricted Voting Common Stock into shares of Common Stock in the
event 73.25% or more of the aggregate number of shares of Restricted Voting
Common Stock first issued by the Corporation have been converted into shares of
Common Stock. Upon such time, after the first issuance of shares of Restricted
Voting Common Stock, as all outstanding shares of Restricted Voting Common Stock
shall have been converted into shares of Common Stock or shall otherwise cease
to be outstanding, (i) the Corporation shall cease to have any authorized shares
of Restricted Voting Common Stock (but such occurrence shall in no event reduce
or change the aggregate total number of shares of the Corporation's authorized
Common Stock) and (ii) the Board of Directors may amend these Articles of
Incorporation as permitted under the Florida Business Corporation Act to delete
references and provisions relating to the Restricted Voting Common Stock.
6. CALL OF SPECIAL MEETING OF SHAREHOLDERS. Except as otherwise
required by law, special meetings of shareholders of the Corporation may be
called only by (i) the Board pursuant to a resolution approved by a majority of
the entire Board, (ii) the Company's Chairman of the Board or, if the Chairman
is not present (or if there is no Chairman), by the Company's President or (iii)
the holders of not less than fifty (50) percent of all the votes entitled to be
cast on any issue proposed to be considered at the proposed special meeting, but
only if such holders first deliver to the Corporation's secretary one or more
written demands (which shall be signed and dated) describing the purpose or
purposes for which the special meeting is to be held, in accordance with all
requirements of applicable law.
ARTICLE IV - BOARD OF DIRECTORS
1. BOARD OF DIRECTORS. The Corporation's Board of Directors shall be
classified with respect to the time for which they shall severally hold office
into three classes, Class I, Class II and Class III, as nearly equal in number
as possible. The Class I Directors shall be elected to hold office for an
initial term expiring at the 2001 annual meeting of shareholders, the Class II
Directors shall be elected to hold office for an initial term expiring at the
1999 annual meeting of shareholders, and the Class III Directors shall be
elected to hold office for an initial term expiring at the 2000 annual meeting
of shareholders, with the members of each class of directors to hold office
until their successors have been duly elected and qualified. At each annual
meeting of shareholders, the successors to the class of directors whose term
expires at that meeting shall be
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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 and
until their successors have been duly elected and qualified. No director or
class of directors may be removed from office by a vote of the shareholders at
any time except for cause.
2. VACANCIES. Any vacancy on the Board of Directors resulting from
death, retirement, resignation, disqualification or removal from office or other
cause, as well as any vacancy resulting from an increase in the number of
directors which occurs between annual meetings of the shareholders at which
directors are elected, shall be filled only by a majority vote of the remaining
directors then in office, though less than a quorum, except that those vacancies
resulting from removal from office by a vote of the shareholders may be filled
by a vote of the shareholders at the same meeting at which such removal occurs.
The directors chosen to fill vacancies shall hold office for a term expiring at
the end of the next annual meeting of shareholders at which the term of the
class to which they have been elected expires. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
Notwithstanding the foregoing, whenever the holders of one or more
classes or series of Preferred Stock shall have the right, voting separately as
a class or series, to elect directors, the election, term of office, filling of
vacancies, removal and other features of such directorships shall be governed by
the terms of the resolution or resolutions adopted by the Board of Directors
pursuant to Article III applicable thereto, and each director so elected shall
not be subject to the provisions of this Article IV unless otherwise provided
therein.
3. POWER TO MAKE, ALTER AND REPEAL BYLAWS. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, alter and repeal the Bylaws of the Corporation.
4. AMENDMENT AND REPEAL OF ARTICLE IV. Notwithstanding any provision of
these Articles of Incorporation and of the Bylaws, and notwithstanding the fact
that a lesser percentage may be permitted by Florida law, unless such action has
been approved by a majority vote of the full Board of Directors, the affirmative
vote of sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of
the Corporation's capital stock entitled to vote thereon, voting together as a
single class, shall be required to amend or repeal any provisions of this
Article IV or to adopt any provision inconsistent with this Article IV. In the
event such action has been previously approved by a majority vote of the full
Board of Directors, the affirmative vote of a majority of the outstanding shares
entitled to vote thereon shall be sufficient to amend or repeal any provision of
this Article IV or adopt any provision inconsistent with this Article IV.
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ARTICLE V - INITIAL REGISTERED AGENT; CORPORATION ADDRESS
The street address of the initial registered office of the Corporation
is 1201 Hays Street, Tallahassee, Florida 32301. The name of the initial
registered agent of the Corporation at that address is Corporation Service
Company. The current mailing address of the principal place of business of the
Corporation is 220 Congress Park Drive, Suite 300, Delray Beach, Florida 33445.
ARTICLE VI - INCORPORATOR
The name and address of the incorporator of the Corporation is Suzanne
B. Bell, 220 Congress Park Drive, Suite 300, Delray Beach, Florida 33445.
ARTICLE VII - LIMITATION ON DIRECTOR LIABILITY
A director shall not be personally liable to the Corporation or the
holders of shares of capital stock or any other person for monetary damages for
any statement, vote, decision, act or failure to act, for which such liability
is precluded or otherwise eliminated under Section 607.0831 or otherwise under
the Florida Business Corporation Act. If the Florida Business Corporation Act is
hereafter amended to authorize the further or broader elimination or limitation
of the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Florida Business Corporation Act, as so amended. No repeal or modification
of this Article VII shall adversely affect any right of or protection afforded
to a director of the Corporation existing immediately prior to such repeal or
modification.
ARTICLE VIII - INDEMNIFICATION
The Corporation shall indemnify and may advance expenses to, and may
purchase and maintain insurance on behalf of, its officers and directors to the
fullest extent permitted by law as now or hereafter in effect. Without limiting
the generality of the foregoing, the Bylaws may provide for indemnification and
advancement of expenses to officers, directors, employees and agents on such
terms and conditions as the Board may from time to time deem appropriate or
advisable.
IN WITNESS WHEREOF, the incorporator has executed these Articles of
Incorporation of TRAVEL SERVICES GROUP, INC. this 19th day of October, 1998.
/s/ SUZANNE B. BELL
--------------------------------
Suzanne B. Bell, Incorporator
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CONSENT OF REGISTERED AGENT
OF
TRAVEL SERVICES GROUP, INC.
The undersigned, Corporation Service Company, whose business address is
1201 Hays Street, Tallahassee, Florida 32301, hereby accepts appointment as the
initial registered agent of TRAVEL SERVICES GROUP, INC., a Florida corporation,
and accepts the obligations provided for in Section 607.0505, Florida Statutes.
CORPORATION SERVICE COMPANY
Registered Agent
By: --------------------------------
EXHIBIT 3.2
TRAVEL SERVICES INTERNATIONAL, INC.
(A FLORIDA CORPORATION)
BYLAWS
ARTICLE I.
OFFICES
Section 1.1. REGISTERED OFFICE. The registered office of Travel
Services International, Inc. (hereinafter referred to as the "Corporation")
shall be located at 1201 Hays Street, Tallahassee, Florida 32301, c/o
Corporation Service Company.
Section 1.2. ADDITIONAL OFFICES. The Corporation may also have
offices at such other places, both within and outside the State of Florida, as
the Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 2.1. TIME AND PLACE. All meetings of shareholders for the
election of Directors shall be held at such time and place, either within or
outside the State of Florida, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting. Meetings of shareholders for any other purpose
may be held at such time and place either within or outside the State of Florida
as shall be stated in the notice of the meeting or in a duly executed waiver of
notice of the meeting.
Section 2.2. ANNUAL MEETING. Annual meetings of shareholders shall be
held for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought before the meeting.
Section 2.3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each shareholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than sixty (60) days prior
to the meeting.
Section 2.4. SPECIAL MEETING. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Articles of Incorporation, may be called by the Chairman of the Board, if any,
or, if the Chairman is not present (or, if there is none), by the President and
shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of the
shareholders owning not less than 50% of the shares of capital stock of the
Corporation issued and outstanding and
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entitled to vote at such meeting. Such request shall state the purpose
or purposes of the proposed meeting. Notice of the meeting shall be given in
accordance with the provisions of Section 2.5 of this Article II and of Article
V.
Section 2.5. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be given in
compliance with applicable law.
Section 2.6. LIST OF SHAREHOLDERS. The officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
ten (10) days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each shareholder and the number of shares registered
in the name of each shareholder. Such list shall be open to the examination of
any shareholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, at
a place within the city where the meeting is to be held. Such place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting and may be inspected by any shareholder who
is present.
Section 2.7. PRESIDING OFFICER. Meetings of shareholders shall be
presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by a Vice President, or, if a Vice President is not present, by such
person who may have been chosen by the Board of Directors, or, if none of such
persons is present, by a Chairman to be chosen by the shareholders owning a
majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if the Secretary is
not present, an Assistant Secretary, or, if an Assistant Secretary is not
present, such person as may be chosen by the Board of Directors, shall act as
secretary of meetings of shareholders, or, if none of such persons is present,
the shareholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at the meeting and who
are present in person or represented by proxy shall choose any person present to
act as secretary of the meeting.
Section 2.8. QUORUM AND ADJOURNMENTS. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at shareholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the shareholders, except as otherwise provided by
statute or by the Articles of Incorporation. The shareholders present or in
person or represented by proxy at a duly organized meeting may continue to do
business until final adjournment of such meeting whether on the same day or on a
later day, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. If a meeting cannot be organized because a quorum has not
attended, or even if a quorum shall be present or represented at any meeting of
the shareholders, the shareholders of a majority of the shares entitled to vote
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at such meeting present in person or represented by proxy may adjourn the
meeting from time to time; provided however, that if the holders of any class of
stock of the Corporation are entitled to vote separately as a class upon any
matter at such meeting, any adjournment of the meeting in respect of action of
such class upon such matter shall be determined by the holders of a majority of
the shares of such class present in person or represented by proxy and entitled
to vote at such meeting, until a quorum shall be present or represented. Notice
of the adjourned meeting need not be given if the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken. At any adjourned meeting at which a quorum is present in person or
represented by proxy of any class of stock entitled to vote separately as a
class, as the case may be, any business may be transacted which might have been
transacted at the meeting as originally called.
Section 2.9. VOTING.
(a) At any meeting of shareholders, every shareholder having the right
to vote shall be entitled to vote in person or by proxy, but no such proxy shall
be voted or acted upon after eleven (11) months from its date, unless the proxy
provides for a longer period. Except as otherwise provided by law or the
Articles of Incorporation, each shareholder of record shall be entitled to one
(1) vote for each share of capital stock registered in his name on the books of
the Corporation.
(b) At a meeting at which a quorum is present, all elections of
Directors shall be determined by a plurality vote, and, except as otherwise
provided by law or the Articles of Incorporation, all other matters shall be
approved if votes cast in favor of the matter exceed the votes cast in
opposition.
Section 2.10. INSPECTORS. When required by law or directed by the
presiding officer or upon the demand of any shareholder entitled to vote, but
not otherwise, the polls shall be opened and closed, the proxies and ballots
shall be received and taken in charge, and all questions touching the
qualification of voters, the validity of proxies and the acceptance or rejection
of votes shall be decided at any meeting of the shareholders by two or more
inspectors who may be appointed by the Board of Directors before the meeting, or
if not so appointed, shall be appointed by the presiding officer at the meeting.
If any person so appointed fails to appear or act, the vacancy may be filled by
appointment in like manner.
Section 2.11. CONSENT. Unless otherwise provided in the Articles of
Incorporation, and subject to the requirements of law, any action required or
permitted by law or the Articles of Incorporation to be taken at any meeting of
the shareholders may be taken without a meeting, without prior notice and
without a vote, if a written consent, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote on such action were present or
represented by proxy and voted. Such written consent shall be filed with the
minutes of meetings of shareholders. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those shareholders who have not so consented in writing.
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ARTICLE III.
DIRECTORS
Section 3.1. NUMBER AND TENURE. There shall be such number of
Directors, no fewer than one (1), as shall from time to time be fixed by the
Board of Directors at the annual meeting or at any special meeting called for
such purpose. The Directors shall be elected at the annual meeting of the
shareholders, except for initial Directors named in the Articles of
Incorporation or elected by the incorporator, and except as provided in Section
3.2 of this Article, and each Director elected shall hold office until his
successor is elected and shall qualify or until their earlier resignation or
removal. Directors need not be shareholders.
Section 3.2. VACANCIES. If any vacancies occur on the Board of
Directors, or if any new Directorships are created, they shall be filled by a
majority of the Directors then in office, though less than a quorum, or by a
sole remaining Director. Each Director so chosen shall hold office until the
next annual election of Directors and until his successor is duly elected and
shall qualify. If there are no Directors in office, any officer or shareholder
may call a special meeting of shareholders in accordance with the provisions of
the Articles of Incorporation or these Bylaws, at which meeting such vacancies
shall be filled.
Section 3.3. RESIGNATION. Any Director may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary of
the Corporation, or, in the absence of all of the foregoing, by notice to any
other Director or officer of the Corporation. Unless otherwise specified in such
written notice, a resignation shall take effect upon delivery to the designated
Director or officer. It shall not be necessary for a resignation to be accepted
before it becomes effective.
Section 3.4. PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or outside the State of
Florida.
Section 3.5. ANNUAL MEETING. Unless otherwise agreed by the newly
elected Directors, the annual meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of shareholders, and no
notice of such meeting to either incumbent or newly elected Directors shall be
necessary.
Section 3.6. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors. A copy of every resolution fixing
or changing the time or place of regular meetings shall be mailed to every
Director at least five days before the first meeting held in pursuance thereof.
Section 3.7. SPECIAL MEETINGS. Special Meetings of the Board of
Directors may be called by the Chairman of the Board or the President on at
least (1) day actual notice to each Director, if such Special Meeting is to be
conducted by means of conference telephone or similar communications equipment
in accordance with Section 3.11, and otherwise, upon two (2) days' actual notice
if such notice is delivered personally or sent by telegram. Special Meetings
shall be
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called by the Chairman of the Board or the President in like manner and
on like notice on the written request of one-half or more of the Directors then
in office. The purpose of a Special Meeting of the Board of Directors need not
be stated in the notice of such meeting. Any and all business other than an
amendment of these Bylaws may be transacted at any special meeting, and an
amendment of these Bylaws may be acted upon if the notice of the meeting shall
have stated that the amendment of these Bylaws is one of the purposes of the
meeting. At any meeting at which every Director shall be present, even though
without any notice, any business may be transacted, including the amendment of
these Bylaws.
Section 3.8. QUORUM AND ADJOURNMENTS. Unless otherwise provided by
the Articles of Incorporation, at all meetings of the Board of Directors,
one-half of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that when the Board of Directors
consists of one (1) Director, then one (1) Director shall constitute a quorum.
If a quorum is not present at any meeting of the Board of Directors, the
Directors present may adjourn the meeting, from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 3.9. PRESIDING OFFICER. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board of Directors, if any, or if
the Chairman is not present (or if there is none), by the President, or, if the
President is not present, by such person as the Board of Directors may appoint
for the purpose of presiding at the meeting from which the President is absent.
Section 3.10. ACTION BY CONSENT. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. Such consent shall have the same force and effect as the unanimous
vote of the Board of Directors.
Section 3.11. TELEPHONE MEETINGS. Members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
Section 3.12. COMPENSATION. The Board of Directors, by the
affirmative vote of a majority of the Directors then in office and irrespective
of the personal interest of any Director, shall have authority to establish
reasonable compensation for Directors for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
Directors in connection with their duties.
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ARTICLE IV.
COMMITTEES
Section 4.1. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
(1) or more committees, each committee to consist of two (2) or more Directors
of the Corporation. The Board of Directors may designate one (1) or more persons
who are not Directors as additional members of any committee, but such persons
shall be nonvoting members of such committee. The Board of Directors may
designate one (1) or more Directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers that
may require it; but no such committee shall have power or authority to (i) take
any action which committees are prohibited from taking under Section 607.0825 of
the Florida Statutes, or (ii) amend the Articles of Incorporation, adopt an
agreement of merger or consolidation, recommend to the shareholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommend to the shareholders a dissolution of the Corporation or a
revocation of a dissolution, elect or remove officers or Directors, or amend
these Bylaws of the Corporation; and, unless the resolution or the Articles of
Incorporation expressly so provides in accordance with law, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors.
Section 4.2. MINUTES OF COMMITTEE MEETINGS. Unless otherwise provided
in the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
Section 4.3. QUORUM. A majority of the number of Directors constituting
any committee shall constitute a quorum for the transaction of business, and the
affirmative vote of such Directors present at the meeting shall be required for
any action of the committee.
Section 4.4. VACANCIES, CHANGES AND DISCHARGE. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of and to discharge any committee.
Section 4.5. COMPENSATION. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any Director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
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ARTICLE V.
NOTICES
Section 5.1. FORM AND DELIVERY.
(a) Whenever, under the provisions of law, the Articles of
Incorporation or these Bylaws, notice is required to be given to any
shareholder, it shall not be construed to require personal notice unless
otherwise specifically provided, but such notice may be given in writing, by
mail, telecopy, telegram or messenger addressed to such shareholder, at his
address as it appears on the records of the Corporation. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail, with
postage prepaid.
(b) Whenever, under the provisions of law, the Articles of
Incorporation, or these Bylaws, notice is required to be given to any Director,
it shall not be construed to require personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such Director at the usual place of
residence or business of such Director as in the discretion of the person giving
such notice will be likely to be received most expeditiously by such Director.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, with postage prepaid.
Section 5.2. WAIVER. Whenever any notice is required to be given
under the provisions of law, the Articles of Incorporation or these Bylaws, a
written waiver of notice, signed by the person or persons entitled to said
notice, whether before or after the time for the meeting stated in such notice,
shall be deemed equivalent to such notice.
ARTICLE VI.
OFFICERS
Section 6.1. DESIGNATIONS. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President and a Secretary.
The Board of Directors may also choose a Chairman of the Board, one (1) or more
Vice Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1)
or more Assistant Treasurers and such other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by his signature. All officers and agents of the Corporation shall exercise
such powers and perform such duties as shall from time to time be determined by
the Board of Directors.
Section 6.2. TERM OF OFFICE AND REMOVAL. The Board of Directors at
its annual meeting after each annual meeting of shareholders or at a special
meeting called for that purpose shall choose officers and agents, if any, in
accordance with the provisions of Section 6.1. Each officer of the Corporation
shall hold office until his successor is elected and shall qualify. Any officer
or agent elected or appointed by the Board of Directors may be removed, with or
without cause, at any time by the affirmative vote of a majority of the
Directors then in office. Any vacancy
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occurring in any office of the Corporation may be filled for the unexpired
portion of the term by the Board of Directors.
Section 6.3. COMPENSATION. The salaries of all officers and agents,
if any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he is also a Director of the Corporation.
Section 6.4. CHAIRMAN OF THE BOARD AND THE PRESIDENT. The Chairman of
the Board shall be the chief executive officer of the Corporation. If there is
no Chairman of the Board, the President shall be the chief executive officer of
the Corporation. The duties of the Chairman of the Board, and of the President
at the direction of the Chairman of the Board, shall be the following:
(i) Subject to the direction of the Board of Directors, to have
general charge of the business, affairs and property of the Corporation
and general supervision over its other officers and agents and, in
general, to perform all duties incident to the office of Chairman of
the Board (or President, as the case may be) and to see that all orders
and resolutions of the Board of Directors are carried into effect.
(ii) Unless otherwise prescribed by the Board of Directors, to have
full power and authority on behalf of the Corporation to attend, act
and vote at any meeting of security holders of other Corporations in
which the Corporation may hold securities. At such meeting the Chairman
of the Board (or the President, as the case may be) shall possess and
may exercise any and all rights and powers incident to the ownership of
such securities that the Corporation might have possessed and exercised
if it had been present. The Board of Directors may from time to time
confer like powers upon any other person or persons.
(iii) To preside over meetings of the shareholders and of the Board
of Directors, to call special meetings of shareholders, to be an
ex-officio member of all committees of the Board of Directors, and to
have such other duties as may from time to time be prescribed by the
Board of Directors.
Section 6.5. THE VICE PRESIDENT. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the President and shall generally
assist the President and perform such other duties and have such other powers as
may from time to time be prescribed by the Board of Directors.
Section 6.6. THE SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of shareholders and record all votes and
the proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. The Secretary shall give, or cause to
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tbe given, notice of all meetings of shareholders and special meetings
of the Board of Directors, and shall perform such other duties as may from time
to time be prescribed by the Board of Directors or the President, under whose
supervision he shall act. The Secretary shall have custody of the seal of the
Corporation, and, or an Assistant Secretary, shall have authority to affix the
same to any instrument requiring it, and, when so affixed, the seal may be
attested by the signature of the Secretary or by the signature of such Assistant
Secretary.
Section 6.7. THE ASSISTANT SECRETARY. The Assistant Secretary, if any
(or in the event there be more than one (1), the Assistant Secretaries in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.8. THE TREASURER. The Treasurer, if any, shall have the
custody of the corporate funds and other valuable effects, including 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 depositories as
may from time to time 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 regular meetings of the board, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation.
Section 6.9. THE ASSISTANT TREASURER. The Assistant Treasurer, if any,
(or in the event there be more than one (1), the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.10. TRANSFER OF AUTHORITY. In case of the absence of any
officer or for any other reason that the Board of Directors deems sufficient,
the Board of Directors may transfer the powers or duties of that officer to any
other officer or to any Director or employee of the Corporation, provided a
majority of the full Board of Directors concurs.
Section 6.11. GIVING OF BOND BY OFFICERS. All officers of the
Corporation, if required to do so by the Board of Directors, shall furnish bonds
to the Corporation for the faithful performance of their duties, in such
penalties and with such conditions and security as the Board shall require.
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ARTICLE VII.
STOCK CERTIFICATES; DIVIDENDS; CONTROL SHARES REDEMPTION
Section 7.1. FORM AND SIGNATURES. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by or in the name of
the Corporation, by the Chairman of the Board, the President or a Vice President
and the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation, certifying the number and class (and series, if
any) of shares owned by him, and bearing the seal of the Corporation. Such seal
and any or all of the signatures on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 7.2. REGISTRATION OF TRANSFER. Upon surrender to the
Corporation or any transfer agent of the Corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 7.3. REGISTERED SHAREHOLDERS. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive right of a
person who is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions, to vote as such owner, and to
hold liable for calls and assessments a person who is registered on its books as
the owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
Section 7.4. ISSUANCE OF CERTIFICATES. No certificate shall be issued
for any share until (i) consideration for such share in the form of cash,
services rendered or contracts for services, personal or real property, leases
of real property or a combination thereof in an amount not less than the par
value or stated capital of such share has been received by the Corporation and
(ii) the Corporation has received a binding obligation of the subscriber or
purchaser to pay the balance of the subscription or purchase price.
Section 7.5. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen 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 lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require, and to give the Corporation a bond in
such sum, or other security in such form as it may direct, as indemnity
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against any claim that may be made against the Corporation on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 7.6. DIVIDENDS. Subject to the provisions of the Articles of
Incorporation, the Board of Directors shall have power to declare and pay
dividends upon shares of stock of the Corporation, but only out of funds
available for the payment of dividends as provided by law.
Section 7.7. REDEMPTION OF CONTROL SHARES. As provided by the Florida
Business Corporation Act, if a person acquiring control shares of the
Corporation does not file an acquiring person statement with the Corporation,
the Corporation may, at the discretion of the Board of Directors, redeem the
control shares at the fair value thereof at any time during the 60-day period
after the last acquisition of such control shares. If a person acquiring control
shares of the Corporation files an acquiring person statement with the
Corporation, the control shares may be redeemed by the Corporation, at the
discretion of the Board of Directors, if such shares are not accorded full
voting rights by the shareholders as provided by law.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. DIRECTORS, OFFICERS. EMPLOYEES OR AGENTS.
(a) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner that he reasonably believed to be in or not opposed to the best interests
of the Corporation and, with respect to any criminal action or a proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was 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 expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if
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he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made under this paragraph (b) in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Corporation unless and only to the extent that the court in which such
action or suit was brought or other court of competent jurisdiction shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
(c) To the extent that a Director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Article VIII, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Article
VIII (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b)
of this Article VIII. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion or (3) by the
shareholders who were not parties to such action, suit or proceeding.
(e) Expenses incurred by an officer or Director in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses provided by these
Bylaws shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any agreement,
vote of shareholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(h) The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the
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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 in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under this Article.
ARTICLE IX.
GENERAL PROVISIONS
Section 9.1. FISCAL YEAR. The fiscal year of the Corporation shall be
as determined from time to time by the Board of Directors.
Section 9.2. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Florida." The seal or any facsimile thereof may be, but need not be,
unless required by law, impressed or affixed to any instrument executed by an
officer of the Corporation.
Section 9.3. CHECKS, NOTES, ETC. All checks, drafts, bills of exchange,
acceptances, notes or other obligations or orders for the payment of money shall
be signed and, if so required by the Board of Directors, countersigned by such
officers of the corporation and/or other persons as the Board of Directors from
time to time shall designate.
Checks, drafts, bills of exchange, acceptance notes, obligations and
orders for the payment of money made payable to the Corporation may be endorsed
for deposit to the credit of the Corporation with a duly authorized depository
by the Treasurer and/or such other officers or persons as the Board of Directors
from time to time may designate.
Section 9.4. LOANS. No loans and no renewals of any loans shall be
contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized to do so, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company, or
other institution or from any firm, corporation, or individual, and for such
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
Section 9.5. CONTRACTS. Except as otherwise provided in these Bylaws or
as otherwise directed by the Board of Directors, the President or any Vice
President shall be authorized to execute and deliver, in the name and on behalf
of the Corporation, all agreements, bonds, contracts, deeds, mortgages, and
other instruments, either for the Corporation's own account or in a fiduciary or
other capacity, and the seal of the Corporation, if appropriate, shall be
affixed thereto by any of such officers or the Secretary or an Assistant
Secretary. The Board of Directors, the President or any Vice President
designated by the Board of Directors may authorize any other officer, employee
or agent to execute and deliver, in the name and on behalf of the Corporation,
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agreements, bonds, contracts, deeds, mortgages, and other instruments,
either for the Corporation's own account or in a fiduciary or other capacity
and, if appropriate, to affix the seal of the Corporation thereto. The grant of
such authority by the Board or any such officer may be general or confined to
specific instances.
ARTICLE X.
AMENDMENTS
Section 10.1. These Bylaws may be altered, amended or repealed or new
Bylaws may be adopted by the shareholders or by the Board of Directors, to the
extent that such power is conferred upon the Board of Directors by the Articles
of Incorporation, at any regular meeting of the shareholders or of the Board of
Directors or at any special meeting of the shareholders or of the Board of
Directors if notice of such proposed alteration, amendment, repeal or adoption
of new Bylaws be contained in the notice of such special meeting.
14
EXHIBIT 21
SUBSIDIARIES OF TSI DELAWARE
1-800-CRUISES, Inc.
ABC Corporate Services, Inc.
AutoEurope, LLC AutoNet International, Inc.
Cruise Mart, Inc.
Cruise Masters, Inc.
Cruise Outlets of the Carolinas, Inc.
Cruise Time, Inc.
CruiseOne, Inc.
Cruises Inc.
Cruises Only, LLC
CruiseWorld, Inc.
D-FW Tours, Inc., d/b/a D-FW Travel Arrangements
Diplomat Tours, Inc., d/b/a International Airline Consolidators
Gold Coast Travel Agency Corporation, Inc. d/b/a Gold Coast Cruise Center
Goodfellow Enterprises, Inc. d/b/a The Travel Company
Jubilee Enterprises, Inc. d/b/a The Travel Dept.
Lexington Services Corporation (formerly Lexington Services, Inc.)
Lexington Services Associates, Ltd.
Lexington Services Limited, Inc.
Landry & Kling, Inc.
Ship `N' Shore Cruises, Inc.
SNS Coachline, Inc.
SNS Travel Marketing, Inc.
The Anthony Dean Corporation, d/b/a Cruise Fairs of America
The Cruise Line, Inc.
Travel 800, LLC, d/b/a 1-800-FLY CHEAP
Trax Software, Inc.
EXHIBIT 23.1
[ARTHUR ANDERSEN LETTERHEAD]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
use of our reports and to all references to our firm included in or made a part
of this Form 10.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
West Palm Beach, Florida,
October 26, 1998.
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Form 10 of Travel
Services International, Inc. of our report dated spril 17, 1998 (except Note 6,
as to which the date is June 1, 1998), with respect to the financial statements
of Lexington Services Associates, Ltd, included in the Registration Statement
(Form S-1 No.333-56567) of Travel Services International, Inc. filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
October 26, 1998
