SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of earliest event reported): May 29, 1998
MASTEC, INC.
(Exact name of registrant as specified in its charter)
Florida 0-3797 65-0829355
State or other jurisdiction (Commission File Number) (I.R.S. Employer)
of incorporation
3155 N.W. 77th Avenue
Miami, Florida 33122-1205
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: 305/599-1800
Not Applicable
(Former name or former address, if changed since last report)
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Item 5. Other Events
On May 29, 1998, MasTec, Inc., a Delaware corporation (the "Company"),
consummated its reincorporation of the Company from Delaware to Florida in
accordance with the terms of a Plan of Merger, dated as of March 19, 1998 (the
"Plan"), among the Company and MasTec Reincorporation, Inc., a Florida
corporation and wholly-owned subsidiary of the Company (the "Subsidiary").
Pursuant to the Plan, the Company merged with and into the Subsidiary with the
Subsidiary being the surviving corporation (the "Surviving Corporation"). The
Surviving Corporation assumed all of the assets and liabilities of the Company,
including contractual obligations under the Company's outstanding indebtedness.
The existing Board of Directors and officers of the Company became the Board of
Directors and officers of the Surviving Corporation for identical terms of
office. The Surviving Corporation also assumed the name of "MasTec, Inc." in the
merger so that the Surviving Corporation will operate under the same name as the
Company. Pursuant to the merger each share of the Company's Common Stock issued
and outstanding was automatically converted into one fully-paid and
nonassessable share of the Common Stock, $0.10 par value per share, of the
Surviving Corporation. In addition, each currently outstanding stock option of
the Company was automatically converted into an option to purchase the same
number of shares of Common Stock of the Surviving Corporation at the same option
exercise price per share and upon the same terms and subject to the same
conditions as set forth in the option. The Company does not intend to issue new
stock certificates to stockholders of record in connection with the merger.
Instead, each certificate representing issued and outstanding shares of Common
Stock of the Company immediately prior to the effective date of the merger will
continue to evidence ownership of the shares of Common Stock of the Surviving
Corporation after the effective date of the merger.
The Surviving Corporation's Common Stock was deemed to be registered
under Section 12(b) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), pursuant to Rule 12g-3(a) thereunder upon its issuance in
exchange for the Common Stock of the Company. This Form 8-K is being filed
for the purpose of accomplishing such registration pursuant to Section 12(b) of
the Act. The Surviving Corporation's Common Stock has been substituted for
Company Common Stock on the New York Stock Exchange and will continue to trade
under the symbol "MTZ" without interruption.
Item 7. Financial Statements and Exhibits
(a) Not applicable.
(b) Not applicable.
(c) Exhibits (Exhibit numbers conform to Item 601 of
Regulation S-K):
(2.1) Plan and Agreement of
Merger (incorporated by reference to
Appendix A to the Company's definitive Proxy
Statement for its 1998 Annual Meeting of
Stockholders, dated April 14, 1998, filed
with the Commission on April 14, 1998 (the
"Proxy Statement")).
(3.1) Articles of
Incorporation of the Surviving Corporation
(incorporated by reference to Appendix B to
the Proxy Statement).
(3.2) Bylaws of the Surviving
Corporation.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: June 29, 1998 MASTEC, INC.
By: /s/ Jose M. Sariego
Senior Vice President
and General Counsel
AMENDED BYLAWS
OF
MASTEC, INC.
Amended as of May 14, 1998
ARTICLE I
Shareholders
Section 1. Annual Meeting. The annual meeting of the
shareholders of the Corporation shall be held, either within or without the
State of Florida on the third Monday in May of each year, or on such other date
as the Board of Directors may determine, and at such place and at such time as
the Board of Directors may determine and designate in the notice of the meeting
. The annual meeting of shareholders shall be held for the election of directors
of the Corporation and for any other proper business as may properly come before
the meeting.
Section 2. Special Meeting. Special meetings of the
shareholders may be called by the Board of Directors or by the President, and
shall be called by the President or by the Secretary upon the written request of
the holders of record of at least twenty-five per cent (25%) of the shares of
stock of the Corporation, issued and outstanding and entitled to vote, at such
times and at such place either within or without the State of Florida as may be
designated in the notice of the meeting. Such request shall state the purpose or
purposes of the proposed meeting.
Section 3. Notice of Meetings. Except as may be provided by
statute, written notice of an annual or special meeting of shareholders stating
the time, place, date and purpose of every meeting of shareholders shall be
delivered personally or by first-class mail not less than ten days nor more than
sixty days previous thereto to each shareholder of record entitled to vote at
such meeting. If mailed, 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 or at such other address as shall be furnished in
writing by him/her to the Corporation for such purpose. Such further notice
shall be given as may be required by law or by these Bylaws. Attendance of a
person at a meeting of shareholders in person or by proxy constitutes a waiver
of notice of the meeting except where the shareholder, at the beginning of the
meeting, objects to holding the meeting or transacting business at the meeting.
Section 4. Quorum. The holders of record of at least a
majority of the shares of the stock of the Corporation, issued and outstanding
and entitled to vote thereat, present in person or by proxy, shall, except as
otherwise provided by law or by the Articles of Incorporation, constitute a
quorum at all meetings of the shareholders. All shareholders present in person
or represented by proxy at such meeting may continue to do business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum. If, however, such quorum shall not be initially present at any
meeting of shareholders, a majority of the shareholders entitled to vote thereat
shall nevertheless have power to adjourn the meeting from time to time and to
another place, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting, at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally called. If after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at the meeting. Once a share is represented for any purpose at a meeting,
it is deemed presented for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting unless a new record date is or must be set
for that adjourned meeting.
Section 5. Organization of Meetings. Meetings of the
shareholders shall be presided over by the Chairman of the Board, if there be
one, or if he/she is not present, by the President, or if he/she is not present,
by a chairman to be chosen at the meeting. The Secretary of the Corporation, or
in his/her absence an Assistant Secretary, shall act as Secretary of the
meeting, if present.
Section 6. Voting. At each meeting of shareholders, except as
otherwise provided by law or the Articles of Incorporation, every shareholder
shall be entitled to one vote in person or by proxy for each share of stock
having voting power held by such shareholder. Except as otherwise expressly
required by the Articles of Incorporation, elections of directors shall be
determined by a plurality of the votes cast thereat and, except as otherwise
provided by statute or the Articles of Incorporation, all other action shall be
authorized if the votes cast favoring the action exceed the votes cast against
the action. Each proxy to vote shall be in writing and signed by the shareholder
or by his/her duly authorized agent or representative. A proxy is not valid
after the expiration of 11 months after its date unless the person executing it
specifies therein the length of time for which it is to continue in force.
Unless prohibited by law, a proxy otherwise validly granted by telegram shall be
deemed to have been signed by the granting shareholder. All questions regarding
the qualification of voters, the validity of proxies and the acceptance or
rejection of votes shall be decided by the presiding officer of the meeting.
At all elections of directors, the voting shall be by ballot
or in such other manner as may be determined by the shareholders present in
person or by proxy entitled to vote at such election. With respect to any other
matter presented to the shareholders for their consideration at a meeting, any
shareholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the shareholders entitled to vote at each
such meeting or any adjournment thereof, arranged in alphabetical order and
voting group, with the address of each, and the number, class and series of
shares registered in the name of each shareholder, shall be prepared by the
Secretary and 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 days prior to the meeting or such shorter time as exists between
the record date and the meeting and continuing through the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or at the office of the Corporation's
transfer agent or registrar. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any shareholder who is present.
Section 7. Inspectors of Election. The Board of Directors in
advance of any meeting of shareholders may appoint one or more Inspectors of
Election to act at the meeting or any adjournment thereof. If Inspectors of
Election are not so appointed, the Chairman of the meeting may, and on the
request of any shareholder entitled to vote shall, appoint one or more
Inspectors of Election. Each Inspector of Election, before entering upon the
discharge of his/her duties, shall take and sign an oath faithfully to execute
the duties of Inspector of Election at such meeting with strict impartiality and
according to the best of his/her ability. If appointed, Inspectors of Election
shall take charge of the polls and, when the vote is completed, shall make a
certificate of the result of the vote taken and of such other facts as may be
required by law.
Section 8. Action by Consent. Unless otherwise provided by the
Articles of Incorporation, any action required to be taken at any annual or
special meeting of the shareholders, or any other action which may be taken at
any annual or special meeting of the shareholders may be taken without a
meeting, without prior notice, and without a vote if a consent in writing,
setting forth the action so taken, shall be signed by holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize such action at a meeting at which all shares entitled to vote
thereon were present and voted. Within 10 days after obtaining such
authorization by written consent, notice shall be given to those shareholders
who have not consented in writing. The notice shall fairly summarize the
material features of the authorized action and, if the action is of a type for
which dissenters' rights are provided for by statute, 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 further provisions of such
statute regarding the rights of dissenting shareholders.
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. The
business and affairs of the Corporation shall be managed by or under the
direction of its Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Articles of Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders. The Board of Directors of the Corporation
shall consist of five persons. The number of directors may be changed by a
resolution passed by a majority of the whole Board or by a vote of the holders
of record of at least a majority of the shares of stock of the Corporation,
issued and outstanding and entitled to vote. The directors shall be elected at
the annual meeting of the shareholders, except as provided in this Section of
this Article, and each director elected shall hold office until his/her
successor is duly elected and qualified or until his/her death, resignation or
removal. Directors need not be shareholders or officers of the Corporation.
A majority of the members of the Board of Directors then
holding office (but not less than one-third of the total number of directors nor
less than two directors) shall constitute a quorum for the transaction of
business. At all meetings of a committee of the Board a majority of the
directors then members of the committee in office shall constitute a quorum for
the transaction of business. The act of a majority of the members present at any
meeting at which there is a quorum shall be the act of the Board of Directors or
the committee, unless the vote of a larger number is specifically required by
statute, by the Articles of Incorporation, or by these Bylaws. If at any meeting
of the Board or a committee, there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time and to
another place without notice other than announcement at the meeting, until a
quorum shall be present.
The Board of Directors shall be divided into three classes
which shall be denominated Class I, Class II and Class III, respectively, and
whose members shall be as nearly equal in number as may be possible, to serve
for the following terms and until their successors shall have been elected and
shall have been qualified and unless sooner displaced or removed: Class I,
comprised of two directors and to serve until the Annual Meeting of the
Corporation's Shareholders in 1999; Class II to be comprised of one director and
to serve until the Annual Meeting of the Corporation's Shareholders in 2000; and
Class III, comprised of two directors to serve until the Annual Meeting of the
Corporation's Shareholders in 2001. Thereafter, at each subsequent Annual
Meeting of Shareholders the successors to the Class of directors whose term
shall then expire shall be elected to hold office for a term expiring at the
third succeeding Annual Meeting.
Notwithstanding the foregoing, whenever the holders of any
series of Preferred Stock shall be entitled, voting separately as a Class, to
elect directors, the terms of all directors elected by such holders shall expire
at the next succeeding Annual Meeting of Shareholders.
Whenever any vacancy shall have occurred in the Board of
Directors by reason of death, resignation, an increase in the number of
directors or otherwise, it shall be filled by the affirmative vote of a majority
of the remaining directors, though less than a quorum of the Board, or by the
shareholders (except as otherwise provided by law or the Articles of
Incorporation), and the person so chosen shall hold office until the next annual
election and until his/her successor is duly elected and has qualified or until
his/her death, resignation or removal.
At a meeting of shareholders, any director or the entire Board
of Directors may be removed, solely with cause and provided the notice of the
meeting states that one of the purposes of the meeting is the removal of the
director. A director may be removed only if the number of votes cast to remove
him/her constitutes at least a majority of the voting power of all of the shares
of capital stock then entitled to vote generally in the election of directors,
voting together as a single class. "Cause" shall mean the failure of a director
to substantially perform such director's duties to the Corporation (other than
any such failure resulting from incapacity due to physical or mental illness) or
the willful engaging by a director in gross misconduct injurious to the
Corporation.
Section 2. Meetings, Notice. Regular or special meetings of
the Board of Directors shall be held at such place either within or without the
State of Florida, as may from time to time be fixed by resolution of the Board,
or as may be specified in the notice of meeting. Regular meetings of the Board
of Directors shall be held at such times as may from time to time be fixed by
resolution of the Board and, unless the Articles of Incorporation provide
otherwise, regular meetings of the Board may be held without notice of the date,
time, place or purpose of the meeting. Special meetings may be held at any time
upon the call of two directors, the Chairman of the Board, if one be elected, or
the President, by oral, telegraphic or written notice, duly served on or sent or
mailed to each director not less than two days before such meeting. The notice
need not specify the business to be transacted or the purpose of the special
meetings. Unless otherwise restricted by the Articles of Incorporation, members
of the Board of Directors, or any committee designated by the Board, may
participate in a meeting of the Board or 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 participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting.
Notice of a meeting of the Board of Directors need not be given to any director
who signs a waiver of notice either before or after the meeting. Attendance of a
director at a meeting constitutes a waiver of notice of the meeting except where
a director states, at the beginning of the meeting or promptly upon arrival at
the meeting, any objection to the transaction of business because the meeting is
not lawfully called or convened.
Section 3. Committees. The Board of Directors may, in its
discretion, by resolution adopted by a majority of the whole Board, designate
from among its members one or more committees which shall consist of two or more
directors. The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of the committee. Such committees shall have and may exercise such
powers as shall be conferred or authorized by the resolution appointing them;
provided, however, such a committee shall not have the power or authority to:
(A) approve or recommend to shareholders actions or proposals required
by statute to be approved by the shareholders,
(B) fill vacancies on the Board of Directors or any committee thereof,
(C) adopt, amend or repeal the Bylaws of the Corporation,
(D) authorize or approve the reacquisition of shares unless
pursuant to a general formula or method specified by the Board of
Directors, or
(E) authorize or approve the issuance or sale or contract for the sale
of shares, or determine the designation and relative rights,
preferences and limitations of a voting group, except that the
Board of Directors may authorize a committee (or a senior
executive officer of the Corporation) to do so within limits
specifically prescribed by the Board of Directors.
A majority of any such committee may determine its action,
keep regular minutes of its meetings and fix the time and place of its meetings,
unless the Board of Directors shall otherwise provide. The Board shall have
power at any time to change the membership of any such committee, to fill
vacancies in it, or to dissolve it.
Section 4. Action by Consent. Unless otherwise provided by the
Articles of Incorporation, 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 prior to or after such action, a written consent or
consents thereto is signed by all members of the Board, or of such committee as
the case may be, and such written consent or consents is filed with the minutes
of proceedings of the board or committee. Such consents shall have the same
effect as a vote of the Board or committee for all purposes.
Section 5. Compensation. The Board of Directors may determine,
from time to time, the amount of compensation which shall be paid to its
members. The Board of Directors shall also have power, in its discretion, to
allow a fixed sum and expenses for attendance at each regular or special meeting
of the Board, or of any committee of the Board; in addition, the Board of
Directors shall also have power, in its discretion, to provide for and pay to
directors 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 from time to time.
Section 6. Resignation. A director may resign by written
notice to the Corporation. The resignation is effective upon its delivery to the
Corporation or a subsequent time as set forth in the notice of resignation.
ARTICLE III
OFFICERS
Section 1. Title and Election. The officers of the
Corporation, who shall be chosen by the Board of Directors at its first meeting
after each annual meeting of shareholders, shall be a President, a Treasurer and
a Secretary. The Board of Directors from time to time may elect a Chairman of
the Board, one or more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and such other officers and agents as it shall deem necessary, and
may define their powers and duties. Any number of offices may be held by the
same person.
Section 2. Terms of Office. The officers shall hold office
until their successors are chosen and qualify.
Section 3. Removal. Any officer may be removed, either with
or without cause, at any time, by the affirmative vote of a majority of the
Board of Directors.
Section 4. Resignations. Any officer may resign at any time by
giving written notice to the Corporation. Such resignation shall take effect
upon its delivery to the Corporation or at the time specified therein, and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 5. Vacancies. If the office of any officer or agent
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office or otherwise, the directors may choose a successor, who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
Section 6. Chairman of the Board. The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and of the shareholders, and he/she shall have and perform such other
duties as from time to time may be assigned to him/her by the Board of
Directors.
Section 7. President. The President shall be the chief
executive officer of the Corporation and, in the absence of the Chairman, shall
preside at all meetings of the Board of Directors, and of the shareholders.
He/She shall exercise the powers and perform the duties usual to the chief
executive officer and, subject to the control of the Board of Directors, shall
have general management and control of the affairs and business of the
Corporation; he/she shall appoint and discharge employees and agents of the
Corporation (other than officers elected by the Board of Directors) and fix
their compensation; and he/she shall see that all orders and resolutions of the
Board of Directors are carried into effect. He/She shall have the power to
execute bonds, mortgages and other contracts, agreements and instruments of the
Corporation, and shall do and perform such other duties as from time to time may
be assigned to him/her by the Board of Directors.
Section 8. Vice Presidents. If chosen, the Vice Presidents, in
the order of their seniority, shall, in the absence or disability of the
President, exercise all of the powers and duties of the President. Such Vice
Presidents shall have the power to execute bonds, notes, mortgages and other
contracts, agreements and instruments of the Corporation, and shall do and
perform such other duties incident to the office of Vice President and as the
Board of Directors, or the President shall direct.
Section 9. Secretary. The Secretary shall attend all sessions
of the Board and all meetings of the shareholders and record all votes and the
minutes of proceedings in a book to be kept for that purpose. He/She shall give,
or cause to be given, notice of all meetings of the shareholders and of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors. The Secretary shall affix the corporate seal to any
instrument requiring it, and when so affixed, it shall be attested by the
signature of the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer who may affix the seal to any such instrument in the event
of the absence or disability of the Secretary. The Secretary shall have and be
the custodian of the stock records and all other books, records and papers of
the Corporation (other than financial) and shall see that all books, reports,
statements, certificates and other documents and records required by law are
properly kept and filed.
Section 10. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. He/She shall disburse the funds of the Corporation as may be ordered
by the Board, taking proper vouchers for such disbursements, and shall render to
the directors whenever they may require it, an account of all his/her
transactions as Treasurer and of the financial condition of the Corporation.
Section 11 . Duties of Officers May be Delegated; Customary
Duties. In case of the absence or disability of any officer of the Corporation,
or for any other reason that the Board may deem sufficient, the Board may
delegate for the time being, the powers or duties, or any of them, of such
officer to any other officer, or to any director. To the extent the powers and
duties of the several officers are not provided from time to time by resolution
or other directive of the Board of Directors or by the President (with respect
to other officers), the officers shall have all powers and shall discharge the
duties customarily and usually held and performed by like officers of the
corporations similar in organization and business purposes to this Corporation.
ARTICLE IV
INDEMNIFICATION
Section 1. Actions by Others. The Corporation (1) shall
indemnify any person who was or is a party to any proceeding (other than an
action by or in the right of the (Corpor-ation), by reason of the fact that
he/she 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 liability incurred by him/her in connection with such
proceeding, including any appeal thereof, if he/she acted in good faith and in a
manner he/she 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/her conduct was unlawful. The termination of
any 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 which he/she
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 no
reasonable cause to believe that his/her conduct was unlawful.
Section 2. Actions by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party to any proceeding
by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he/she 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 by him/her 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 he/she reasonably
believed to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made under this Section 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 the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Section 3. Successful Defense. To the extent that a person who
is or was 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 Section 1 or Section 2 of this Article, or in defense of any claim, issue or
matter therein, he/she shall be indemnified against expenses actually and
reasonably incurred by him/her in connection therewith.
Section 4. Specific Authorization. Any indemnification under
Section 1 or Section 2 of this Article (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 he/she has met the applicable
standard of conduct set forth in said Sections 1 and 2. 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 proceeding; (2) if such a quorum is
not obtainable or, even if obtainable, by majority vote of a committee duly
designated by the Board of Directors (in which directors who are parties may
participate) consisting solely of two or more directors not at the time parties
to the proceeding; or (3) by independent legal counsel selected by the Board of
Directors prescribed in paragraph (1) of this Section or the committee
prescribed in paragraph (2) of this Section or, if a quorum of the directors
cannot be obtained for paragraph 1 and the committee cannot be designated under
paragraph 2, selected by majority vote of the full Board of Directors (in which
directors who are parties may participate); or (4) 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.
Section 5. Advance of Expenses. Expenses incurred by any
person who may have a right of indemnification under this Article in defending a
civil or criminal proceeding may be paid by the Corporation in advance of the
final disposition of such proceedings upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if he/she is ultimately
found not to be entitled to indemnification by the Corporation pursuant to this
Article. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the Board of Directors deems appropriate.
Section 6. Right of Indemnity Not Exclusive. The
indemnification and advancement or expenses provided by this Article shall not
be deemed exclusive, and the Corporation may make any other or further
indemnification or advancement of expenses of any of its directors, officers,
employees, or agents, under any bylaws, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his/her official
capacity and as to action in another capacity while holding such office, and
shall 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, unless otherwise provided when authorized or
ratified.
Section 7. Insurance. 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 him/her and incurred by him/her in any such capacity, or
arising out of his/her status as such, whether or not the Corporation would have
the power to indemnify him/her against such liability under the provisions of
this Article, or Section 607.0850 of the Florida Business Corporation Act.
Section 8. Invalidity of Any Provisions of this Article. The
invalidity or unenforceability of any provision of this Article shall not affect
the validity or enforceability of the remaining provisions of this Article.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each shareholder of
the Corporation shall be evidenced by certificates for shares of stock in such
form as the Board of Directors may from time to time prescribe. The certificates
of stock shall be signed by the President or a Vice President and by the
Secretary, or the Treasurer, or an Assistant Secretary, or an Assistant
Treasurer, sealed with the seal of the Corporation or a facsimile thereof, and
countersigned and registered in such manner, if any, as the Board of Directors
may by resolution prescribe. Where any such certificate is countersigned by a
transfer agent other than the Corporation or its employee, or registered by a
registrar other than the Corporation or its employee, the signature of any such
officer may be a facsimile signature. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall have been used on,
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures' shall
have been used thereon had not ceased to be such officer or officers.
Section 2. Transfer. The shares of stock of the Corporation
shall be transferred only upon the books of the Corporation by the holder
thereof in person or by his/her attorney, upon surrender for cancellation of
certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof of
the authenticity of the signature as the Corporation or its agents may
reasonably require.
Section 3. Record Dates. The Board of Directors may fix in
advance a date, not less than ten nor more than seventy days preceding the date
of any meeting of shareholders, or the date for the payment of any dividend, or
the date for the distribution or allotment of any rights, or for the purpose of
any other action, as a record date for the determination of the shareholders
entitled to notice of, and to vote at, any such meeting or any adjournment
thereof, or entitled to receive payment of any such dividend or to receive any
distribution or allotment of such rights, or otherwise, and in such case only
such shareholders as shall be shareholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting, or to receive
payment of such dividend or to receive such distribution or allotment or rights,
as the case may be, notwithstanding any transfer of any stock on the books of
the Corporation after any such record date is fixed as aforesaid.
Section 4. Lost Certificates. In the event that any
certificates of stock are lost, stolen, destroyed or mutilated, the Board of
Directors may authorize the issuance of a new certificate of the same tenor and
for the same number of shares in lieu thereof. The Board may in its discretion,
before the issuance of such new certificate, require the owner of the lost,
stolen, destroyed or mutilated certificate, or the legal representative of the
owner, to make an affidavit or affirmation setting forth such facts as to the
loss, destruction or mutilation as it deems necessary, and to give the
Corporation a bond in such reasonable sum as it directs to indemnify the
Corporation.
ARTICLE VI
CHECKS, NOTES, ETC.
Section 1. Checks, Notes, Etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money, may
be signed by the President or any Vice President and may also be signed by such
other officer or officers, agent or agents, as shall be thereunto authorized
from time to time by the Board of Directors,
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation
shall be located at the office of Corporation Services Company, in the City of
Tallahassee, in the State of Florida and said corporation shall be the
registered agent of this Corporation in charge thereof. The Corporation may have
other offices either within or without the State of Florida at such places as
shall be determined from time to time by the Board of Directors or the business
of the Corporation may require.
Section 2. Fiscal Year. The fiscal and operating year of the
Corporation shall commence on January 1 and end on December 31 in each year.
Section 3. Corporate Seal. The seal of the Corporation shall
be circular in form and contain the name of the Corporation, and state of its
incorporation. Such seal may be altered from time to time at the discretion of
the Board of Directors. Except as otherwise provided by law, the failure to
affix the seal of the Corporation to the document shall not affect the validity
thereof.
Section 4. Books. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of Florida, correct books and records of account of all its business and
transactions, minutes of the proceedings of its shareholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
shareholders, the number, class and series of shares held by them, respectively,
and the dates when they respectively became the owners of record thereof, and in
which the transfer of stock shall be registered, and such other books and
records as the Board of Directors may from time to time determine.
Section 5 . Governing Documents. These Bylaws shall govern the
internal affairs of the Corporation, but only to the extent they are consistent
with law and the Articles of Incorporation. Nothing contained in the Bylaws
shall, however, prevent the imposition by contract of greater voting, notice or
other requirements than those set forth in these Bylaws.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments. The Bylaws of the Corporation may be
altered, amended or repealed, and new Bylaws adopted, by the affirmative vote of
at least a majority of the members of the Board of Directors then in office or
by the affirmative vote of the holders of at least a majority of the voting
power of all shares of stock of the Corporation then entitled to vote generally
in the election of directors, voting as a single class; provided, however, that
any proposal to amend, alter, change or repeal the provisions of Section 1 of
Article II of the Bylaws of the Corporation shall require the affirmative vote
of the holders of at least 80% of the voting power of all the shares of stock of
the Corporation entitled to vote generally in the election of directors, voting
together as a single class.
