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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 22, 1997
DATAFLEX CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Florida
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(State or Other Jurisdiction of Incorporation)
0-15551 22-2163376
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(Commission File Number) (IRS Employer Identification No.)
2145 Calumet Street, Clearwater, Florida 34624
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (813) 562-2200
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
Florida Reincorporation
On October 22, 1997, Dataflex Corporation, a New Jersey corporation
("Dataflex New Jersey"), completed the change in its state of incorporation from
New Jersey to Florida (the "Reincorporation") through a merger (the "Merger") of
Dataflex New Jersey with and into its wholly-owned-subsidiary, Dataflex
Reincorporation, Inc., a Florida corporation (the "Company"). Appropriate
consents and approvals were obtained for the Reincorporation, including the
approval of the shareholders of Dataflex New Jersey on September 18, 1997, at
the annual meeting of the shareholders (the "Annual Meeting"). As the
surviving corporation in the Merger, the Company succeeded to all the business,
properties, assets and liabilities of Dataflex New Jersey. In connection with
the consummation of the Merger, the Company changed its name to "Dataflex
Corporation." As a result of the Merger, each outstanding share of Dataflex
New Jersey's common stock, no par value ("Dataflex New Jersey Common Stock"),
was automatically converted into one share of the Company's common stock, no
par value ("Company Common Stock"). Each stock certificate representing issued
and outstanding shares of Dataflex New Jersey Common Stock will continue to
represent the same number of shares of Company Common Stock. The Company
Common Stock will continue to be traded on the Nasdaq Stock Market's National
Market without interruption under the symbol "DFLX." A description of the
capital stock of the Company is set forth in Dataflex New Jersey's Proxy
Statement dated August 25, 1997, for the Annual Meeting, under the caption
"Proposal No. 1 - Reincorporation of the Company from New Jersey to Florida,"
which description is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits:
Exhibit 2.1 -- Agreement and Plan of Merger of Dataflex Reincorporation,
Inc., a Florida corporation, and Dataflex Corporation, a
New Jersey corporation.
Exhibit 4.1 -- Amended and Restated Articles of Incorporation of Dataflex
Reincorporation, a Florida corporation.
Exhibit 4.2 -- Bylaws of Dataflex Reincorporation, a Florida corporation.
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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 hereunto duly authorized.
DATAFLEX CORPORATION
(Registrant)
By:/s/ Anthony G. Lembo
----------------------------------------
Anthony G. Lembo, President
Date: October 22, 1997
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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated September 18, 1997 (the
"Agreement"), is entered into between DATAFLEX REINCORPORATION, INC., a Florida
corporation ("Dataflex Florida"), and DATAFLEX CORPORATION, a New Jersey
corporation ("Dataflex New Jersey").
BACKGROUND
A. Dataflex New Jersey has an aggregate authorized capital of 20,000,000
shares of Common Stock, no par value per share (the "Dataflex New Jersey Common
Stock"), of which, as of July 21, 1997, 5,961,169 were duly issued and
outstanding and 10,000,000 shares of Preferred Stock, no par value per share, of
which, as of July 21, 1997, no shares were outstanding.
B. Dataflex Florida has an aggregate authorized capital stock of
20,000,000 shares of Common Stock, no par value per share (the "Dataflex Florida
Common Stock"), of which 100 shares were duly issued and are now outstanding and
held by Dataflex New Jersey, and 10,000,000 shares of Preferred Stock, no par
value per share, of which no shares are currently outstanding.
C. The respective Boards of Directors of Dataflex Florida and Dataflex
New Jersey believe that the best interests of Dataflex Florida and Dataflex New
Jersey and their respective shareholders will be served by the merger of
Dataflex New Jersey with and into Dataflex Florida under and pursuant to the
provisions of this Agreement and the New Jersey Business Corporation Act (the
"New Jersey Act") and the Florida Business Corporation Act (the "Florida Act").
TERMS
In consideration of the mutual agreements contained in this Agreement, the
parties hereto agree as set forth below.
1. Merger. Dataflex New Jersey shall be merged with and into
Dataflex Florida (the "Merger").
2. Effective Date. The Merger shall become effective immediately
upon the later of the filing of this Agreement or a certificate of merger with
the Secretary of State of New Jersey in accordance with the New Jersey Act and
the filing of articles of merger with the Secretary of State of Florida in
accordance with the Florida Act. The time of such effectiveness is hereinafter
called the "Effective Date."
3. Surviving Corporation. Dataflex Florida shall be the surviving
corporation of the Merger and shall continue to be governed by the laws of the
State of Florida. On the Effective Date, the separate corporate existence of
Dataflex New Jersey shall cease.
4. Name of Surviving Corporation. On the Effective Date, the
Articles of Incorporation of Dataflex Florida shall be amended to change the
name of Dataflex Florida to "Dataflex Corporation."
5. Certificate of Incorporation. Except as provided in Section 4,
the Articles of Incorporation of Dataflex Florida as it exists on the Effective
Date shall be the Articles of Incorporation of Dataflex Florida immediately
following the Effective Date, unless and until the same shall thereafter be
amended or repealed in accordance with the laws of the State of Florida.
6. Bylaws. The By-Laws of Dataflex Florida as they exist on the
Effective Date shall be the By-Laws of Dataflex Florida immediately following
the Effective Date, unless and until the same shall be amended or repealed in
accordance with the provisions thereof and the laws of the State of Florida.
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7. Board of Directors and Officers. The members of the Board of
Directors of Dataflex New Jersey immediately prior to the Effective Date shall
be nominated for election to the Board of Directors of Dataflex Florida. The
officers of Dataflex New Jersey immediately prior to he Effective Date shall be
the officers of Dataflex Florida immediately following the Effective Date, and
such persons shall serve in such offices for the terms provided by law or in the
By-Laws of Dataflex Florida, or until their respective successors are elected
and qualified.
8. Retirement of Outstanding Dataflex Florida Stock. On the
Effective Date, each of the 100 shares of the Dataflex Florida Common Stock
presently issued and outstanding shall be retired, and no shares of Dataflex
Florida Common Stock or other securities of Dataflex Florida shall be issued in
respect thereof.
9. Conversion of Outstanding Dataflex New Jersey Stock. On the
Effective Date, each issued and outstanding share of Dataflex New Jersey Common
Stock and all rights in respect thereof shall be converted into one fully-paid
and nonassessable share of Dataflex Florida Common Stock, and each certificate
representing shares of Dataflex New Jersey Common Stock shall for all purposes
be deemed to evidence the ownership of the same number of shares of Dataflex
Florida Common Stock as are set forth in such certificate. After the Effective
Date, each holder of an outstanding certificate representing shares of Dataflex
New Jersey Common Stock may (but will not be required to), at such shareholder's
option, surrender the same to Dataflex Florida's registrar and transfer agent
for cancellation, and each such holder shall be entitled to receive in exchange
therefore a certificate(s) evidencing the ownership of the same number of shares
of Dataflex Florida Common Stock as are represented by the Dataflex New Jersey
certificate(s) surrendered to Dataflex Florida's registrar and transfer agent.
10. Stock Options, Warrants, Etc. On the Effective Date, each stock
option, stock warrant, and other right to subscribe for or purchase shares of
Dataflex New Jersey Common Stock shall be converted into a stock option, stock
warrant, or other right to subscribe for or purchase the same number of shares
of Dataflex Florida Common Stock, and each certificate, agreement, note or other
document representing such stock option, stock warrant, or other right to
subscribe for or purchase shares of Dataflex New Jersey Common Stock shall for
all purposes be deemed to evidence the ownership of a stock option, stock
warrant, or other right to subscribe for or purchase shares of Dataflex Florida
Common Stock.
11. Rights and Liabilities of Dataflex Florida. At and after the
Effective Date, and all in the manner of and as more fully set forth in the
Florida Act and the New Jersey Act, the title to all real estate and other
property, or any interest therein, owned by each of Dataflex New Jersey and
Dataflex Florida shall be vested in Dataflex Florida without reversion or
impairment; Dataflex Florida shall succeed to and possess, without further act
or deed, all estates, rights, privileges, powers and franchises, both public and
private, and all of the property, real, personal and mixed, of each of Dataflex
New Jersey and Dataflex Florida without reversion or impairment; Dataflex
Florida shall thereafter be responsible and liable for all the liabilities and
obligations of each of Dataflex New Jersey and Dataflex Florida; any claim
existing or action or proceeding pending by or against Dataflex New Jersey or
Dataflex Florida may be continued as if the Merger did not occur or Dataflex
Florida may be substituted for Dataflex New Jersey in the proceeding; neither
the rights of creditors nor any liens upon the property of Dataflex New Jersey
or Dataflex Florida shall be impaired by the Merger; and Dataflex Florida shall
indemnify and hold harmless the officers and directors of each of the parties to
this Agreement against all such debts, liabilities and duties and against all
claims and demands arising out of the Merger.
12. Termination. This Agreement may be terminated and abandoned by
action of the respective Boards of Directors of Dataflex New Jersey and Dataflex
Florida at any time prior to the Effective Date, whether before or after
approval by the shareholders of either or both of the parties to this Agreement.
13. Amendment. The Boards of Directors of the parties to this
Agreement may amend this Agreement at any time prior to the Effective Date;
provided that an amendment made subsequent to the approval of this Agreement by
the shareholders of either of the parties to this Agreement shall not: (a)
change the amount or kind of shares, securities, cash, property or rights to be
received in exchange for or on conversion of all or any of the shares of the
parties hereto, (b) change any term of the Articles of Incorporation of Dataflex
Florida, or
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(c) change any other terms or conditions of this Agreement if such change would
adversely affect the holders of any capital stock of either party to this
Agreement.
14. Registered Office. The registered office of Dataflex Florida in
the State of Florida is located at 2145 Calumet Street, Clearwater, Florida
34625, and Anthony G. Lembo is the registered agent of Dataflex Florida at such
address.
15. Inspection of Agreement. Executed copies of this Agreement will
be on file at the principal place of business of Dataflex Florida at 2145
Calumet Street, Clearwater, Florida 34625. A copy of this Agreement shall be
furnished by Dataflex Florida, on request and without cost, to any shareholder
of either Dataflex New Jersey or Dataflex Florida.
16. Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Florida.
17. Service of Process. On and after the Effective Date, Dataflex
Florida agrees that it may be served with process in New Jersey in any
proceeding for enforcement of any obligation of Dataflex New Jersey or Dataflex
Florida arising from the Merger.
18. Designation of New Jersey Secretary of State as Agent for Service
of Process. On and after the Effective Date, Dataflex Florida irrevocably
appoints the Secretary of State of New Jersey as its agent to accept service of
process in any suit or other proceeding to enforce the rights of any
shareholders of Dataflex New Jersey or Dataflex Florida arising from the Merger.
The New Jersey Secretary of State is requested to mail a copy of any such
process to Dataflex Florida at 2145 Calumet Street, Clearwater, Florida 34625,
Attention: Anthony G. Lembo.
IN WITNESS WHEREOF, each of the parties to this Agreement, pursuant to
authority duly granted by their respective Board of Directors, has caused this
Agreement to be executed as of the date first written above.
DATAFLEX REINCORPORATION, INC.,
a Florida corporation
By: /s/ Anthony G. Lembo
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Anthony G. Lembo, President
DATAFLEX CORPORATION,
a New Jersey corporation
By: /s/ Anthony G. Lembo
-------------------------------
Anthony G. Lembo, President
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EXHIBIT 4.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
DATAFLEX REINCORPORATION, INC.
In accordance with Section 607.1007, Florida Statutes, the Board of
Directors of Dataflex Reincorporation, Inc. (the "Corporation"), hereby amends
and restates in its entirety the Articles of Incorporation.
ARTICLE I. NAME
The name of the Corporation is:
DATAFLEX REINCORPORATION, INC.
ARTICLE II. ADDRESS
The mailing address of the Corporation is:
2145 Calumet Street
Clearwater, Florida 34625
ARTICLE III. COMMENCEMENT OF EXISTENCE
The existence of the Corporation will commence on the date of filing of
these Articles of Incorporation.
ARTICLE IV. PURPOSE
The Corporation is organized to engage in any activity or business
permitted under the laws of the United States and Florida.
ARTICLE V. CAPITAL STOCK
The capital stock of the Corporation shall be divided into two classes:
20,000,000 shares of Common Stock having no par value per share (the "Common
Stock") and 10,000,000 shares of Preferred Stock having no par value per share
(the "Preferred Stock").
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is authorized to fix the number of shares in each series,
the designation thereof, and the relative rights, preferences, and limitations
of each series, and specifically the Board of Directors is authorized to fix
with respect to each series (a) the dividend rate; (b) redeemable features, if
any; (c) rights upon liquidation; (d) whether or not the shares of such series
shall be subject to a purchase, retirement, or sinking fund provision; (e)
whether or not the shares of such series shall be convertible into or
exchangeable for shares of any other class and, if so, the rate of conversion or
exchange; (f) restrictions, if any, upon the payment of dividends on Common
Stock, (g) restrictions, if any, upon the creation of indebtedness; (h) voting
powers, if any, of the shares of each series; and (i) such other rights,
preferences and limitations as shall not be inconsistent with the laws of the
State of Florida.
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ARTICLE VI. INITIAL REGISTERED OFFICE AND AGENT
The street address of the initial registered office of the Corporation is
2145 Calumet Street, Clearwater, Florida 34625, and the name of the
corporation's initial registered agent at that address is Anthony G. Lembo.
ARTICLE VII. BOARD OF DIRECTORS
The Corporation shall have five directors initially. The number of
directors may be either increased or diminished from time to time, as provided
in the bylaws, but shall never be more than twelve. The directors shall be
divided into three classes, Class I, Class II and Class III, as nearly equal in
number as possible. The term of office for the Class I directors shall expire at
the first annual meeting of the shareholders in 1998; the term of office for the
Class II directors shall expire at the annual meeting of the shareholders in
1999; and the term of office for the Class III directors shall expire at the
annual meeting of the shareholders in 2000. At each annual meeting of the
shareholders commencing in 2000, the successors to the directors whose term is
expiring shall be elected to a term expiring at the third succeeding annual
meeting of the shareholders. If the number of directors is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the number
of directors in each class as nearly equal as possible, and any additional
directors of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold office until
the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification, or removal from office.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of shareholders, the election, term of office, filling of
vacancies, and other features of such directorships shall be governed by the
terms of these Articles of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article V hereof, and such
directors so elected shall not be divided into classes pursuant to this Article
VII, unless expressly provided by such terms.
Subject to the rights, if any, of the holders of shares of Preferred Stock
then outstanding, any or all of the directors of the Corporation may be removed
from office for cause by the shareholders of the Corporation at any annual or
special meeting of shareholders by the affirmative vote of at least 60% of the
outstanding shares of Common Stock of the Corporation or by the affirmative vote
of a majority of the directors of the Corporation then in office. Notice of any
annual or special meeting of shareholders shall state that the removal of a
director or directors for cause is among the purposes of the meeting. Directors
may not be removed by the shareholders without cause.
Newly created directorships resulting from any increase in the number of
directors or any vacancy on the Board of Directors resulting from death,
resignation, disqualification, removal, or other cause shall be filled solely by
the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum, or by a sole remaining director, or, if not
filled by the directors, by the shareholders. Any director elected in accordance
with the preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or the
vacancy occurred and until such director's successor shall have been elected and
qualified. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
Subject to the rights, if any, of the holders of shares of Preferred Stock
then outstanding, only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors at meetings of
shareholders.
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Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of shareholders by or at the direction of:
(a) the Board of Directors; (b) by any nominating committee or person appointed
by the Board; (c) or by any shareholder of the Corporation entitled to vote for
the election of directors at the meeting who complies with the notice procedures
set forth in this Article VII.
Nominations by shareholders shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice must be delivered to, or mailed and received at, the principal executive
offices of the Corporation not less than 60 days prior to the date of the
meeting at which the director(s) are to be elected, regardless of any
postponements, deferrals, or adjournments of that meeting to a later date.
However, if less than 70 days' notice or prior public disclosure of the date of
the scheduled meeting is given or made, notice by the shareholder, to be timely,
must be so delivered or received not later than the close of business on the
tenth day following the earlier of the day on which notice was given or such
public disclosure was made.
A shareholder's notice to the Secretary shall set forth (a) as to each
person that the shareholder proposes to nominate for election or reelection as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of capital stock of the Corporation which are
beneficially owned by the person and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Schedule 14A under the Securities Exchange Act
of 1934, as amended; and (b) as to the shareholder giving the notice (i) the
name and address, as they appear on the Corporation's books, of the shareholder
and (ii) the class and number of shares of the Corporation's stock that are
beneficially owned by the shareholder on the date of such shareholder notice.
The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a director of the Corporation.
The presiding officer of the meeting shall determine and declare at the
meeting whether the nomination was made in accordance with the terms of this
Article VII. If the presiding officer determines that a nomination was not made
in accordance with the terms of this Article VII, he shall so declare at the
meeting and any such defective nomination shall be disregarded.
Any or all of the directors of the Corporation may be removed from office
for cause by the shareholders of the Corporation at any annual or special
meeting of shareholders by the affirmative vote of at least 60% of the
outstanding shares of Common Stock of the Corporation. Notice of any such annual
or special meeting of shareholders shall state that the removal of a director or
directors for cause is among the purposes of the meeting. Directors may not be
removed by the shareholders without cause.
The names and street addresses of the initial directors are:
<TABLE>
<CAPTION>
Name Address Class
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<S> <C> <C>
Anthony G. Lembo 2145 Calumet Street
Clearwater, Florida 34625 I
Richard C. Rose 2145 Calumet Street
Clearwater, Florida 34625 II
Philip Doganiero 2145 Calumet Street
Clearwater, Florida 34625 III
W. Keith Schilit 2145 Calumet Street
Clearwater, Florida 34625 II
Barry M. Alpert 2145 Calumet Street
Clearwater, Florida 34625 III
</TABLE>
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ARTICLE VIII. SHAREHOLDER MEETINGS
At an annual meeting of shareholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
brought before the annual meeting (a) by, or at the direction of, the Board of
Directors, or (b) by any shareholder of the Corporation who complies with the
notice procedures set forth in this Article VIII and the requirements of Rule
14a-8 under the Securities Exchange Act of 1934.
For a proposal to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a shareholder's notice must be
delivered to, or mailed and received at, the principal executive offices of the
Corporation not less than 60 days prior to the scheduled annual meeting,
regardless of any postponements, deferrals, or adjournments of that meeting to a
later date; however, if less than 70 days' notice or prior public disclosure of
the date of the scheduled annual meeting is given or made, notice by the
shareholder, to be timely, must be so delivered or received not later than the
close of business on the tenth day following the earlier of the day on which
such notice of the date of the scheduled annual meeting was given or the day on
which such public disclosure was made.
A shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's books, of the shareholder proposing
such business and any other shareholders known by such shareholder to be
supporting such proposal, (c) the class and number of shares of the
Corporation's stock that are beneficially owned by the shareholder on the date
of such shareholder notice and by any other shareholders known by such
shareholder to be supporting such proposal on the date of such shareholder
notice, and (d) any financial interest of the shareholder in such proposal.
The presiding officer of the annual meeting shall determine and declare at
the annual meeting whether the shareholder proposal was made in accordance with
the terms of this Article VIII. If the presiding officer determines that a
shareholder proposal was not made in accordance with the terms of this Article
VIII, he shall so declare at the annual meeting and any such proposal shall not
be acted upon at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors, and
committees of the Board of Directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting unless stated, filed,
and received as herein provided.
Special meetings of the shareholders of the Corporation for any purpose or
purposes may be called at any time by (a) the Board of Directors; (b) the
Chairman of the Board of Directors (if one is so appointed); or (c) the
President of the Corporation. Special meetings of the shareholders of the
Corporation may not be called by any other person or persons.
At any special meeting of shareholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been set
forth in the notice of such special meeting.
ARTICLE IX. BYLAWS
The power to adopt, alter, amend, or repeal bylaws shall be vested in the
Board of Directors and the shareholders, except that the Board of Directors may
not amend or repeal any bylaw adopted by the shareholders if the shareholders
specifically provide that the bylaw is not subject to amendment or repeal by the
directors.
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ARTICLE X. AMENDMENTS
The Corporation reserves the right to amend, alter, change, or repeal any
provision in these Articles of Incorporation in the manner now or hereafter
prescribed by statute, and all rights conferred upon the shareholders herein are
subject to this reservation. Notwithstanding anything contained in these
Articles of Incorporation to the contrary, the affirmative vote of at least 60%
of the outstanding shares of Common Stock of the Corporation shall be required
to amend or repeal Article VII of these Articles of Incorporation.
The foregoing Amended and Restated Articles of Incorporation were adopted
and approved by the Board of Directors and by the sole shareholder, in
accordance with ss. 607.1003, Florida Statutes, on August 22, 1997. The number
of votes for the amendments contained herein were sufficient for shareholder
approval of such amendments.
The undersigned officer of the corporation has executed these Amended
& Restated Articles of Incorporation this 22nd day of August, 1997.
/s/ Anthony G. Lembo
----------------------------
Anthony G. Lembo, President
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EXHIBIT 4.2
BYLAWS OF
DATA CORPORATION
F/K/A
DATAFLEX REINCORPORATION, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders of
the Corporation for the election of directors and the transaction of other
business shall be held during the month of August, or on the date and at the
time and place that the board of directors determines, in compliance with
Article VIII of the Amended and Restated Articles of Incorporation (the
"Articles of Incorporation"). If any annual meeting is not held, by oversight or
otherwise, a special meeting shall be held as soon as practical, and any
business transacted or election held at that meeting shall be as valid as if
transacted or held at the annual meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders for
any purpose shall be held when called in accordance with Article VIII of the
Articles of Incorporation.
SECTION 3. PLACE. Meetings of shareholders may be held either within
or outside the State of Florida.
SECTION 4. NOTICE. A written notice of each meeting of shareholders,
stating the place, day, and time 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 the meeting, not
less than ten nor more than sixty days before the date set for the meeting,
either personally or by first-class mail, by or at the direction of the
president, the secretary, or the officer or other persons calling the meeting.
SECTION 5. WAIVERS OF NOTICE. Whenever any notice is required to be
given to any shareholder of the Corporation under these bylaws, the articles of
incorporation, or the Florida Business Corporation Act, a written waiver of
notice, signed anytime by the person entitled to notice shall be equivalent to
giving notice. Attendance by a shareholder entitled to vote at a meeting, in
person or by proxy, shall constitute a waiver of (a) notice of the meeting,
except when the shareholder attends a meeting solely for the purpose, expressed
at the beginning of the meeting, of objecting to the transaction of any business
because the meeting is not lawfully called or convened, and (b) an objection to
consideration of a particular matter at the meeting that is not within the
purpose of the meeting unless the shareholders object to considering the matter
when it is presented.
SECTION 6. RECORD DATE. For the purpose of determining the
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to sixty days or fix a record date,
which shall be not less than ten nor more than sixty days
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before the date on which the action requiring the determination is to be taken.
However, a record date shall not precede the date upon which the resolution
fixing the record date is adopted. If the transfer books are not closed and no
record date is set by the board of directors, the record date shall be
determined as follows: For determining shareholders entitled to demand a special
meeting, the record date is the date the first such demand is delivered to the
Corporation; For determining shareholders entitled to a share dividend, the
record date is the date the board of directors authorizes the dividend; If no
prior action is required by the board of directors pursuant to the Florida
Business Corporation Act, the record date for determining shareholders entitled
to take action without a meeting is the date the first signed written consent is
delivered to the Corporation; If prior action is required by the board of
directors pursuant to the Florida Business Corporation Act, the record date for
determining shareholders entitled to take action without a meeting is at the
close of business on the day that the board of directors adopts a resolution
taking such prior action; and for determining shareholders entitled to notice of
and to vote at an annual or special shareholders meeting the record date is as
of the close of business on the day before the first notice is delivered to the
shareholders. When a determination of the shareholders entitled to vote at any
meeting has been made, that determination shall apply to any adjournment of the
meeting, unless the board of directors fixes a new record date. The board of
directors shall fix a new record date if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
SECTION 7. SHAREHOLDER'S LIST FOR MEETING. A complete alphabetical
list of the names of the shareholders entitled to receive notice of and to vote
at the meeting shall be prepared by the secretary or other authorized agent
having charge of the stock transfer book. The list shall be arranged by voting
group and include each shareholder's address, and the number, series, and class
of shares held. The list must be made available at least ten days before and
throughout each meeting of shareholders, or such shorter time as exists between
the record date and the meeting. The list must be made available at the
Corporation's principal office, registered agent's office, transfer agent's
office and at the meeting. Any shareholder, his agent or attorney, upon written
demand and at his own expense may inspect the list during regular business hours
for any purpose germane to the meeting. The list shall be available at the
meeting and any shareholder, his agent or attorney is entitled to inspect the
list at any time during the meeting or its adjournment.
If the requirements of this section have not been substantially
complied with, the meeting, on the demand of any shareholder in person or by
proxy, shall be adjourned until the requirements of this section are met. If no
demand for adjournment is made, failure to comply with the requirements of this
section does not affect the validity of any action taken at the meeting.
SECTION 8. PROXIES. Any shareholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the shareholder or his duly authorized attorney-in-fact,
but need not be dated, sealed, witnessed or acknowledged and shall be filed with
the Secretary of the meeting before or at the time of the meeting. The presence
at any meeting of any shareholder who has given a proxy
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shall not revote such proxy unless the shareholder shall file written notice of
such revocation with the Secretary of the meeting prior to the vote of such
proxy.
SECTION 9. SHAREHOLDER QUORUM AND VOTING. A majority of the shares
entitled to vote, represented in person or by proxy, constitutes a quorum at a
meeting of shareholders. If a quorum is present, the affirmative vote of a
majority of the shares entitled to vote on the matter is the act of the
shareholders unless otherwise provided in the Articles of Incorporation or by
law. Each shareholder shall be entitled to one vote for each share of stock
standing in his name on the books of the corporation and may vote either in
person or by proxy executed in writing by the shareholder or his duly authorized
attorney-in-fact. After a quorum has been established at a shareholders'
meeting, a withdrawal of shareholders that reduces the number of shareholders
entitled to vote at the meeting below the number required for a quorum does not
affect the validity of an adjournment of the meeting or an action taken at the
meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or otherwise
reacquired by the corporation, and shares of stock of this Corporation owned by
another corporation the majority of the voting stock of which is owned or
controlled by this Corporation, directly or indirectly, at any meeting shall not
be counted in determining the total number of outstanding shares at any time.
The president, any vice president, the secretary, and the treasurer of a
corporate shareholder are presumed to possess, in that order, authority to vote
shares standing in the name of a corporate shareholder, absent a bylaw or other
instrument of the corporate shareholder designating some other officer, agent,
or proxy to vote the shares. Shares held by an administrator, executor,
guardian, or conservator may be voted by him without a transfer of the shares
into his name. A trustee may vote shares standing in his name, but no trustee
may vote shares that are not transferred into his name. If he is authorized to
do so by an appropriate order of the court by which he was appointed, a receiver
may vote shares standing in his name or held by or under his control, without
transferring the shares into his name. A shareholder whose shares are pledged
may vote the shares until the shares have been transferred into the name of the
pledgee, and thereafter the pledgee or his nominee shall be entitled to vote the
shares unless the instrument creating the pledge provides otherwise.
ARTICLE II. DIRECTORS
SECTION 1. FUNCTION. The business of this Corporation shall be managed
and its corporate powers exercised by the board of directors.
SECTION 2. NUMBER. The Corporation shall have five directors initially
upon adoption of these bylaws. The number of directors may be increased or
diminished from time to time by action of the board of directors or shareholders
in accordance with these bylaws and the Articles of Incorporation, but no
decrease shall have the effect of shortening the term of any incumbent director,
unless the shareholders remove the director.
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SECTION 3. QUALIFICATION. Each member of the board of directors must
be a natural person who is eighteen years of age or older. A director need not
be a resident of Florida or a shareholder of the Corporation.
SECTION 4. ELECTION AND TERM. The persons named in the Articles of
Incorporation as members of the initial board of directors shall hold office for
the term provided therein or until their earlier resignation, removal from
office, or death. In accordance with the Articles of Incorporation the
shareholders shall elect successors directors at each annual meeting to replace
the class of directors whose terms are expiring. The new class of directors
shall hold office for the term expiring at the third succeeding annual meeting.
Each director shall hold office for the term for which he is elected and until
his successor is elected and qualifies or until his earlier resignation, removal
from office, or death.
SECTION 5. COMPENSATION. The board of directors has authority to fix
the compensation of the directors, as directors and as officers.
SECTION 6. DUTIES OF DIRECTORs. A director shall perform his duties as
a director, including his duties as a member of any committee of the board upon
which he serves, in good faith, in a manner he reasonably believes to be in the
best interests of the Corporation.
SECTION 7. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the board of directors or a committee of the board of
directors when corporate action is taken is presumed to have assented to the
action unless he votes against it or expressly abstains from voting on the
action taken, or, he objects at the beginning of the meeting to the holding of
the meeting or transacting specific business at the meeting.
SECTION 8. VACANCIES. Unless filled by the shareholders, any vacancy
occurring in the board of directors, including any vacancy created because of an
increase in the number of directors, may be filled by the affirmative vote of a
majority of the remaining directors, even if the number of remaining directors
does not constitute a quorum of the board of directors. A director elected to
fill a vacancy shall hold office only until the next election of directors by
the shareholders.
SECTION 9. REMOVAL OR RESIGNATION OF DIRECTORS. At a meeting of
shareholders called for that purpose, the shareholders, by a vote of the holders
of a majority of the shares entitled to vote at an election of directors, may
remove any director, or the entire board of directors, with cause, and fill any
vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice to the
board of directors or its chairman or the corporation. A resignation is
effective when the notice is delivered unless the notice specifies 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 provided that the successor does not take office until the effective
date.
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SECTION 10. QUORUM AND VOTING. A majority of the board of directors
constitutes a quorum for the transaction of business. The act of the majority of
the directors at a meeting at which a quorum is present is the act of the board
of directors.
SECTION 11. PLACE OF MEETINGS. Regular and special meetings by the
board of directors may be held within or outside the State of Florida.
SECTION 12. REGULAR MEETINGS. A regular meeting of the board of
directors shall be held without notice, other than this bylaw, immediately after
and at the same place as the annual meeting of shareholders. The board of
directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
SECTION 13. SPECIAL MEETINGS. Special meetings of the board of
directors may be called by or at the request of the president or any directors.
SECTION 14. NOTICE OF MEETINGS. Written notice of the time and place
of special meetings of the board of directors shall be given to each director by
either personal delivery or by first class United States mail, telegram, or
cablegram at least two days before the 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 and all objections to the time and
place of the meeting, or the manner in which it has been called or convened,
except when the 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. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
board of directors need be specified in the notice or waiver of notice of the
meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the board of directors to another time and place.
Notice of 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 the adjournment, to the other
directors.
ARTICLE III. COMMITTEES
SECTION 1. APPOINTMENT. The board of directors, by resolution adopted by a
majority of the full board, may designate two or more of the directors to
constitute a committee and prescribe the duties, constitution and procedures
thereof. The designation of any committee pursuant to this Article III and the
delegation of authority thereto shall not operate to relieve the board of
directors, or any director, of any responsibility imposed by law or regulation.
SECTION 2. AUTHORITY. If elected, the executive committee shall have and
may exercise all of the authority of the board of directors, when the board of
directors is not in session,
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except to the extent, if any, that such authority shall be limited by the
resolution appointing the executive committee. In addition, no committee shall
have the authority to (a) approve or recommend to the members actions or
proposals which by law must be approved by the members or the board of
directors; (b) designate candidates for the office if director; (c) fill
vacancies on the board of directors or any committee thereof; or (d) amend the
bylaws.
SECTION 3. TENURE. Subject to the provision of Section 8 of this Article
III, each member of the executive committee, or any other committee, shall hold
office until the next regular annual meeting of the board of directors following
his designation and until his successor is designated as a member of the
committee.
SECTION 4. MEETINGS. Regular meetings of any committee may be held without
notice at such times and places as the committee may fix from time to time by
resolution. Special meetings of committees may be called by any member thereof
upon not less than two day's notice stating the place, date and hour of the
meeting, which notice maybe be written or oral. Any member of a committee may
waive notice of any meeting and no notice of any meeting need by given to any
member thereof who attends in person. The notice of a meeting of a committee
need not state the business proposed to be transacted at the meeting.
SECTION 5. QUORUM. A majority of the members of any committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
action of a committee must be authorized by the affirmative vote of a majority
of the members present at a meeting at which a quorum is present.
SECTION 6. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken by any committee at a 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
members of that committee.
SECTION 7. VACANCIES. Any vacancy on a committee may be filled by a
resolution adopted by a majority of the full board of directors.
SECTION 8. RESIGNATIONS AND REMOVAL. Any member of any committee may be
removed at any time with or without cause by resolution adopted by a majority of
the full board of directors. Any member of the any committee may resign from the
committee at any time by giving written notice to the president or secretary of
the Corporation. Unless otherwise specified therein, such resignation shall take
effect upon receipt. The acceptance of such resignation shall not be necessary
to make it effective.
ARTICLE IV. OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall consist of
a president, a secretary, and a treasurer, and may include one or more
presidents of divisions, vice presidents, one or more assistant secretaries, and
one or more assistant treasurers. The officers
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shall be elected initially by the board of directors at the organizational
meeting of board of directors and thereafter at the first meeting of the board
following the annual meeting of the shareholders in each year. The board from
time to time may elect or appoint other officers, assistant officers, and agents
such as a Chief Executive Officer, Chief Operating Officer, Executive Vice
President, who shall have the authority and perform the duties prescribed by the
board. An elected or duly appointed officer may, in turn, appoint one or more
officers or assistant officers, unless the board of directors disapproves or
rejects the appointment. All officers shall hold office until their successors
have been appointed and have qualified or until their earlier resignation,
removal from office, or death. One person may simultaneously hold any two or
more offices. The failure to elect a president, secretary, or treasurer shall
not affect the existence of the Corporation.
SECTION 2. CHAIRMAN. The Chairman of the Board of Directors shall,
subject to the overall authority of the Board of Directors, have the general
powers and duties as are usually vested in the office of Chairman of the Board
of a corporation. He shall preside at all meetings of the shareholders if
present thereat. He may sign certificates for shares of the Corporation, any
deeds, mortgages, bonds, contracts or other instruments which the Board of
Directors has authorized to be executed, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation or shall be required by law to be
otherwise signed or executed. He may delegate such of his duties as he may see
fit to the President of the Corporation or to any other officer of the
Corporation.
SECTION 3. PRESIDENT. The president, subject to the directions of the
board of directors, shall be responsible for the general and active management
of the business and affairs of the Corporation, has the power to sign
certificates of stock, bonds, deeds, and contracts for the Corporation, and
shall preside as chairman at all meetings of the shareholders. Unless otherwise
directed by the Board of Directors, all the officers of the Corporation shall be
subject to the authority and supervision of the President.
SECTION 4. VICE PRESIDENTS. Each vice president has the power to sign
bonds, deeds, and contracts for the Corporation and shall have the other powers
and perform the other duties prescribed by the board of directors or the
president. Unless the board otherwise provides, if the president is absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties and
may exercise any of the powers of the president. Any vice president may sign,
with the secretary or assistant secretary, certificates for stock of the
Corporation.
SECTION 5. SECRETARY. The secretary shall have the power to sign
contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in one
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)
maintain custody of the corporate records and the corporate seal, attest the
signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the
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Corporation, and assure that the seal is affixed to all documents of which
execution on behalf of the Corporation under its seal is duly authorized, (d)
keep a register of the post office address of each shareholder that shall be
furnished to the secretary by the shareholder, (e) sign with the president, or a
vice president, certificates for shares of stock of the Corporation, the
issuance of which have been authorized by resolution of the board of directors,
(f) have general charge of the stock transfer books of the Corporation, and (g)
in general perform all duties incident to the office of secretary and other
duties as from time to time may be prescribed by the president or the board of
directors.
SECTION 6. 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 monies in the name of the Corporation in the
banks, trust companies, or other depositaries as shall be selected by the board
of directors, and (c) in general perform all the duties incident to the office
of treasurer and other duties as from time to time may be assigned to him by the
president or the board of directors. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his duties in the sum
and with the surety or sureties that the board of directors determines.
SECTION 7. REMOVAL OF OFFICERS. An officer or agent elected or
appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or assistant
officer, if appointed by another officer, may likewise be removed by such
officer. Removal shall be without prejudice to any contract rights of the person
removed. The appointment of any person as an officer, agent, or employee of the
Corporation does not create any contract rights. The board of directors may fill
a vacancy, however occurring, in any office.
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, its 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. An officer's resignation does not affect
the officer's contract rights, if any, with the corporation.
SECTION 8. SALARIES. The board of directors from time to time shall
fix the salaries of the officers, and no officer shall be prevented from
receiving his salary merely because he is also a director of the Corporation.
ARTICLE V. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or threatened
to be made, a party to any threatened, pending, or completed action or
proceeding, whether civil, criminal,
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administrative, or investigative, because he is or was a director, officer,
employee, or agent of this Corporation or serves or served any other corporation
or other enterprise in any capacity at the request of this Corporation, shall be
indemnified by this Corporation, and this Corporation may advance his related
expenses to the full extent permitted by Florida law. In discharging his duty,
any director, officer, employee, or agent, when acting in good faith, may rely
upon information, opinions, reports, or statements, including financial
statements and other financial data, in each case prepared or presented by (1)
one or more officers or employees of the Corporation whom the director, officer,
employee, or agent reasonably believes to be reliable and competent in the
matters presented, (2) counsel, public accountants, or other persons as to
matters that the director, officer, employee, or agent believes to be within
that person's professional or expert competence, or (3) in the case of a
director, a committee of the board of directors upon which he does not serve,
duly designated according to law, as to matters within its designated authority,
if the director reasonably believes that the committee is competent. The
foregoing right of indemnification or reimbursement shall not be exclusive of
other rights to which the person, his heirs, or personal representatives may be
entitled. The Corporation may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying these
persons. The insurance may be for the benefit of all directors, officers, or
employees.
ARTICLE VI. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Shares may but need not be represented by
certificates. The board of directors may authorize the issuance of some or all
of the shares of the Corporation of any or all of its classes or series without
certificates. If certificates are to be issued, the share must first be fully
paid.
SECTION 2. FORM. Certificates evidencing shares in this Corporation
shall be signed by the president or a vice president and the secretary,
assistant secretary or any other officer authorized by the board of directors,
and may be sealed with the seal of this Corporation or a facsimile of the seal.
Unless the Corporation's stock is registered pursuant to every applicable
securities law, each certificate shall bear an appropriate legend restricting
the transfer of the shares evidenced by that certificate.
SECTION 3. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Corporation
may issue a new certificate in the place of any certificate previously issued if
the shareholder of record (a) makes proof in affidavit form that the certificate
has been lost, destroyed, or wrongfully taken, (b) requests the issue of a new
certificate before the Corporation has notice that the certificate has been
acquired by the purchaser for value in good faith and without notice of any
adverse claim, (c) if requested by the Corporation, gives bond in the form that
the Corporation directs, to indemnify the Corporation, the transfer agent, and
the registrar against any claim that may be made concerning the alleged loss,
destruction, or theft of a certificate, and (d) satisfies any other reasonable
requirements imposed by the Corporation.
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SECTION 4. RESTRICTIVE LEGEND. Every certificate evidencing shares
that are restricted as to sale, disposition, or other transfer shall bear a
legend summarizing the restriction or stating that the Corporation will furnish
to any shareholder, upon request and without charge, a full statement of the
restriction.
ARTICLE VII. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law.
ARTICLE VIII. SEAL
The corporate seal shall have the name of the Corporation and the word
"seal" inscribed on it, and may be a facsimile, engraved, printed, or an
impression seal.
ARTICLE IX. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws may be
adopted, by either a vote of a majority of the full board of directors or by
vote of the holders of a majority of the issued and outstanding shares entitled
to vote, but the board of directors may not amend or repeal any bylaw adopted by
the shareholders if the shareholders specifically provide that the bylaw is not
subject to amendment or repeal by the directors. In order to be effective, any
amendment approved hereby must be in writing and attached to these bylaws.
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