EXHIBIT 2.2
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BYLAWS
OF
THE FLAG GROUP0, INC.
A FLORIDA CORPORATION
ARTICLE I. SHAREHOLDERS
Section 1. Annual Meeting. The Annual Meeting of Shareholders of the
Corporation shall be held in or out of the State of Florida during the month of
March of each year at such date and time as shall be designated for any such
meeting by the Board of Directors for the purpose of electing Directors and for
the transaction of any proper business. The Board of Directors may designate in
the notice of Annual Meeting any place, either in or out of the State of
Florida, as the place of meeting for any Annual Meeting of the Shareholders. If
not so designated in the notice of Annual Meeting, the meeting shall be held at
the Corporation's principal office.
Section 2. Special Meetings. Special meetings of the Shareholders shall
be held if (a) called by the Board of Directors or (b) the holders of not less
than ten percent (10%) of all the votes entitled to be cast on any issue
proposed to be considered at the special meeting sign, date and deliver to the
Corporation's Secretary one or more written demands for the meeting describing
the purpose or purposes for which it is to be held. No business shall be
transacted at any special meeting unless such business is stated in the notice
of the meeting as one of the purposes of that special meeting. The Board of
Directors (for special meetings called by the Board of Directors) or an Officer
of the Corporation (for special meetings called by the Shareholders) may
designate in the notice of special meeting any place, either in or out of the
State of Florida, as the place of meeting for such special meeting of the
Shareholders. If not so designated in the notice of special meeting, the meeting
shall be held at the Corporation's principal office.
Section 3. Notice of Meeting. Notice of each Annual Meeting and special
meeting of the Shareholders stating the date, time and place of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called shall be delivered to each Shareholder of record entitled to vote at
such meeting, no fewer than ten (10) nor more than sixty (60) days before the
date of the meeting, either in person, by telegraph, telephone, teletype,
facsimile or other form of electronic communication, or by mail or courier
service, by or at the direction of the President, the Secretary, or the other
person(s) calling the meeting. If mailed, such notice must be by first class
mail, except if mailed thirty (30) days or more before the date of the meeting,
in which case it may be done by a class other than first class. Such notice
shall be deemed to be delivered when deposited in the United States Mail,
addressed to the Shareholder at his/her address as it appears on the stock
transfer books of the Corporation, with postage thereon prepaid. All other forms
of notice shall be effective when received. Notwithstanding the foregoing, no
notice of a meeting of the Shareholders need be given to a Shareholder if (a) an
annual report and proxy statements for two (2) consecutive Annual Meetings of
Shareholders or (b) all (and at least two (2)) checks in payment of dividends or
interest on securities during a twelve-month period, have been sent by
first-class United States mail, addressed to the Shareholder at her/his address
as it appears on the share transfer books of the
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Corporation, and returned undeliverable. The obligation of the Corporation to
give notice of a meeting of the Shareholders to any such Shareholder shall be
reinstated once the Corporation has received a new address for such Shareholder
for entry on its share transfer books.
Section 4. Notice of Adjourned Meeting. If an Annual Meeting or special
meeting of the Shareholders is adjourned to a different date, time or place, it
shall not be necessary to give any notice of the adjourned meeting if the date,
time and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and any business may be transacted at the
adjourned meeting that might have been transacted on the original date of the
meeting. If a meeting is adjourned to a date more than one hundred twenty (120)
days after the date fixed for the original meeting, and the Board of Directors
fixes a new record date, notice of the adjourned meeting must be given to
persons who are Shareholders as of the new record date who are entitled to
notice of the meeting.
Section 5. Waiver of Notice. A Shareholder may waive any notice
required by any statute, the Articles of Incorporation or the Bylaws before or
after the date and time stated in the notice. The waiver must be in writing
signed by the Shareholder entitled to such notice, and delivered to the
Corporation. Neither the business to be transacted at, nor the purpose of, any
Annual Meeting or special meeting of the Shareholders need be specified in any
written waiver of notice. Attendance of a Shareholder at a meeting shall
constitute a waiver of notice of such meeting, unless the Shareholder objects,
at the beginning of the meeting, to the transaction of any business. Attendance
shall also constitute a waiver of objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the Shareholder objects to considering the matter
when it is presented.
Section 6. Voting Entitlement of Shares. Each outstanding share,
regardless of class, is entitled to one (1) vote on each matter submitted to a
vote at a meeting of Shareholders.
Notwithstanding the foregoing, the shares of the Corporation are not
entitled to vote if they are:
(a) owned, directly or indirectly, by a second corporation, domestic or
foreign, and the first corporation owns, directly or indirectly, a majority of
the shares entitled to vote for directors of the second corporation; or
(b) redeemable shares, after notice of redemption is mailed to the
holders thereof and a sum sufficient to redeem such shares has been deposited
with a bank, trust
company, or other financial institution upon an irrevocable obligation to pay
the holders the redemption price upon surrender of the shares.
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The Corporation may vote any shares held by it in a fiduciary capacity.
Section 7. Proxies. A Shareholder, other person entitled to vote on
behalf of a Shareholder or attorney-in-fact may vote the Shareholder's share in
person or by proxy.
A Shareholder may appoint a proxy to vote or otherwise act for such
Shareholder by signing an appointment form, either personally or by the
Shareholder's attorney-in-fact. A telegram or cablegram appearing to have been
transmitted by such person, or a photographic, photostatic, or equivalent
reproduction of an appointment form is a sufficient appointment form. An
appointment of a proxy is effective when received by the Secretary or other
officer or agent authorized to tabulate votes, and is valid for up to eleven
(11) months unless a longer period is expressly provided in the appointment
form, regardless of the death or incapacity of the Shareholder appointing a
proxy (unless notice of the death or incapacity is received by the Secretary or
other officer or agent authorized to tabulate votes before the proxy exercises
the Shareholder's authority under the appointment).
An appointment of a proxy is revocable by the Shareholder unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest.
Section 8. Shareholder Quorum and Voting. A majority of the shares
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of Shareholders. This quorum requirement can be changed only by an
amendment to the Corporation's Articles of Incorporation. When a specified item
of business is required to be voted on by a class or series of stock, a majority
of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series.
If a quorum exists, action on a matter other than the election of
Directors is approved if the votes cast by the holders of the shares represented
at the meeting and entitled to vote on the subject matter favoring the action
exceed the votes cast opposing the action.
After a quorum has been established at a meeting of the Shareholders,
the subsequent withdrawal of Shareholders, so as to reduce the number of shares
entitled to vote at the meeting below the number required for a quorum, shall
not affect the validity of any action taken at the meeting before or after such
withdrawal, or at any adjournment thereof.
Where a quorum is not present, the holders of a majority of the shares
represented, and who would be entitled to vote at a meeting if a quorum were
present, may adjourn such meeting from time to time.
Section 9. Record Date and Shareholder List. The Board of Directors of
the Corporation shall fix a record date to determine the Shareholders entitled
to notice of a meeting of the Shareholders, to vote, or to take any other
action. Such record date may not be more than seventy (70) days before the
meeting or action requiring a determination of Shareholders and may not be a
date preceding the date upon which the resolution fixing the record date is
adopted.
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After fixing a record date for a meeting, the Corporation shall prepare
an alphabetical list of the names arranged by voting group of all the
Shareholders who are entitled to notice of a meeting of the Shareholders, with
the address of, and the number and class and series, if any of shares held by,
each such Shareholder.
The Shareholder list must be available for inspection by any
Shareholder for a period of ten (10) days prior to the meeting or such shorter
time as exists between the record date and the meeting and continuing through
the meeting, at the Corporation's principal office, at a place identified in the
meeting notice in the city where the meeting will be held, or at the office of
the Corporation's transfer agent or registrar. A Shareholder or her/his agent or
attorney is entitled on written demand to inspect the list during regular
business hours and at the Shareholder's expense, during the period it is
available for inspection, on the conditions that: (a) the Shareholder's demand
is made in good faith and for a proper purpose, (b) the Shareholder describes
with reasonable particularity the Shareholder's purpose and the records the
Shareholder desires to inspect and (c) the records are directly connected with
the Shareholder's purpose.
The Corporation shall make the Shareholder list available at the
meeting, and any Shareholder or her/his agent or attorney is entitled to inspect
the list at any time during the meeting or any adjournment.
The Shareholder list is prima facie evidence of the identity of
Shareholders entitled to examine the Shareholder list or to vote at a meeting of
Shareholders.
If the requirements of this section have not been substantially
complied with or if the Corporation refuses to allow a Shareholder or her/his
agent or attorney to inspect the Shareholder list before or at the meeting, the
meeting shall be adjourned until such requirements are complied with on the
demand of any Shareholder in person or by proxy who failed to get such access.
Refusal or failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
Section 10. Action by Shareholders Without a Meeting. Any action
required or permitted to be taken at any Annual Meeting or special meeting of
the Shareholders may be taken without a meeting, without prior notice and
without a vote. To be effective, the action must be taken by the holders of
outstanding stock of each voting group entitled to vote thereon, having not less
than the minimum number of votes with respect to each voting group that would be
necessary to authorize or take such action at a meeting at which all voting
groups and shares entitled to vote thereon were present and voted. To be
effective, the action must also be evidenced by one or more written consents
describing the action taken, dated and signed by approving Shareholders having
the requisite number of votes of each voting group entitled to vote thereon, and
delivered to the Corporation at its principal office in the State of Florida,
its principal place of business, the Secretary of the Corporation, or another
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of Shareholders are recorded. No written consent shall
be effective to take the corporate action referred to therein unless, within
sixty (60) days after the date of the earliest dated consent delivered in the
manner required by this section,
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written consents signed by the number of holders required to take action is
delivered to the Corporation by delivery as set forth in this section.
Any written consent may be revoked prior to the date that the
Corporation receives the required number of consents to authorize the proposed
action. No revocation is effective unless in writing and until received by the
Corporation at its principal office in the State of Florida or its principal
place of business, or received by the Secretary of the Corporation or other
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of Shareholders are recorded.
A consent signed under this section has the effect of a meeting vote
and may be described as such in any document, and shall be filed with the
minutes of proceedings of Shareholders. If the action to which the Shareholders
consent is such as would have required the filing of a certificate if such
action had been voted on by Shareholders at a meeting thereof, the certificate
filed shall state that written consent has been given in accordance with the
provisions of this section.
Within ten (10) days after obtaining such authorization by written
consent, notice must be given to those Shareholders who have not consented in
writing or who are not entitled to vote in the action. The notice shall fairly
summarize the material features of the authorized action and, if the action be a
merger, consolidation or sale or exchange of assets, the notice shall contain a
clear statement of the right of Shareholders dissenting therefrom to be paid the
fair value of their shares upon compliance with the provisions of the Florida
Business Corporation Act regarding the rights of dissenting Shareholders.
ARTICLE II. DIRECTORS
Section 1. Requirement for and Duties of Board of Directors. Except as
otherwise provided by the Corporation's Articles of Incorporation, all corporate
powers shall be exercised by or under the authority of, and the business and
affairs of the Corporation shall be managed under the direction of, the Board of
Directors.
Section 2. Qualifications and Number of Directors. Directors must be
natural persons who are eighteen (18) years of age or older, but need not be
residents of the State of Florida or shareholders of the Corporation. The Board
of Directors must consist of one (1) or more individuals. From time to time, the
number of Directors may be increased or decreased by resolution of the Board of
Directors.
Section 3. Election and Terms of Directors. Directors shall be elected
by a plurality of the votes cast by the shares entitled to vote at the first
Annual Meeting of Shareholders and at each Annual Meeting thereafter.
The terms of the initial Directors of the Corporation expire at the
first Annual Meeting of Shareholders. The terms of all other Directors expire at
the next Annual Meeting of Shareholders following their election. Despite the
expiration of a Director's term, s/he continues to serve until the Director's
successor is elected and qualifies or until there is a decrease in the number of
Directors.
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Section 4. Resignations of Directors. A Director of the Corporation may
resign at any time by delivering written notice to the Board of Directors, the
Chairman of the Board of Directors, or the Corporation. Such resignation shall
take effect when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later date, the Board of
Directors may fill the pending vacancy before the effective date if the Board of
Directors provides that the successor does not take office until the effective
date.
Section 5. Removal of Directors. Any Director may be removed with or
without cause by the Shareholders at a meeting of the Shareholders, provided the
notice of the meeting states that the purpose, or one of the purposes, of the
meeting is removal of the Director.
Section 6. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
Directors, may be filled by the affirmative vote of a majority of the remaining
Directors, though less than a quorum of the Board of Directors, or by the
Shareholders. The term of a Director elected to fill a vacancy expires at the
next meeting of the Shareholders at which Directors are elected.
Section 7. Compensation of Directors. The Board of Directors may pay
each Director a stated salary as such or a fixed sum for attendance at meetings
of the Board of Directors or any committee thereof, or both, and may reimburse
each Director for her/his expenses of attendance at each meeting. The Board of
Directors may also pay to each such Director rendering services to the
Corporation not ordinarily rendered by Directors, as such, special compensation
appropriate to the value of such services, as determined by the Board of
Directors, from time to time. None of these payments shall preclude any Director
from serving the Corporation in any other capacity and receiving compensation
therefor. The Board of Directors may determine the compensation of a Director
who is also an Officer for service as an Officer as well as for service as a
Director.
Section 8. Meetings. The Board of Directors may hold regular or special
meetings in or out of the State of Florida. Notice of any adjourned meeting
shall be given to the Directors who were not present at the time of the
adjournment and, unless the time and place of the adjourned meeting are
announced at the time of adjournment, to the other Directors. Meetings of the
Board of Directors may be called by the Chairman of the Board, the President or
any two (2) Directors. Directors shall be deemed present at a meeting of the
Board of Directors if a conference telephone or similar communications equipment
is used by means of which all persons participating in the meeting may
simultaneously hear each other.
Section 9. Action by Directors Without a Meeting. Any action required
or permitted to be taken by the Board of Directors at a Board of Directors'
meeting may be taken without a meeting if a consent in writing, setting forth
the action so taken, shall be signed by all of the Directors. A signed Consent
has the effect of a meeting vote and may be described as such in any document.
Any such action taken is effective when the last Director signs the Consent,
unless the Consent specifies a different effective date.
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Section 10. Notice of Meetings. Regular meetings of the Board of
Directors may be held without notice of the date, time, place, or purpose of the
meeting. Special meetings of the Board of Directors must be preceded by at least
one (1) day's notice of the date, time, and place of the meeting. The notice
need not describe the purpose of the special meeting. Notice may be communicated
in person or by telephone (where oral notice is reasonable under the
circumstances), by telecopy, telegraph, teletype or other form of electronic
communication, or by mail. Written notice is effective at the earlier of receipt
or five (5) days after deposit in the United States mail.
Section 11. Waiver of Notice. A Director may waive the requirement of
notice of a special meeting of the Board of Directors by signing a waiver of
notice either before or after the meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting and a waiver of any
and all objections to the place or time of such meeting or the manner in which
it has been called or convened, except when at the beginning of the meeting or
promptly upon arrival at the meeting, the director states any objection to the
transaction of business because the meeting is not lawfully called or convened.
Section 12. Quorum and Voting. A majority of the Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors; but if less than such majority is present at the meeting, a
majority of the Directors present may adjourn such meeting to another time and
place without further notice.
The affirmative vote of the majority of the Directors present at a
meeting at which a quorum is present and where a vote is taken shall be the act
of the Board of Directors. A Director who is present at a meeting of the Board
of Directors; at which corporate action is taken is presumed to have assented to
the action taken unless the Director votes against or abstains from such action
or objects at the beginning of the meeting (or promptly upon his/her arrival) to
holding it or transacting specified business at the meeting.
Section 13. Committees. The Board of Directors, by resolution adopted
by a majority of the full Board of Directors, may designate from among its
members an executive committee and one (1) or more other committees each of
which, to the extent provided in such resolution, shall have and may exercise
all the authority of the Board of Directors, except as limited by the Articles
of Incorporation, these Bylaws or law. Sections of these Bylaws which govern
meetings, notice and waiver of notice, and quorum and voting requirements of the
Board of Directors apply to committees and their members as well. Action
required or permitted to be taken at a committee meeting may be taken without a
meeting if the action is taken by all members of the committee. The action must
be evidenced by one (1) or more written consents describing the action taken and
signed by each committee member. Committee members shall be deemed present at a
committee meeting if a conference telephone or similar communications equipment
is used by means of which all persons participating in the meeting may
simultaneously hear each other. Each committee must have two (2) or more members
who serve at the pleasure of the Board of Directors. The Board, by resolution
adopted by a majority of the full Board of Directors, may designate one (1) or
more Directors as alternate members of any such
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committee who may act in the place and stead of any absent member or members at
any meeting of such committee.
Section 14. General Standards for Directors. A Director shall perform
her/his duties as a Director, including her/his duties as a member of a
committee: (a) in good faith, (b) in a manner the Director reasonably believes
to be in the best interest of the Corporation, and (c) with the care an
ordinarily prudent person in a like position would exercise under similar
circumstances. In performing her/his duties, a Director is entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, if prepared or presented by:
(a) One or more Officers or employees of the Corporation who the
Director reasonably believes to be reliable and competent in the matters
present,
(b) Legal counsel, public accountants, or other persons as to matters
which the Director reasonably believes are within such person's professional or
expert competence, or
(c) A committee of the Board of Directors of which the Director is not
a member if the Director reasonably believes the committee merits confidence.
A Director shall not be considered to be acting in good faith if the Director
has knowledge concerning the matter in question that would cause such reliance
described above to be unwarranted. In performing her/his duties, a Director may
consider such factors as the Director deems relevant, including the long-term
prospects and interests of the Corporation and its Shareholders, and the social,
economic, legal, or other effects of any action on the employees, suppliers, and
customers of the Corporation or its subsidiaries, the communities and society in
which the Corporation or its subsidiaries operate, and the economy of the state
and the nation.
Section 15. Director Conflicts of Interest. No contract or other
transaction between the Corporation and one (1) or more of its Directors or any
other corporation, firm, association or entity in which one (1) or more of its
Directors are directors or officers or are financially interested, shall be
either void or voidable because of such relationship or interest or because such
Director or Directors are present at the meeting of the Board of Directors or a
committee thereof that authorizes, approves or ratifies such contract or
transaction or because her/his/their votes are counted for such purpose if:
(a) The fact of such relationship or interest is disclosed or known to
the Board of Directors or committee that authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested Directors; or
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(b) The fact of such relationship or interest is disclosed or known to
the Shareholders entitled to vote, and they authorize, approve or ratify such
contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board of Directors, a committee
or the Shareholders.
Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or a committee thereof that
authorizes, approves or ratifies such contract or transaction. A conflict of
interest transaction is authorized, approved, or ratified if it receives the
vote of a majority of the shares entitled to be counted under this section.
Shares owned by or voted under the control of a Director who has a relationship
or interest in a conflict of interest transaction may not be counted in a vote
of Shareholders to determine whether to authorize, approve, or ratify a conflict
of interest transaction. A majority of the shares, whether or not present, that
are entitled to be counted in a vote on a conflict of interest transaction
constitutes a quorum for the purpose of taking action under this section.
Section 16. Loans to Officers, Directors, and Employees; Guaranty of
Obligations. The Corporation may lend money to, guarantee any obligation of, or
otherwise assist any Officer, Director, or employee of the Corporation or any of
its subsidiaries, whenever, in the judgment of the Board of Directors, such
loan, guaranty, or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty, or other assistance may be with or without
interest and may be unsecured or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation.
Section 17. Liability for Unlawful Distributions. A Director who votes
for or assents to a distribution made in violation of the Articles of
Incorporation or an unlawful distribution as defined in this section is
personally liable to the Corporation for the amount of the distribution that
exceeds what could have been distributed without violating the Articles of
Incorporation or without constituting an unlawful distribution if it is
established that s/he did not adhere to the general standards for Directors. An
"unlawful distribution" is one that would have the result that (a) the
Corporation would not be able to pay its debts as they become due in the usual
course of business or (b) the Corporation's total assets would be less than the
sum of its total liabilities plus the amount that would be needed, if the
Corporation were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution of Shareholders whose preferential rights
are superior to those receiving the distribution.
ARTICLE III. OFFICERS
Section 1. Officers. The Officers of the Corporation shall include a
President, a Secretary, and a Treasurer, each of whom shall be appointed by the
Board of Directors. The Board of Directors, at its discretion, may also choose a
Chairman of the Board of Directors (who must be a Director). Such other
officers, assistant officers and agents as may be deemed necessary may be
appointed by the Board of Directors. The Board of Directors shall delegate to
one of the Officers the responsibility for preparing minutes of the meetings of
the Shareholders or Directors and for authenticating records of the Corporation.
Any two or more offices may be held by the same person.
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Section 2. Appointment and Term of Office. The Officers of the
Corporation shall be appointed at the Organizational Meeting and at each Annual
Meeting of the Shareholders following the appointment of Directors. Each Officer
shall hold office until the appointment of Directors at the next Annual Meeting
of the Shareholders. Despite the expiration of an Officer's term, such Officer
will continue to serve until her/his successor is appointed and qualifies.
Section 3. Resignation and Removal of Officers. An Officer may resign
at any time by delivering notice to the Corporation. A resignation is effective
when the notice is delivered unless the notice specifies a later effective date.
If a resignation is made effective at a later date and the Corporation accepts
the future effective date, the Board of Directors may fill the pending vacancy
before the effective date if the Board of Directors provides that the successor
does not take office until the effective date. The Board of Directors may remove
any Officer at any time with or without cause. The appointment of an Officer
does not itself create rights. An Officer's removal does not affect the
Officer's contract rights, if any, with the Corporation. An Officer's
resignation does not affect the Corporation's contract rights, if any, with the
Officer.
Section 4. Vacancies. A vacancy in any office may be filled by the
Board of Directors for the unexpired portion of the term.
Section 5. Salaries. The salaries of the Officers shall be fixed by the
Board of Directors and no Officer shall be prevented from receiving such salary
by reason of the fact that the Officer is also a Director of the Corporation.
Section 6. Chairman. The Chairman, if one has been appointed by the
Board of Directors, shall preside, when available, at all meetings of the
Shareholders and the Board of Directors. He shall have general executive powers
as well as the specific powers conferred by these Bylaws and s/he shall also
have and may exercise such further powers and duties as from time to time may be
conferred upon or assigned to her/him by the Board of Directors.
Section 7. President. The President shall be the chief executive
officer of the Corporation, and, under the direction of the Board of Directors,
shall have general responsibility for the management and direction of the
business, properties and affairs of the Corporation. The President shall have
general executive powers, including all powers required by law to be exercised
by a president of a corporation as such, as well as the specific powers
conferred by these Bylaws or by the Board of Directors.
Section 8. Vice President. In the absence of the President or in the
event of her/his death, inability or refusal to act, the Vice President, if one
has been appointed by the Board of Directors (or in the event there is more than
one (1) Vice President, the Vice Presidents in the order of their appointment),
shall perform the duties of the President, and when so acting shall have all the
powers of and be subject to all the restrictions upon the President.
Each Vice President shall have general executive powers as well as the
specific powers conferred by these Bylaws. Each Vice President shall also have
such further
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powers and duties as may from time to time be conferred upon, or assigned to,
her/him by the Board of Directors or the President.
Section 9. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the Board of Directors and the Shareholders in one (1) or more
books provided for that purpose, (b) see that all notices are duly given in
accordance with the provisions of these Bylaws or as required by law, (c) be
custodian of the corporate records and affix the corporate seal to all documents
authorizing the use of the corporate seal, (d) be the registrar of the
Corporation and keep a register of the mailing address of each Shareholder,
which address shall be furnished to the Secretary by the Shareholders, (e) have
charge of the stock transfer books of the Corporation, and (f) in general
perform all duties incident to the office of Secretary and such other duties
assigned to the Secretary by the President or by the Board of Directors.
Section 10. Treasurer. The Treasurer shall (a) have charge and custody
of and be responsible for all funds and securities of the Corporation, (b)
receive and give receipts for monies due and payable to the Corporation from any
source whatsoever, and deposit all such monies in the name of the Corporation in
such banks, trust companies or other depositories as the Board of Directors may
select, and (c) in general perform all of the duties assigned to the Treasurer
by the President or by the Board of Directors. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of her/his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine.
Section 11. Assistant Secretaries and Assistant Treasurers. If
appointed, the Assistant Secretaries and Assistant Treasurers shall perform such
duties as shall be assigned to them respectively by the President or by the
Board of Directors.
ARTICLE IV. SHARE CERTIFICATES
Section 1. Share Certificates. Certificates representing shares of the
Corporation shall be in such form as shall be determined by the Board of
Directors in accordance with the Florida Business Corporation Act. The share
certificates shall state the name of the Corporation and that the Corporation is
organized under the laws of the State of Florida; the name of the person to whom
issued; and the number and class of shares and the designation of the series, if
any, the certificate represents. The certificates shall be signed (either
manually or in facsimile) by the President or a Vice President and by the
Secretary or an Assistant Secretary and may be sealed with the corporate seal or
a facsimile thereof. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer books of the Corporation. No certificate
shall be issued for any share until such share is fully paid. Consideration in
the form of a promise to pay money or to perform services is received by the
Corporation at the time of the making of the promise, unless the agreement
specifically provides otherwise.
Section 2. Transfer of Shares. The Corporation or its duly authorized
agent shall register a share certificate presented to it for transfer if (a) the
certificate is endorsed or the
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instruction was originated by the appropriate person or persons, (b) reasonable
assurance is given that those endorsements or instructions are genuine and
effective, (c) the Corporation or its duly authorized agent has no duty as to
adverse claims or has discharged the duty, (d) any applicable law relating to
the collection of taxes has been complied with, and (e) the transfer is in fact
rightful or is to a purchaser for value in good faith and without notice of any
adverse claim. Any new certificate shall be issued only upon surrender of the
old certificate, which shall be cancelled upon the issuance of the new
certificate. The person whose name appears as Shareholder on the books of the
Corporation shall be deemed by the Corporation to be the owner of the shares for
all purposes.
Section 3. Lost, Destroyed and Stolen Share Certificates. If the owner
of a share certificate claims the share certificate has been lost, destroyed or
wrongfully taken, the Corporation or its duly authorized agent shall issue a new
share certificate in the place of the original share certificate if the owner
(a) requests the issuance of a new share certificate before the Corporation or
its duly authorized agent has notice that the share certificate has been
acquired by a purchaser for value in good faith and without notice of any
adverse claim, (b) files with the Corporation or its duly authorized agent a
sufficient indemnity bond, and (c) satisfies any other reasonable requirements
imposed by the Corporation or its duly authorized agent.
ARTICLE V. RECORDS AND REPORTS
Section 1. Corporate Records. The Corporation shall keep, as permanent
records, minutes of all meetings of its Shareholders and Board of Directors, a
record of all actions taken by the Shareholders or Board of Directors without a
meeting, and a record of all actions taken by a committee of the Board of
Directors in place of the Board of Directors on behalf of the Corporation.
The Corporation shall maintain accurate accounting records and a record
of its Shareholders in a form that permits preparation of a list of the names
and addresses of all Shareholders in alphabetical order by class of shares and
showing the number and series of shares held by each. The Corporation shall
maintain its records in written form or in another form capable of conversion
into written form within a reasonable time.
The Corporation shall keep a copy of the following records:
(a) Its Articles or Restated Articles of Incorporation and all
amendments to them currently in effect;
(b) Its Bylaws or Restated Bylaws and all amendments to them currently
in effect;
(c) Resolutions adopted by its Board of Directors creating one (1) or
more classes or series of shares and fixing their relative rights, preferences,
and limitations, if shares issued pursuant to those resolutions are outstanding;
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(d) The minutes of all meetings of the Shareholders and records of all
action taken by Shareholders without a meeting for the past three (3) years;
(e) Written communications to all Shareholders generally or all
Shareholders of a class or series within the past three (3) years, including the
financial statements furnished to Shareholders under the Florida Business
Corporation Act for the past three (3) years;
(f) A list of the names and business street addresses of its current
Directors and Officers; and
(g) Its most recent Annual Report delivered to the Department of State.
Section 2. Inspection of Records by Shareholders. Any Shareholder is
entitled to inspect and copy, during regular business hours at the Corporation's
principal office, any of the records of the Corporation described in the
preceding section if s/he gives the Corporation written notice of her/his demand
at least five (5) business days before the date on which s/he wishes to inspect
and copy.
Any Shareholder is entitled to inspect and copy, during regular
business hours at a reasonable location specified by the Corporation, any of the
following records of the Corporation if the Shareholder meets the requirements
of the following paragraph and gives the Corporation written notice of her/his
demand at least five (5) business days before the date on which s/he wishes to
inspect and copy:
(a) Excerpts from minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors while acting in
place of the Board of Directors on behalf of the Corporation, minutes of any
meeting of the Shareholders, and records of action taken by the Shareholders or
Board of Directors without a meeting, to the extent not subject to inspection
under the preceding section;
(b) Accounting records of the Corporation;
(c) The record of Shareholders; and
(d) Any other books and records.
Any Shareholder may inspect and copy the records described in the
preceding paragraph only if (i) the Shareholder's demand is made in good faith
and for a proper purpose, (ii) the Shareholder describes with reasonable
particularity her/his purpose and the records the Shareholder desires to
inspect, and (iii) the records are directly connected with the Shareholder's
purpose. For purposes of this section, a "proper purpose" means a proper purpose
reasonably related to such person's interest as a Shareholder.
The Corporation may deny any such demand for inspection if the demand
was made for an improper purpose, or if the demanding Shareholder has within two
(2) years preceding the demand sold or offered for sale any list of shareholders
of the Corporation or any other corporation, has aided or abetted any person in
procuring any list of
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shareholders for any such purpose, or has improperly used any information
secured through any prior examination of the records of the Corporation or any
other corporation.
If the Corporation's principal office is outside of Florida, any
Shareholder is entitled to inspect and copy, during regular business hours, at a
reasonable location in Florida specified by the Corporation, a copy of the
Corporation's Bylaws or Restated Bylaws and all amendments to them currently in
effect and a list of the names and business street addresses of the current
Directors and Officers, if the Shareholder gives the Corporation written notice
of her/his demand at least fifteen (15) business days before the date on which
the Shareholder wishes to inspect and copy.
Section 3. Financial Statements for Shareholders. Unless modified by
resolution of the Shareholders within one hundred twenty (120) days after the
close of each fiscal year, the Corporation shall furnish its Shareholders annual
financial statements, which may be consolidated or combined statements of the
Corporation and one or more of its subsidiaries, as appropriate, which
statements include a balance sheet as of the end of the fiscal year, an income
statement for that year, and a statement of cash flows for that year. If
financial statements are prepared for the Corporation on the basis of generally
accepted accounting principles, the annual financial statements must also be
prepared on that basis.
If the annual financial statements are reported upon by a public
accountant, the accountant's report must accompany them. If not, the statements
must be accompanied by a statement of the President or the person responsible
for the Corporation's accounting records:
(a) Stating her/his reasonable belief whether the statements were
prepared on the basis of generally accepted accounting principles and, if not,
describing the basis of preparation; and
(b) Describing any respects in which the statements were not prepared
on a basis of accounting consistent with the statements prepared for the
preceding year.
The Corporation shall mail the annual financial statements to each
Shareholder within one hundred twenty (120) days after the close of each fiscal
year or within such additional time thereafter as is reasonably necessary to
enable the Corporation to prepare its financial statements if, for reasons
beyond the Corporation's control, it is unable to prepare its financial
statements within the prescribed period. Thereafter, on written request from a
Shareholder who was not mailed the statements, the Corporation shall mail the
Shareholder the latest annual financial statements.
Section 4. Other Reports to Shareholders. If the Corporation
indemnifies or advances expenses with regard to any proceeding to any Director,
Officer, employee, or agent otherwise than by court order or action by the
Shareholders or by an insurance carrier pursuant to insurance maintained by the
Corporation, the Corporation shall report the indemnification or advance in
writing to the Shareholders with or before the notice of the next meeting of the
Shareholders, or prior to such meeting if the indemnification or advance occurs
after the giving of such notice but prior to the time such meeting is held,
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which report shall include a statement specifying the persons paid, the amounts
paid, and the nature and status at the time of such payment of the litigation or
threatened litigation.
If the Corporation issues or authorizes the issuance of shares for
promises to render services in the future, the Corporation shall report in
writing to the Shareholders the number of shares authorized or issued, and the
consideration received by the Corporation, with or before the notice of the next
meeting of the Shareholders.
Section 5. Annual Reports. The Corporation shall file with the
Department of State of the State of Florida, between January 1 and May 1,
inclusive, of the year following the calendar year in which the Corporation was
incorporated and of every year thereafter, a sworn report, on such forms and
containing such information as the Department of State may prescribe. The
information contained in the Annual Report must be current as of the date the
Annual Report is executed on behalf of the Corporation.
ARTICLE VI. MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Corporation shall begin
on January 1 of each calendar year and end on December 31 of the same calendar
year.
Section 2. Dividends. The Board of Directors may, from time to time,
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms, conditions and limitations provided by the Florida
Business Corporation Act.
Section 3. Corporate Seal. The Board of Directors shall obtain a
corporate seal, which shall be circular in form and shall have inscribed thereon
the name of the Corporation and the state of incorporation, or shall obtain a
facsimile of the seal.
Section 4. Execution of Instruments. All bills, notes, checks, other
instruments for the payment of money, agreements, indentures, mortgages, deeds,
conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Corporation by the President, any Vice President, the Secretary or the
Treasurer. Any such instruments may also be signed, executed, acknowledged,
verified, delivered or accepted on behalf of the Corporation in such other
manner and by such other Officers, employees or agents of the Corporation as the
Board of Directors may direct.
Section 5. Indemnification of Officers, Directors, Employees and
Agents. The Corporation may indemnify any person who was or is a party to any
proceeding:
(a) other than an action by or in the right of the Corporation by
reason of the fact that s/he is or was a Director, Officer, employee or agent of
the Corporation, or is or was
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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 liability incurred in connection with such proceeding
including any appeal thereof, if s/he acted in good faith and in a manner s/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 her/his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement or 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 s/he reasonably believed
to be in, or not opposed to, the best interests of the Corporation or, with
respect to any criminal action or proceeding, had reasonable cause to believe
that her/his conduct was unlawful; and
(b) by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that s/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 and amounts paid in
settlement not exceeding, in the judgment of the Board of Directors, the
estimated expense of litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or settlement of such
proceeding, including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner s/he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this subsection in respect of
any claim, issue, or matter as to which such person shall have been adjudged to
be liable unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of liability but in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses that such court shall deem proper.
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
proceeding referred to in subsections (a) or (b), or in defense of any claim,
issue or matter therein, s/he shall be indemnified against expenses actually and
reasonably incurred by her/him in connection therewith.
Any indemnification under subsections (a) or (b), unless pursuant to a
determination 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 s/he has met
the applicable standard of conduct set forth in subsections (a) or (b). Such
determination shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of Directors who were not parties to such proceeding, (ii)
if such a quorum is not obtainable or, even if obtainable, by a majority vote of
the committee duly designated by the Board of Directors (in which vote Directors
who are parties may participate) consisting solely of two (2) or more Directors
not at the time parties to the proceeding, (iii) by independent legal counsel
(x) selected by the Board of Directors prescribed in subsection (i) or the
committee prescribed in subsection (ii); or (y) if a quorum of the Directors
cannot be obtained for subsection (i) and the committee cannot be designated
under subsection (ii), selected by majority vote of the full Board of Directors
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(in which Directors who are parties may participate); or (iv) by the
Shareholders by a majority vote of a quorum consisting of Shareholders who were
not parties to such proceeding or, if no such quorum is obtainable, by a
majority vote of Shareholders who were not parties to such proceeding.
Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by the preceding
paragraph shall evaluate the reasonableness of expenses and may authorize
indemnification.
Expenses incurred by an Officer or Director in defending a civil or
criminal proceeding may be paid by the Corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such Director or Officer to repay such amount if s/he is ultimately found not to
be entitled to indemnification by the Corporation pursuant to this section.
Expenses incurred by other employees and agents may be paid in advance upon such
terms or conditions as the Board of Directors deems appropriate.
The indemnification and advancement of expenses provided pursuant to
this section are not exclusive. The Corporation may make any other or further
indemnification or advancement of expenses to any of its Directors, Officers,
employees, or agents, under any bylaw, agreement, vote of Shareholders or
disinterested Directors, or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not be made to
or on behalf of any Director, Officer, employee, or agent if a judgment or other
final adjudication establishes that her/his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the Director, Officer,
employee or agent had reasonable cause to believe her/his conduct was lawful or
had no reasonable cause to believe her/his conduct was unlawful;
(b) A transaction from which the Director, Officer, employee, or agent
derived an improper personal benefit;
(c) In the case of a Director, a circumstance under which liability for
unlawful distributions may exist; or
(d) Willful misconduct or a conscious disregard for the best interests
of the Corporation in a proceeding by or in the right of the Corporation to
procure a judgment in its favor or in a proceeding by or in the right of a
Shareholder.
Indemnification and advancement of expenses as provided in this section
shall continue unless otherwise provided when authorized or ratified, 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, unless otherwise provided when authorized or ratified.
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For purposes of this section:
(a) The term "Corporation" includes, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person who is or
was a director, officer, employee, or agent of a constituent corporation, or is
or was serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, is in the same position under this section with
respect to the resulting or surviving corporation as s/he would have with
respect to such constituent corporation if its separate existence had continued.
(b) The term "other enterprises" includes employee benefit plans;
(c) The term "expenses" includes counsel fees, including those for
appeal;
(d) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses actually and reasonably incurred with
respect to a proceeding;
(e) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(f) The term "agent" includes a volunteer;
(g) The term "serving at the request of the corporation" includes any
service as a Director, Officer, employee, or agent of the Corporation that
imposes duties on such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(h) The term "not opposed to the best interest of the Corporation"
describes the actions of a person who acts in good faith and in a manner s/he
reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
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 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 her/him or incurred by
her/him in any such capacity or arising out of her/his status as such, whether
or not the Corporation would have the power to indemnify her/him against such
liability under the provisions of this section.
ARTICLE VII. AMENDMENTS
Section 1. Bylaws. The Shareholders may amend or repeal these Bylaws.
The Board of Directors may also amend or repeal these Bylaws without Shareholder
action unless otherwise provided in the Florida Business Corporation Act.
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Section 2. Articles of Incorporation. The Board of Directors of the
Corporation may propose amendments to the Articles of Incorporation for
submission to the Shareholders, and the Shareholders entitled to vote on such
amendments must approve such amendments. Notwithstanding the foregoing, the
Board of Directors may adopt amendments to the Articles of Incorporation without
Shareholder action: (1) to extend the duration of the Corporation; (2) to delete
the names and addresses of the initial directors; (3) to delete the name and
address of the initial registered agent or registered office; (4) to delete any
other information contained in the Articles of Incorporation that is solely of
historical interest; (5) to delete the authorization for a class or series of
shares authorized; (6) to change the corporate name; (7) to change the par value
for a class or series of shares; or (8) to make any other change expressly
permitted without Shareholder action by the Florida Business Corporation Act.
Unless otherwise provided in the Articles of Incorporation, the Shareholders of
the Corporation may, if the number of Shareholders of the Corporation is 35 or
less, amend the Articles of Incorporation without an act of the Directors at a
meeting for which notice of the changes to be made is given.
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