SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-QSB
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarter ended July 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission file number 0-011013
COMSTOCK INDUSTRIES, INC.
--------------------------------------------
(Exact name of registrant as specified in its charter)
Florida 65-1030375
---------- ---------------
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1470 Egret Road, Homestead, FL 33035
-------------------------------------------- --------
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: 305-470-9100
Check whether the issuer: (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Exchange Act during the past 12
months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to the filing
requirements for at least the past 90 days:
YES [X] NO [ ]
State the number of shares outstanding of each of the issuer's
classes of common equity, as of the latest practicable date: As of
July 31, 2000, there were 8,185,885 shares of the Registrant's $.10
par value common stock outstanding.
Transitional Small Business Disclosure Format (check one):
YES [ ] NO [X]
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Balance Sheet
Statements of Operations
Statements of Cash Flows
Notes to Financial Statements
<PAGE>
COMSTOCK INDUSTRIES, INC.
(A Development Stage Company)
Balance Sheet
<TABLE>
<S> <C> <C>
ASSETS
July 31, July 31,
2000 1999
--------- --------
-------- ---------
CURRENT ASSETS
Cash $ 0 $ 0
---- ----
Total Current Assets 0 0
---- ----
TOTAL ASSETS $ 0 $ 0
=== ===
LIABILITIES AND STOCKHOLDERS' EQUITY
(DEFICIT)
CURRENT LIABILITIES
Accounts Payable $ 0 $ 0
---- ----
Total Current Liabilities 0 0
---- ----
Total Liabilities 0 0
---- ----
STOCKHOLDERS' EQUITY (DEFICIT)
Common stock: 15,000,000 818,589 818,589
shares authorized
of $0.10 par value,
8,185,885 shares issued
and outstanding
Additional paid-in capital (698,879) (698,879)
Deficit accumulated during the (119,710) (119,710)
development stage ----------- -----------
Total Stockholders' Equity 0 0
(Deficit) ---- ----
TOTAL LIABILITIES AND $ 0 $ 0
STOCKHOLDERS' EQUITY === ===
</TABLE>
The accompanying notes are an integral part of these financial
statements
<PAGE>
COMSTOCK INDUSTRIES, INC.
(A Development Stage Company)
Statements of Operations
<TABLE>
<S> <C> <C>
For the 3-month Period
Ended
July 31, 2000 July 31, 1999
----------------- -----------------
REVENUES $ 0 $ 0
---- ----
EXPENSES
General and administrative expenses 0 0
---- ----
TOTAL OPERATING EXPENSES 0 0
---- ----
LOSS FROM DISCONTINUED OPERATIONS (Note 3) 0 0
---- ----
NET LOSS $ 0 $ 0
=== ===
BASIC NET LOSS PER SHARE $ 0 $ 0
OF COMMON STOCK === ===
BASIC WEIGHTED AVERAGE
NUMBER OF SHARES 8,185,885 8,815,885
OUTSTANDING ======== ========
</TABLE>
The accompanying notes are an integral part of these financial
statements
<PAGE>
COMSTOCK INDUSTRIES, INC.
(A Development Stage Company)
Statements of Cash Flows
<TABLE>
<S> <C> <C>
For the 3-month Period
Ended
July 31, 2000 July 31, 1999
----------------- -----------------
CASH FLOWS FROM OPERATING ACTIVITIES
Net Loss $ 0 $ 0
---- ----
Adjustments to reconcile net loss to net cash 0 0
used by operating activities ---- ----
Increase in accounts payable 0 0
---- ----
Net Cash Used by Operating Activities 0 0
---- ----
CASH FLOWS FROM INVESTING ACTIVITIES
CASH FLOWS FROM FINANCING ACTIVITIES
Issuance of common stock for cash 0 0
---- ----
Contributed capital 0 0
---- ----
Net Cash Provided by Financing Activities 0 0
---- ----
NET INCREASE (DECREASE) IN CASH 0 0
---- ----
CASH AT BEGINNING OF PERIOD 0 0
---- ----
CASH AT END OF PERIOD $ 0 $ 0
=== ===
CASH PAID FOR:
Interest $ 0 $ 0
---- ----
Income Taxes $ 0 $ 0
---- ----
</TABLE>
The accompanying notes are an integral part of these financial statements
<PAGE>
COMSTOCK INDUSTRIES, INC.
(A Development Stage Company)
Notes to the Financial Statements
NOTE 1 - ORGANIZATION AND HISTORY
Comstock Industries, Inc. was organized under the
laws of the State of Nevada on April 3, 1928 as
Canadian Metals Syndicate, Inc. The name of the
Company was changed on August 17, 1983 to Comstock
Industries, Inc. Comstock Industries, Inc. is
considered a development stage company as defined
in SFAS No. 7.
a. Accounting Method
Comstock Industries, Inc.'s financial statements
are prepared using the accrual method of
accounting. Comstock Industries, Inc. has elected
an April 30 year end.
b. Cash and Cash Equivalents
Cash equivalents include short-term, highly liquid
investments with maturities of three months or less
at the time of acquisition.
c. Basic Loss Per Share
The computations of basic loss per share of common
stock are based on the weighted average number of
shares outstanding during the period of the
financial statements.
d. Estimates
The preparation of financial statements in
conformity with generally accepted accounting
principles requires management to make estimates
and assumptions that affect the reported amounts of
assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial
statements and the reported amounts of revenues and
expenses during the reporting period. Actual
results could differ from those estimates.
<PAGE>
COMSTOCK INDUSTRIES, INC.
(A Development Stage Company)
Notes to the Financial Statements
NOTE 2 - GOING CONCERN
Comstock Industries, Inc.'s financial statements
are prepared using generally accepted accounting
principles applicable to a going concern which
contemplates the realization of assets and
liquidation of liabilities in the normal course of
business. However, Comstock Industries, Inc. does
not have significant cash or other material assets,
nor does it have an established source of revenues
sufficient to cover its operating costs and to
allow it to continue as a going concern. It is the
intent of Comstock Industries, Inc. to seek a
merger with an existing, operating company. Until
that time, shareholders of Comstock Industries,
Inc. have committed to meeting its minimal
operating needs.
NOTE 3 - DISCONTINUED OPERATIONS
Comstock Industries, Inc. has been inactive since
1983. Therefore, all revenues generated by
Comstock Industries, Inc. have been netted against
the expenses and are grouped into the discontinued
operations line on the statement of operations.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR
PLAN OF OPERATION
Special Note Regarding Forward-Looking Statements
Certain statements in this report and elsewhere (such as
in other filings by us with the Securities and Exchange
Commission ("SEC"), press releases, presentations by us or
our management and oral statements) may constitute
"forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Words
such as "expects", "anticipates", "intends", "plans",
"believes", "seeks", "estimates" and "should", and
variations of these words and similar expressions, are
intended to identify these forward-looking statements.
Our actual results could differ materially from those
anticipated in these forward-looking statements. Factors
that might cause or contribute to such differences
include, among others factors, competitive pressures, the
growth rate of industry and commerce, constantly changing
technology, and market acceptance of Comstock Industries,
Inc.'s products and services. We undertake no obligation
to publicly release the result of any revisions to these
forward-looking statements that we may make to reflect
events or circumstances after the date hereof or the
occurrence of unanticipated events.
Plan of Operation
Comstock Industries has not had any revenues from
operations during the 3-month period ended July 31, 2000.
All of its activities during the 3-month period ended July
31, 2000 were devoted to establishing a business plan and
conducting limited financing activities to obtain working
capital.
During the 3-month period ended July 31, 2000,
Comstock Industries incurred general and administrative
expenses of $7,600. However, these expenses will not be
billed to Comstock until sometime after August 15, 2000.
These expenses were principally the costs associated with
professional fees. The total expenses, if reflected in
the financial information included herewith, would have
reflected a loss for the 3-month period ended July 31,
2000 of $7,600. Comstock Industries has no current
ability to fund these expenses. However, certain
shareholders of Comstock Industries have indicated a
willingness to advance funds to Comstock Industries in
order to meet current expenses.
Comstock Industries will be required to raise
additional funds during the next 12 months to meet its
cash requirements.
Comstock Industries has not undertaken any product
research and development during the 3-month period ended
July 31, 2000.
Comstock Industries does not expect to purchase or
sell any plant or significant equipment.
Comstock Industries does not expect any significant
changes in its number of employees.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS. None.
ITEM 2. CHANGES IN SECURITIES. None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES. None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY
HOLDERS. None.
ITEM 5. OTHER EVENTS.
On July 21, 2000, Comstock Industries merged with and into
Comstock Industries, Florida, Inc. for the purpose of
changing its jurisdiction from Nevada to Florida. The
Articles of Merger (Florida and Nevada), Plan and
Agreement of Merger, Articles of Incorporation and Bylaws
of Comstock Industries are attached as exhibits hereof.
ITEM 6. EXHIBITS, LISTS AND REPORTS ON FORM 8-K:
(a) Exhibits.
<TABLE>
<S> <C> <C>
Exhibit Number Description Location
5.1 Articles of Merger (Florida) Filed Electronically Herewith
5.2 Articles of Merger (Nevada) Filed Electronically Herewith
5.3 Plan and Agreement of Merger Filed Electronically Herewith
5.4 Articles of Incorporation Filed Electronically Herewith
5.5 Bylaws Filed Electronically Herewith
27 Financial Data Schedule Filed Electronically Herewith
</TABLE>
(b) Reports on Form 8-K. No reports on Form 8-K were
filed during the quarter ended July 31, 2000.
SIGNATURES
In accordance with the requirements of Section 13
or 15(d) of the Securities and Exchange Act of 1934,
Comstock Industries, Inc. caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
COMSTOCK INDUSTRIES, INC.
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
August 11, 2000
<PAGE>
EXHIBIT 5.1
ARTICLES OF MERGER OF
COMSTOCK INDUSTRIES, INC.,
A NEVADA CORPORATION
WITH AND INTO
COMSTOCK INDUSTRIES FLORIDA, INC.,
A FLORIDA CORPORATION
(Florida)
Pursuant to the provisions of Section 607.1105 of
the Florida Business Corporation Act (the "FBCA"), and for
the purpose of effecting the merger (the "Merger") of
Comstock Industries, Inc., a Nevada corporation ("Comstock
Nevada") with and into Comstock Industries Florida, Inc.,
a Florida corporation ("Comstock Florida"), Comstock
Florida and Comstock Nevada have adopted these Articles of
Merger (the "Articles of Merger").
(a) The Merger Agreement. The plan and
agreement for merging Comstock Nevada with and into
Comstock Florida is set forth in the Agreement and Plan of
Merger dated July 10, 2000 (the "Merger Agreement"), a
copy of which is attached hereto as Exhibit 1 and
incorporated herein by reference as if fully set forth
herein. Pursuant to the Merger Agreement, Comstock
Florida shall be the surviving corporation.
(b) Approval By Comstock Florida. The Merger
Agreement was approved and adopted by the sole shareholder
of Comstock Florida by written consent on July 10, 2000 in
accordance with the provisions of 607.0704 of the FBCA.
(c) Authorization and Approval By Comstock
Nevada. The Merger of Comstock Nevada with and into
Comstock Florida is permitted by and is in compliance with
the Nevada General Corporation Law (the "NGCL"), the
jurisdiction of organization of Comstock Nevada. The
Merger Agreement was unanimously recommended for approval
by the board of directors of Comstock Nevada on July 10,
2000, and was approved and adopted by the shareholders of
Comstock Nevada on July 10, 2000.
(d) Effective Time. The Merger shall become
effective in the State of Florida (the "Effective Time")
on the date of filing of these Articles by the Secretary
of State of Florida.
(e) Amendment to Articles of Incorporation of
Comstock Florida. Article I of the Articles of
Incorporation of Comstock Florida shall be deleted and the
following Article I shall be inserted in its place:
ARTICLE I
CORPORATE NAME
The name of this corporation shall be:
Comstock Industries, Inc.
IN WITNESS WHEREOF, the parties have executed
these Articles this 11th day of July, 2000.
Comstock Industries Florida
Inc., a Florida corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
Comstock Industries, Inc.,
a Nevada corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
<PAGE>
EXHIBIT 5.2
ARTICLES OF MERGER OF
COMSTOCK INDUSTRIES, INC.,
A NEVADA CORPORATION
WITH AND INTO
COMSTOCK INDUSTRIES FLORIDA, INC.,
A FLORIDA CORPORATION
(NEVADA)
Pursuant to the provisions of Section 92A.200 of
the Nevada General Corporation Law (the "NGCL"), and for
the purpose of effecting the merger (the "Merger") of
Comstock Industries, Inc., a Nevada corporation ("Comstock
Nevada"), with and into Comstock Industries Florida, Inc.,
a Florida corporation ("Comstock Florida"), Comstock
Florida and Comstock Nevada have adopted these Articles of
Merger (the "Articles of Merger").
(f) The Merger Agreement. The plan and
agreement for merging Comstock Nevada with and into
Comstock Florida is set forth in the Agreement and Plan of
Merger dated July 10, 2000 (the "Merger Agreement"), a
copy of which is attached hereto as Exhibit 1 and
incorporated herein by reference as if fully set forth
herein. Pursuant to the Merger Agreement, Comstock
Florida shall be the surviving corporation.
(g) Approval By Comstock Florida. The Merger
Agreement was approved and adopted by the sole shareholder
of Comstock Florida by written consent on July 10, 2000 in
accordance with the provisions of 607.0704 of the FBCA.
(h) Approval By Comstock Nevada. The Merger
Agreement was unanimously recommended for approval by the
board of directors of Comstock Nevada on July 10, 2000.
As of July 10, 2000 (the "Record Date") 8,185,885 shares
of common stock of Comstock Nevada were outstanding, and
each such share of common stock was entitled to one vote.
Pursuant to a certain action by written consent of
shareholders (the "Action") dated July 10, 2000,
shareholders holding 7,033,925 shares of common stock of
Comstock Nevada authorized the Merger.
(i) Effective Time. The Merger shall become
effective in the State of Nevada (the "Effective Time") on
the date of filing of this Certificate by the State of
Nevada.
(j) Designation of Nevada Secretary of State
as Agent for Service of Process. On and after the
Effective Time, Comstock Florida appoints the Secretary of
State of Nevada as its agent to accept service of process.
The Nevada Secretary of State is requested to mail a copy
of any such process to Comstock Industries Florida, Inc.
at 5100 Town Center Circle, Suite 330, Boca Raton, Florida
33486, Attention: J. Antonio Martinez, President.
IN WITNESS WHEREOF, the parties have executed this
Certificate this 11th day of July, 2000.
Comstock Industries Florida
Inc., a Florida corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
Attest: /s/ J. Antonio Martinez
J. Antonio Martinez, Secretary
Comstock Industries,
Inc., a Nevada corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
Attest: J. Antonio Martinez
J. Antonio Martinez, Secretary
<PAGE>
EXHIBIT 5.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated July 10,
2000 (the "Agreement"), is entered into between COMSTOCK
INDUSTRIES FLORIDA, INC., a Florida corporation ("Comstock
Florida"), and COMSTOCK INDUSTRIES, INC., a Nevada
corporation ("Comstock Nevada").
BACKGROUND:
A. Comstock Nevada has an aggregate authorized
capital of Fifteen Million (15,000,000) shares, consisting
of 15,000,000 shares of common stock, $0.10 par value per
share (the "Nevada Common Stock"), and no shares of
Preferred Stock (the Nevada Preferred Stock"). On July
10, 2000, there were 8,185,885 shares of Nevada Common
Stock and no Shares of Nevada Preferred Stock issued and
outstanding.
B. Comstock Florida has an aggregate authorized
capital of one hundred million (100,000,000) shares,
consisting of 80,000,000 shares of common stock, $.0001
par value per share (the "Florida Common Stock"), and
20,000,000 shares of Preferred Stock, (the Florida
Preferred Stock"). On July 10, 2000 there were 100 shares
of Florida Common Stock and no Shares of Florida Preferred
Stock issued and outstanding.
C. The respective Boards of Directors of Comstock
Florida and Comstock Nevada believe that the best
interests of Comstock Florida and Comstock Nevada and
their respective shareholders will be served by the merger
of Comstock Nevada with and into Comstock Florida under
and pursuant to the provisions of this Agreement and the
Nevada General Corporation Law (the "Nevada Law") 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. Comstock Nevada shall be merged
with and into Comstock Florida (the "Merger").
2. EFFECTIVE DATE. The Merger shall become
effective immediately upon the filing of this Agreement or
a certificate of merger with the Secretary of State of
Nevada in accordance with the Nevada Law 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. Comstock 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 Comstock Nevada shall cease.
4. NAME OF SURVIVING CORPORATION. On the
Effective Date, the Articles of Incorporation of Comstock
Florida shall be amended to change the name of Comstock
Florida to "Comstock Industries, Inc."
5. ARTICLES OF INCORPORATION. Except as
provided in Paragraph 4, the Articles of Incorporation of
Comstock Florida as it exists on the Effective Date shall
be the Articles of Incorporation of Comstock 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 Bylaws of Comstock Florida
as they exist on the Effective Date shall be the Bylaws of
Comstock 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.
7. BOARD OF DIRECTORS AND OFFICERS. The
members of the Board of Directors and officers of Comstock
Nevada immediately prior to the Effective Date shall be
members of the Board of Directors and the officers,
respectively, of Comstock Florida following the Effective
Date, and such persons shall serve in such positions for
the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
8. RETIREMENT OF OUTSTANDING FLORIDA STOCK.
On the Effective Date, each of the 100 shares of the
Florida Common Stock presently issued and outstanding
shall be retired, and no shares of Florida Common Stock or
other securities of Comstock Florida shall be issued in
respect thereof.
9. CONVERSION OF OUTSTANDING COMSTOCK NEVADA
STOCK. On the Effective Date, each issued and outstanding
share of the Nevada Common Stock and all rights in respect
thereof shall be converted into one fully-paid and
nonassessable share of Florida Common Stock, and each
certificate representing shares of Nevada Common Stock
shall for all purposes be deemed to evidence the ownership
of the same number of shares of Florida Common Stock as
are set forth in such certificate. After the Effective
Date, each holder of an outstanding certificate
representing shares of Nevada Common Stock may, at such
shareholder's option, surrender the same to Comstock
Florida's registrar and transfer agent for cancellation,
and each such shareholder shall be entitled to receive in
exchange therefore a certificate(s) evidencing the
ownership of the same number of shares of Florida Common
Stock as are represented by the Comstock Nevada
certificate(s) surrendered to Comstock Florida's registrar
and transfer agent.
10. STOCK OPTIONS AND WARRANTS. On the
Effective Date, each stock option, stock warrant, and
other right to subscribe for or purchase shares of Nevada
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 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 Nevada 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 Florida Common Stock.
11. RIGHTS AND LIABILITIES OF COMSTOCK
FLORIDA. On and after the Effective Date, and all in the
manner of and as more fully set forth in the Florida Act
and the Nevada Law:
(a) the title to all real estate and other
property, or any interest therein, owned by each of
Comstock Nevada and Comstock Florida shall be vested in
Comstock Florida without reversion or impairment;
(b) Comstock 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 Comstock Nevada and Comstock Florida
without reversion or impairment;
(c) Comstock Florida shall thenceforth be
responsible and liable for all the liabilities and
obligations of each of Comstock Nevada and Comstock Florida;
(d) any claim existing or action or
proceeding pending by or against Comstock Nevada or
Comstock Florida may be continued as if the Merger did not
occur or Comstock Florida may be substituted for Comstock
Nevada in the proceeding;
(e) neither the rights of creditors nor any
liens upon the property of Comstock Nevada or Comstock
Florida shall be impaired by the Merger; and
(f) Comstock 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 Comstock Nevada and Comstock
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
Comstock Nevada and Comstock Florida 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
Comstock Nevada or Comstock Florida 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 Comstock Florida; or
(c) change any other terms or conditions of
this Agreement if such change would adversely affect the
holders of any capital stock of either Comstock Nevada and
Comstock Florida.
14. REGISTERED OFFICE. The registered office
of Comstock Florida in the State of Florida is located at
5100 Town Center Circle, Suite 330, Boca Raton, Florida
33486 and EHG Registered Agents, Inc., is the registered
agent of Florida at such address.
15. INSPECTION OF AGREEMENT. Executed copies
of this Agreement will be on file at the principal place
of business of Comstock Florida at 5100 Town Center
Circle, Suite 330, Boca Raton, Florida 33486. A copy of
this Agreement shall be furnished by Comstock Florida, on
request and without cost, to any shareholder of either
Comstock Nevada or Comstock 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, Comstock Florida agrees that it may be
served with process in Nevada in any proceeding for
enforcement of any obligation of Comstock Nevada or
Comstock Florida arising from the Merger.
18. DESIGNATION OF NEVADA SECRETARY OF STATE
AS AGENT FOR SERVICE OF PROCESS. On and after the
Effective Date, Comstock Florida irrevocably appoints the
Secretary of State of Nevada as its agent to accept
service of process in any suit or other proceeding to
enforce the rights of any shareholders of Comstock Nevada
or Comstock Florida arising from the Merger. The Nevada
Secretary of State is requested to mail a copy of any such
process to Comstock Florida at 5100 Town Center Circle,
Suite 330, Boca Raton, Florida 33486, Attn: J. Antonio
Martinez, President.
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.
Comstock Industries,
Inc., a Nevada corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
Attest: J. Antonio Martinez
J. Antonio Martinez, Secretary
Comstock Industries Florida
Inc., a Florida corporation
By: /s/ J. Antonio Martinez
J. Antonio Martinez, President
Attest: /s/ J. Antonio Martinez
J. Antonio Martinez, Secretary
<PAGE>
EXHIBIT 5.4
ARTICLES OF INCORPORATION
OF
COMSTOCK INDUSTRIES FLORIDA, INC.
The undersigned, incorporator for purposes of
forming a corporation under the Florida Business
Corporation Act, hereby adopts the following Articles of
Incorporation:
ARTICLE I
CORPORATE NAME
The name of the corporation is COMSTOCK INDUSTRIES
FLORIDA, INC. (the "Corporation").
ARTICLE II
INITIAL ADDRESS
The initial street address and mailing address of
the principal office of the Corporation is:
5100 Town Center Circle
Suite 330
Boca Raton, Florida 33486
ARTICLE III
CAPITALIZATION
The aggregate number of shares of all classes that
the Corporation shall have authority to issue is One
Hundred Million (100,000,000) shares, of which Eighty
Million (80,000,000) shares shall have a par value of
$.0001 and shall be a class designated as "Common Shares"
and of which Twenty Million (20,000,000) shares shall have
a par value of $.0001 and shall be a class designated as
"Preferred Shares".
B. Common Shares. Each Common Share shall entitle
the holder thereof to one vote. No holder of the Common
Shares shall be entitled to any right of cumulative voting.
C. Preferred Shares.
1. Preferred Shares may be issued from time
to time in one or more series, each such series to have
distinctive serial designations, as same shall hereafter
be determined in the resolution or resolutions providing
for the issuance of such Preferred Shares from time to
time as adopted by the Board of Directors pursuant to the
authority to do so, which authority is hereby vested in
the Board of Directors.
2. Each series of Preferred Shares, as
stated in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of any
series of Preferred Shares, may:
(a) have such number of shares;
(b) have such voting powers, full or limited,
or may be without voting power;
(c) be redeemable or convertible at such
time or times and at such prices;
(d) entitle the holders thereof to receive
distributions calculated in any manner, including but not
limited to dividends, which may be cumulative,
non-cumulative or partially cumulative; at such rate or
rates, on such conditions, from such date or dates, at
such times, and payable in preference to, or in such
relation to, the dividends payable on any other class or
classes or series of shares;
(e) have such preference over any other class
of shares with respect to distributions, including but not
limited to dividends and distributions upon dissolution of
the Corporation;
(f) be made convertible into, or exchangeable
for, shares of any other class or classes (except the
class having prior or superior rights and preferences as
to the dividends or distribution assets upon liquidation)
or of any other series of the same or any other class or
classes of shares of the Corporation at such price or
prices or at such rates of exchange, and with such
adjustments;
(g) be entitled to the benefit of a sinking
fund or purchase fund to be applied to the purchase or
redemption of shares of such series in such amount or
amounts;
(h) be entitled to the benefit of conditions
and restrictions upon the creation of indebtedness of the
Corporation or any subsidiary, upon the issue of any
additional shares (including additional shares of such
series or of any other series) and upon the payment of
dividends or the making of other distributions on, and the
purchase, redemption or other acquisition by the
Corporation or any subsidiary of any outstanding shares of
the Corporation; and
(i) have such other relative, participating,
optional or other special rights, and qualifications,
limitations or restrictions;
3. Except where otherwise set forth in the
resolution or resolutions adopted by the Board of
Directors providing for the issuance of any series of
Preferred Shares, the number of shares comprised in such
series may be increased or decreased (but not below the
number of shares then outstanding) from time to time by
like action of the Board of Directors.
4. Shares of any series of Preferred Shares
which have been redeemed (whether through the operation of
a sinking fund or otherwise) or purchased by the
Corporation, or which, if convertible, were exchangeable,
have been converted into or exchanged for shares of any
other class or classes, shall have the status of
authorized and unissued Preferred Shares and may be
reissued as a part of the series of which they were
originally a part or may be reclassified and reissued as
part of a new series of Preferred Shares to be created by
resolution or resolutions of the Board of Directors or as
part of any other series of Preferred Shares, all subject
to the conditions or restrictions on issuance set forth in
the resolution of resolutions adopted by the Board of
Directors providing for the issue of any series of
Preferred Shares and to any filing required by law.
ARTICLE IV
REGISTERED AGENT
The registered agent and street address of the
initial registered office of the Corporation is:
E.H.G. Resident Agents, Inc.
5100 Town Center Circle, Suite 330
Boca Raton, Florida 33486
ARTICLE V
INCORPORATOR
The name and address of the Incorporator of the
Corporation is:
Edward H. Gilbert, Esq.
Edward H. Gilbert, P.A.
5100 Town Center Circle, Suite 330
Boca Raton, Florida 33486
ARTICLE VI
CORPORATE AUTHORITY
The corporation is organized for the purpose of
transacting any and all lawful activities or business for
wich corporations may be formed under the Florida Business
Corporations Act.
ARTICLE VII
DIRECTORS
The corporation shall have one director and the
number of directors may be increased or diminished from
time to time as provided in the bylaws of the Corporation
but shall never be less than one.
ARTICLE VIII
BYLAWS
The initial Bylaws of the corporation shall be
adopted by the Board of Directors. In furtherance of and
not in limitation of the power conferred upon the Board of
Directors by law, the Board of Directors shall have power
to make, adopt, alter, amend and repeal from time to time
Bylaws of the Corporation, subject to the right of the
stockholders to alter and repeal Bylaws made by the Board
of Directors.
ARTICLE IX
CONFLICTS
No contract or transaction between the Corporation
and one or more of its directors or officers or between
the Corporation and any other corporation, partnership,
association or other organization in which one or more of
its directors or officers are directors or officers or
have a financial interest, shall be void or voidable
solely for this reason, or solely because the directors or
officers are present at or participate in the meeting of
the board or committee thereof which authorizes the
contract or transaction, or solely because the directors
or officers or their votes are counted for such purpose.
ARTICLE X
DIRECTOR AND OFFICER INDEMNIFICATION
(a) Each person who was or is made a party or
is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil,
criminal or administrative, (hereinafter a "Proceeding"),
or is contacted by any governmental or regulatory body in
connection with any investigation or inquiry (hereinafter
an "Investigation"), by reason of the fact that such
person is or was a director or executive officer (as such
term is utilized pursuant to interpretations under Section
16 of the Securities Exchange Act of 1934) of the
corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect
to employee benefit plans (hereinafter an "Indemnitee"),
whether the basis of such Proceeding or Investigation is
alleged action in an official capacity or in any other
capacity as set forth above shall be indemnified and held
harmless by the corporation to the fullest extent
authorized by the Florida Business Corporation Act, as the
same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such
amendment permits the corporation to provide broader
indemnification rights than such law permitted the
corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) or the costs of reasonable
settlement made with a view to curtailment of the cost of
litigation reasonably incurred or suffered by such
Indemnitee in connection therewith and such
indemnification shall continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent and
shall inure to the benefit of the Indemnitee's heirs,
personal representatives, executors and administrators;
provided, however, that except as provided in paragraph
(b) hereof with respect to Proceedings to enforce rights
to indemnification, the corporation shall indemnify any
such Indemnitee in connection with a proceeding (or part
thereof) initiated by such Indemnitee only if such
proceeding (or part thereof) was authorized by the board
of directors of the corporation. The right to
indemnification conferred in this Article shall be a
contract right and shall include the right to be paid by
the corporation the expenses incurred in defending any
such proceeding in advance of its final disposition
(hereinafter an "Advancement of Expenses"); provided,
however, that the Advancement of Expenses shall be made
only upon delivery to the corporation of a personal
guarantee by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined
by final judicial decision from which there is no further
right to appeal that such Indemnitee is or was not
entitled to be indemnified for such expenses under this
Article or otherwise (hereinafter a "Guarantee").
(b) If a claim under paragraph (a) of this
Article is not paid in full by the corporation within
sixty (60) days after a written claim has been received by
the corporation, except in the case of a claim for an
Advancement of Expenses in which case the applicable
period shall be twenty (20) days, the Indemnitee may at
any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. If successful, in
whole or in part, in any such suit or in a suit brought by
the corporation to recover an Advancement of Expenses
pursuant to the terms of a Guarantee, the Indemnitee shall
be entitled to be paid also the expense of prosecuting or
defending such suit. In (1) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder
(but not in a suit brought by the Indemnitee to enforce a
right to an Advancement of Expenses) it shall be a defense
that the Indemnitee has not met the applicable standard of
conduct set forth in the Florida Business Corporation Act;
and (2) in any suit by the corporation to recover an
Advancement of Expenses, pursuant to the terms of a
Guarantee, the corporation shall be entitled to recover
such expenses upon a final adjudication that the
Indemnitee has not met the applicable standard of conduct
set forth in the Florida Business Corporation Act, neither
the failure of the corporation (including its board of
directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of
such suit that indemnification of the Indemnitee is proper
in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the Florida
Business Corporation Act, nor an actual determination by
the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the
Indemnitee has not met such applicable standard of conduct
(or in the case of such a suit brought by the Indemnitee)
shall be a defense to such suit. In any suit brought by
the Indemnitee to enforce a right hereunder, or by the
corporation to recover an Advancement of Expenses pursuant
to the terms of a Guarantee, the burden of proving that
the Indemnitee is not entitled to be indemnified or to
such Advancement of Expenses under this Section or
otherwise shall be on the corporation.
(c) The right to indemnification and to the
Advancement of Expenses conferred in this Article shall
not be exclusive of any other right which any person may
have or hereafter acquire under any statute, these
Articles of Incorporation, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) The corporation may maintain insurance,
at its expense, to protect itself and any director,
officer, employee or agent of the corporation or another
corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether
or not the corporation would have the power to indemnify
such person against such expense, liability or loss under
the Florida Business Corporation Act.
(e) The corporation may, to the extent
authorized from time to time by the Board of Directors,
grant rights to indemnification and to the Advancement of
Expenses, to any employee or agent of the corporation to
the fullest extent of the provisions of this Article with
respect to the indemnification and Advancement of Expenses
of directors, and executive officers of the corporation.
ARTICLE XI
DIRECTOR LIABILITY
To the maximum extent permitted by the Florida
Business Corporation Act as the same exists or may
hereafter be amended, no director of this Corporation
shall be liable to the Corporation or its shareholders for
monetary damages arising by reason of actions or omissions
constituting a breach of fiduciary duty as a director.
ARTICLE XII
CORPORATE EXISTENCE
The corporate existence of the Corporation shall
commence on the filing of these Articles of Incorporation
by the Department of State of the State of Florida.
ARTICLE XIII
AFFILIATED TRANSACTIONS
The Corporation expressly elects not to be
governed by Section 607.0901 of the Florida Business
Corporation Act, as amended from time to time, relating to
affiliated transactions. A director or officer of the
corporation shall not be disqualified by virtue of their
office from dealing or contracting with the corporation
either as a vendor, purchaser or otherwise, nor shall any
transaction or contract of the corporation be void or
voidable by reason of the fact that any director or
officer, or any firm of which any director or officer is a
member, or any corporation of which any director or
officer is a shareholder, officer or director is in any
way interested in such transaction or contract, no
director or officer shall be liable to account to the
corporation for any profits realized by or from or through
any such transaction or contract authorized, ratified or
approved as herein provided by reason of the fact that
they, or any firm or entity of which any director or
officer is a member, or any corporation of which any
director or officer is a shareholder, officer or director
or in any interested in such transaction or contract, nor
shall any director or officer be liable to account to the
corporation for any profits realized by or from or through
any such transaction or contract authorized, ratified or
approved as herein provided by reason of the fact that
they, or any firm of which they are a member, or any
corporation of which they are a shareholder, officer or
director interested in such transaction or contract. Said
interested officer or director of this corporation may be
counted in determining the existence of a quorum at any
meeting of the Board of Directors of this corporation
which shall authorize any such contract or transaction
with like force and effect as if they were not so
interested. Nothing herein contained shall create
liability in the events above described or prevent the
authorized approval of such contracts in any other manner
permitted by law. (Signature appears next page)
IN WITNESS WHEREOF, the undersigned incorporator
has executed these Articles of Incorporation this 7th day
of July, 2000.
/s/ Edward H. Gilbert
Edward H. Gilbert, Incorporator
<PAGE>
ACCEPTANCE OF APPOINTMENT
OF
REGISTERED AGENT
The undersigned hereby accepts the appointment as
registered agent of COMSTOCK INDUSTRIES FLORIDA, INC.
contained in the foregoing Articles of Incorporation and
states that the undersigned is familiar with and accepts
the obligations set forth in Section 607.0508 of the
Florida Business Corporation Act.
E.H.G. RESIDENT AGENTS, INC.
Date: July 7, 2000 By: /s/ Edward H. Gilbert
Edward H. Gilbert, President
<PAGE>
EXHIBIT 5.5
BYLAWS
OF
COMSTOCK INDUSTRIES, INC.
a Florida corporation
INDEX
Page
1. Offices. . . . . . . . . . . . . . . . . . . . . 1
1.1 Principal Office. . . . . . . . . . . . 1
1.2 Registered Office . . . . . . . . . . . 1
1.3 Other Offices . . . . . . . . . . . . . 1
2. Meetings of Shareholders . . . . . . . . . . . . 1
2.1 Annual Meeting. . . . . . . . . . . . . 1
2.2 Special Meeting . . . . . . . . . . . . 1
2.3 Shareholders' List for Meeting. . . . . 2
2.4 Record Date . . . . . . . . . . . . . . 2
2.5 Notice of Meetings and Adjournment. . . 3
2.6 Waiver of Notice. . . . . . . . . . . . 4
2.7 Shareholder Proposals . . . . . . . . . 4
3. Shareholder Voting . . . . . . . . . . . . . . . 4
3.1 Voting Group Defined. . . . . . . . . . 4
3.2 Quorum and Voting Requirements for Voting
Groups. . . . . . . . . . . . . . . . . 4
3.3 Action by Single and Multiple Voting
Groups. . . . . . . . . . . . . . . . . 5
3.4 Shareholder Quorum and Voting; Greater or
Lesser Voting Requirements. . . . . . . 5
3.5 Voting for Directors; Cumulative Voting 5
3.6 Voting Entitlement of Shares. . . . . . 6
3.7 Proxies . . . . . . . . . . . . . . . . 7
3.8 Shares Held by Nominees . . . . . . . . 8
3.9 Corporation's Acceptance of Votes . . . 9
3.10 Action by Shareholders Without Meeting. 10
4. Board of Directors and Officers. . . . . . . . . 10
4.1 Qualifications of Directors . . . . . . 10
4.2 Number of Directors . . . . . . . . . . 10
4.3 Terms of Directors Generally. . . . . . 11
4.4 Staggered Terms for Directors . . . . . 11
4.5 Vacancy on Board. . . . . . . . . . . . 11
4.6 Compensation of Directors . . . . . . . 11
4.7 Meetings. . . . . . . . . . . . . . . . 11
4.8 Action by Directors Without a Meeting . 12
4.9 Notice of Meetings. . . . . . . . . . . 12
4.10 Waiver of Notice. . . . . . . . . . . . 12
4.11 Quorum and Voting . . . . . . . . . . . 12
4.12 Committees. . . . . . . . . . . . . . . 13
4.13 Loans to Officers, Directors and
Employees; Guaranty of Obligations. . . 13
4.14 Required Officers . . . . . . . . . . . 14
4.15 Duties of Officers. . . . . . . . . . . 14
4.16 Resignation and Removal of Officers . . 14
4.17 Contract Rights of Officers . . . . . . 14
4.18 General Standards for Directors . . . . 14
4.19 Director Conflicts of Interest. . . . . 15
4.20 Resignation of Directors. . . . . . . . 16
5. Indemnification of Directors, Officers, Employees
and Agents . . . . . . . . . . . . . . . . . . . 16
5.1 Directors, Officers, Employees and Agents
16
6.1 Registered Office and Registered Agent. 20
6.2 Change of Registered Office or Registered
Agent; Resignation of Registered Agent. 20
7. Shares, Options, Dividends and Distributions . . 21
7.1 Authorized Shares . . . . . . . . . . . 21
7.2 Terms of Class or Series Determined by
Board of Directors. . . . . . . . . . . 21
7.3 Issued and Outstanding Shares . . . . . 22
7.4 Issuance of Shares. . . . . . . . . . . 22
7.5 Form and Content of Certificates. . . . 23
7.6 Shares Without Certificates . . . . . . 23
7.7 Restriction on Transfer of Shares and
Other Securities. . . . . . . . . . . . 24
7.8 Shareholder's Pre-emptive Rights. . . . 24
7.9 Corporation's Acquisition of its Own
Shares. . . . . . . . . . . . . . . . . 24
7.10 Share Options . . . . . . . . . . . . . 24
7.11 Terms and Conditions of Stock Rights and
Options . . . . . . . . . . . . . . . . 25
7.12 Share Dividends . . . . . . . . . . . . 25
7.13 Distributions to Shareholders . . . . . 25
8. Amendment of Articles and Bylaws . . . . . . . . 27
8.1 Authority to Amend the Articles of
Incorporation . . . . . . . . . . . . . 27
8.2 Amendment by Board of Directors . . . . 27
8.3 Amendment of Bylaws by Board of Directors
28
8.4 Bylaw Increasing Quorum or Voting
Requirements for Directors. . . . . . . 28
9. Records and Reports. . . . . . . . . . . . . . . 28
9.1 Corporate Records . . . . . . . . . . . 28
9.2 Financial Statements for Shareholders . 29
9.3 Other Reports to Shareholders . . . . . 30
9.4 Annual Report for Department of State . 30
10. Miscellaneous. . . . . . . . . . . . . . . . . . 30
10.1 Application of Florida Law. . . . . . . 30
10.2 Conflicts with Articles of Incorporation
30
10.3 Definition of the "Act" . . . . . . . . 31
10.4 Fiscal Year . . . . . . . . . . . . . . 31
10.5 Control Share Acquisitions. . . . . . . 31
BYLAWS
1. Offices.
1.1 Principal Office. The principal office
of the corporation in the State of Florida shall be
established at such places as the board of directors from
time to time determine.
1.2 Registered Office. The registered office
of the corporation in the State of Florida shall be at the
office of its registered agent as stated in the articles
of incorporation or as the board of directors shall from
time to time determine.
1.3 Other Offices. The corporation may have
additional offices at such other places, either within or
without the State of Florida, as the board of directors
may from time to time determine or the business of the
corporation may require.
2. Meetings of Shareholders.
2.1 Annual Meeting.
(a) The corporation shall hold a
meting of shareholders annually, for the election
of directors and for the transaction of any proper
business, at a time stated in or fixed in
accordance with a resolution of the board of
directors.
(b) Annual shareholders' meeting
may be held in or out of the State of Florida at a
place stated in or fixed in accordance with a
resolution by the board of directors or, when not
inconsistent with the board of directors'
resolution stated in the notice of the annual
meeting. If no place is stated in or fixed in
accordance with these bylaws, or stated in the
notice of the annual meeting, annual meetings
shall be held at the corporation's principal office.
(c) The failure to hold the
annual meeting at the time stated in or fixed in
accordance with these bylaws or pursuant to the
Act does not affect the validity of any corporate
action and shall not work a forfeiture of or
dissolution of the corporation.
2.2 Special Meeting.
(a) The corporation shall hold a
special meeting of shareholders:
(1) On call of its board of
directors or the person or persons authorized to
do so by the board of directors; or
(2) If the holders of not less
than 10% of all votes entitled to be cast on any
issue proposed to be considered at the proposed
special meeting sign, date and deliver to the
corporation's secretary one or more written
demands for the meeting describing the purpose or
purposes for which it is to be held.
(b) Special shareholders'
meetings may be held in or out of the State of
Florida at a place stated in or fixed in
accordance with a resolution of the board of
directors, or, when not inconsistent with the
board of directors' resolution, in the notice of
the special meeting. If no place is stated in or
fixed in accordance with these bylaws or in the
notice of the special meeting, special meetings
shall be held at the corporation's principal office.
(c) Only business within the
purpose or purposes described in the special
meeting notice may be conducted at a special
shareholders' meeting.
2.3 Shareholders' List for Meeting.
(a) After fixing a record date
for a meeting, a corporation shall prepare a list
of the names of all its shareholders who are
entitled to notice of a shareholders' meeting, in
accordance with the Florida Business Corporation
Act (the "Act"), or arranged by voting group, with
the address of, and the number and class and
series, if any, of shares held by, each.
(b) The shareholders' list must
be available for inspection by any shareholder for
a period of ten days prior to the meeting or such
shorter time as exists between the record date and
the meeting and continuing through the meeting at
the corporation's principal office, at a place
identified in the meeting notice in the city where
the meeting will be held, or at the office of the
corporation's transfer agent or registrar. A
shareholder or his or her agent or attorney is
entitled on written demand to inspect the list
(subject to the requirements of Section
607.1602(3) of the Act), during regular business
hours and at his or her expense, during the period
it is available for inspection.
(c) The corporation shall make
the shareholders' list available at the meeting,
and any shareholder or his or her agent or
attorney is entitled to inspect the list at any
time during the meeting or any adjournment.
2.4 Record Date.
(a) The board of directors may
set a record for purposes of determining the
shareholders entitled to notice of and to vote at
a shareholders' meeting; however, in no event may
a record date fixed by the board of directors be a
date preceding the date upon which the resolution
fixing the record date is adopted.
(b) Unless otherwise fixed by
the board of directors, the record date for
determining shareholders entitled to demand a
special meeting is the date the first shareholder
delivers his or her demand to the corporation. In
the event that the board of directors sets the
record date for a special meeting of shareholders,
it shall not be a date preceding the date upon
which the corporation receives the first demand
from a shareholders requesting a special meeting.
(c) If no prior action is
required by the board of directors pursuant to the
Act, and, unless otherwise fixed by the board of
directors, 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 under
Section 607.0704 of the Act. If prior action is
required by the board of directors pursuant to the
Act, the record date for determining shareholders
entitled to take action without a meeting is at
the close of business on the day on which the
board of directors adopts the resolution taking
such prior action.
(d) Unless otherwise fixed by
the board of directors, the record date for
determining the shareholders entitled to notice of
and to vote at an annual or special shareholders'
meeting is the close of business on the day before
the first notice is delivered to shareholders.
(e) A record date may not be
more than 70 days before the meeting or action
requiring a determination of shareholders.
(f) A determination of
shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any
adjournment of the meeting unless the board of
directors fixes a new record date, which it must
do if the meeting is adjourned to a date more than
one hundred twenty (120) days after the date fixed
for the original meeting.
2.5 Notice of Meetings and Adjournment.
(a) The corporation shall notify
shareholders of the date, time and place of each
annual and special shareholders's meeting no fewer
than ten (10) or more than sixty (60) days before
the meeting date. Unless the Act requires
otherwise, the corporation is required to give
notice only to shareholders entitled to vote at
the meeting. Notice shall be given in the manner
provided in Section 607.0141 of the Act, by or at
the direction of the president, the secretary, or
the officer or persons calling the meeting. If
the notice is mailed at least thirty (30) days
before the meeting, it may be done by a class of
United States mail other than first class.
Notwithstanding Section 607.0141, if mailed, such
notice shall be deemed to be delivered when
deposited in the United States mail addressed to
the shareholder at his or her address as it
appears on the stock transfer books of the
corporation, with postage thereon prepaid.
(b) Unless the Act or the
articles of incorporation requires otherwise,
notice of an annual meeting need not include a
description of the purpose or purposes for which
the meeting is called.
(c) Notice of a special meeting
must include a description of the purpose or
purposes for which the meeting is called.
(d) If an annual or special
shareholders meeting is adjourned to a different
date, time or place, notice need not be given of
the new date, time or place if the new date, time
or place is announced at the meeting before
adjournment is taken, and any business may be
transacted at the adjourned meeting that might
have been transacted on the original date of the
meeting. If a new record date is or must be fixed
under Section 607.0707 of the Act, however, notice
of the adjourned meeting must be given under this
section to persons who are shareholders as of the
new record date who are entitled to notice of the
meeting.
(e) Notwithstanding the
foregoing, no notice of a shareholders' meeting
need be given if:
(1) an annual report and proxy
statements for two (2) consecutive annual meetings
of shareholders, or
(2) all, and at least two checks
in payment of dividends or interest on securities
during a twelve (12) month period, have been sent
by first-class United States mail, addressed to
the shareholder at his or her address as it
appears on the share transfer books of the
corporation, and returned undeliverable. The
obligation of the corporation to give notice of a
shareholders' meeting to any such shareholder
shall be reinstated once the corporation has
received a new address for such shareholder for
entry on its share transfer books.
2.6 Waiver of Notice.
(a) A shareholder may waive any
notice required by the Act, the articles of
incorporation, or bylaws before or after the date
and time stated in the notice. The waiver must be
in writing, be signed by the shareholder entitled
to the notice, and be delivered to the corporation
for inclusion in the minutes or filing with the
corporate records. Neither the business to be
transacted at nor the purpose of any regular or
special meeting of the shareholders need be
specified in any written waiver of notice.
(b) A shareholder's attendance
at a meeting:
(1) waives objection to lack of
notice or defective notice of the meeting, unless
the shareholder at the beginning of the meeting
objects to holding the meeting or transacting
business at the meeting; or
(2) waives objection to
consideration of a particular matter at the
meeting that is not within the purpose or purposes
described in the meeting notice, unless the
shareholder objects to considering the matter when
it is presented.
2.7 Shareholder Proposals. Any stockholder
proposals to be considered at any annual or special
meeting must be made in writing and delivered to the
corporation not less than 90 days nor more than 120 days
prior to that meeting, but if the corporation provides
less than 30 days notice (actual or by public disclosure)
of the meeting, proposals will be deemed timely if they
are received not more than 10 days following the date of
the notice or of the public disclosure of the meeting.
Any proposals must comply with the requirements of Rule
14a-8 under Regulation 14A of the Securities Exchange Act
of 1934.
3. Shareholder Voting.
3.1 Voting Group Defined. A "voting group"
means all shares of one or more classes or series that
under the articles of incorporation or the Act are
entitled to vote and be counted together collectively on a
matter at a meeting of shareholders. All shares entitled
by the articles of incorporation or the Act to vote
generally on the matter are for that purpose a single
voting group.
3.2 Quorum and Voting Requirements for Voting
Groups.
(a) Shares entitled to vote as a
separate voting group may take action on a matter
at a meeting only if a quorum of those shares
exists with respect to that matter. Unless the
articles of incorporation or the Act provides
otherwise, a majority of the votes entitled to be
cast on the matter by the voting group constitutes
a quorum of that voting group for action on that
matter.
(b) Once a share is represented
for any purpose at a meeting, it is deemed present
for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting
unless a new record date is or must be set for
that adjourned meeting.
(c) If a quorum exists, action
on a matter (other than the election of directors)
by a voting group is approved if the votes cast
within the voting group favoring the action exceed
the votes cast opposing the action, unless the
articles of incorporation or the Act requires a
greater number of affirmative votes.
3.3 Action by Single and Multiple Voting Groups.
(a) If the articles of
incorporation or the Act provides for voting by a
single voting group on a matter, action on that
matter is taken when voted upon by that voting
group as provided in Section 3.02 of these bylaws.
(b) If the articles of
incorporation or the Act provides for voting by
two or more voting groups on a matter, action on
that matter is taken only when voted upon by each
of those voting groups counted separately as
provided in Section 3.02 of these bylaws. Action
may be taken by one voting group on a matter even
though no action is taken by another voting group
entitled to vote on the matter.
3.4 Shareholder Quorum and Voting; Greater or
Lesser Voting Requirements.
(a) A majority of the shares
entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of
shareholders, but in no event shall a quorum
consist of less than one-third (1/3) of the shares
entitled to vote. When a specified item of
business is required to be voted on by a class or
series of stock, a majority of the shares of such
class or series shall constitute a quorum for the
transaction of such item of business by that class
or series.
(b) An amendment to the articles
of incorporation that adds, changes or deletes a
greater or lesser quorum or voting requirement
must meet the same quorum requirement and be
adopted by the same vote and voting groups
required to take action under the quorum and
voting requirements then in effect or proposed to
be adopted, whichever is greater.
(c) If a quorum exists, action
on a matter, other than the election of directors,
is approved if the votes cast by the holders of
the shares represented at the meeting and entitled
to vote on the subject matter favoring the action
exceed the votes cast opposing the action, unless
a greater number of affirmative votes or voting by
classes is required by the Act or the articles of
incorporation.
(d) After a quorum has been
established at a shareholders' meeting, the
subsequent withdrawal of shareholders, so as to
reduce the number of shares entitled to vote at
the meeting below the number required for a
quorum, shall not affect the validity of any
action taken at the meeting or any adjournment
thereof.
(e) The articles of
incorporation may provide for a greater voting
requirement or a greater or lesser quorum
requirement for shareholders (or voting groups of
shareholders) than is provided by the Act, but in
no event shall a quorum consist of less than
one-third (1/3) of the shares entitled to vote.
3.5 Voting for Directors; Cumulative Voting.
(a) Directors are elected by a
plurality of the votes cast by the shares entitled
to vote in the election at a meeting at which a
quorum is present.
(b) Each shareholder who is
entitled to vote at an election of directors has
the right to vote the number of shares owned by
him for as many persons as there are directors to
be elected and for whose election he or she has a
right to vote. Shareholders do not have a right
to cumulate their votes for directors unless the
articles of incorporation so provide.
3.6 Voting Entitlement of Shares.
(a) Unless the articles of
incorporation or the Act provides otherwise, each
outstanding share, regardless of class, is
entitled to one vote on each matter submitted to a
vote at a meeting of shareholders. Only shares
are entitled to vote.
(b) The shares of the
corporation are not entitled to vote if they are
owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first
corporation owns, directly or indirectly, a
majority of shares entitled to vote for directors
of the second corporation.
(c) This section does not limit
the power of the corporation to vote any shares,
including its own shares, held by it in a
fiduciary capacity.
(d) Redeemable shares are not
entitled to vote on any matter, and shall not be
deemed to be outstanding, after notice of
redemption is mailed to the holders thereof and a
sum sufficient to redeem such shares has been
deposited with a bank, trust company, or other
financial institution upon an irrevocable
obligation to pay the holders the redemption price
upon surrender of the shares.
(e) Shares standing in the name
of another corporation, domestic or foreign, may
be voted by such officer, agent, or proxy as the
bylaws of the corporate shareholder may prescribe
or, in the absence of any applicable provision, by
such person as the board of directors of the
corporate shareholder may designate. In the
absence of any such designation or in case of
conflicting designation by the corporate
shareholder, the chairman of the board, the
president, any vice president, the secretary, and
the treasurer of the corporate shareholder, in
that order, shall be presumed to be fully
authorized to vote such shares.
(f) Shares held by an
administrator, executor, guardian, personal
representative, or conservator may be voted by
him, either in person or by proxy, without a
transfer of such shares into his or her name.
Shares standing in the name of a trustee may be
voted by him, either in person or by proxy, but no
trustee shall be entitled to vote shares held by
him without a transfer of such shares into his or
her name or the name of his or her nominee.
(g) Shares held by or under the
control of a receiver, a trustee in bankruptcy
proceedings, or an assignee for the benefit of
creditors may be voted by him without the transfer
thereof into his or her name.
(h) If a share or shares stand
of record in the names of two or more persons,
whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the
entirety, or otherwise, or if two or more persons
have the same fiduciary relationship respecting
the same shares, unless the secretary of the
corporation is given notice to the contrary and is
furnished with a copy of the instrument or order
appointing them or creating the relationship
wherein it is so provided, then acts with respect
to voting have the following effect:
(1) If only one votes, in person
or in proxy, his or her act binds all;
(2) If more than one vote, in
person or by proxy, the act of the majority so
voting binds all;
(3) If more than one vote, in
person or by proxy, but the vote is evenly split
on any particular matter, each faction is entitled
to vote the share or shares in question
proportionally;
(4) If the instrument or order
so filed shows that any such tenancy is held in
unequal interest, a majority or a vote evenly
split for purposes of this subsection shall be a
majority or a vote evenly split in interest;
(5) The principles of this
subsection shall apply, insofar as possible, to
execution of proxies, waivers, consents, or
objections and for the purpose of ascertaining the
presence of a quorum;
(6) Subject to Section 3.8 of
these bylaws, nothing herein contained shall
prevent trustees or other fiduciaries holding
shares registered in the name of a nominee from
causing such shares to be voted by such nominee as
the trustee or other fiduciary may direct. Such
nominee may vote shares as directed by a trustee
or their fiduciary without the necessity of
transferring the shares to the name of the trustee
or other fiduciary.
3.7 Proxies.
(a) A shareholder, other person
entitled to vote on behalf of a shareholder
pursuant to Section 3.6% of these bylaws, or
attorney in fact may vote the shareholder's shares
in person or by proxy.
(b) A shareholder may appoint a
proxy to vote or otherwise act for him by signing
an appointment form, either personally or by his
or her attorney in fact. An executed telegram or
cablegram appearing to have been transmitted by
such person, or a photographic, photostatic, or
equivalent reproduction of an appointment form, is
a sufficient appointment form.
(c) An appointment of a proxy is
effective when received by the secretary or other
officer or agent authorized to tabulate votes. An
appointment is valid for up to eleven (11) months
unless a longer period is expressly provided in
the appointment form.
(d) The death or incapacity of
the shareholder appointing a proxy does not affect
the right of the corporation to accept the proxy's
authority unless notice of the death or incapacity
is received by the secretary or other officer or
agent authorized to tabulate votes before the
proxy exercises his or her authority under the
appointment.
(e) An appointment of a proxy is
revocable by the shareholder unless the
appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an
interest. Appointments coupled with an interest
include the appointment of
(1) a pledge;
(2) a person who purchased or
agreed to purchase the shares;
(3) a creditor of the
corporation who extended credit to the corporation
under terms requiring the appointment;
(4) an employee of the
corporation whose employment contract requires the
appointment; or
(5) a party to a voting
agreement created in accordance with the Act.
(f) An appointment made
irrevocable under this section becomes revocable
when the interest with which it is coupled is
extinguished and, in a case provided for in
Subsection 3.7(e)(3)* or 3.7(e)(4)*, the proxy
becomes revocable three (3) years after the date
of the proxy or at the end of the period, if any,
specified herein, whichever is less, unless the
period of irrevocability is renewed from time to
time by the execution of a new irrevocable proxy
as provided in this section. This does not affect
the duration of a proxy under subsection 3.7(c) .
(g) A transferee for value of
shares subject to an irrevocable appointment may
revoke the appointment if he or she did not know
if its existence when he or she acquired the
shares and the existence of the irrevocable
appointment was not noted conspicuously on the
certificate representing the shares or on the
information statement for shares without
certificates.
(h) Subject to section 3.9( of
these bylaws and to any express limitation on the
proxy's authority appearing on the face of the
appointment form, a corporation is entitled to
accept the proxy's vote or other action as that of
the shareholder making the appointment.
(i) If an appointment form
expressly provides, any proxy holder may appoint,
in writing, a substitute to act in his or her place.
3.8 Shares Held by Nominees.
(a) The corporation may
establish a procedure by which the beneficial
owner of shares that are registered in the name of
a nominee is recognized by the corporation as the
shareholder. The extent of this recognition may
be determined in the procedure.
(b) The procedure may set forth
(1) the types of nominees to
which it applies;
(2) the rights or privileges
that the corporation recognizes in a beneficial
owner;
(3) the manner in which the
procedure is selected by the nominee;
(4) the information that must be
provided when the procedure is selected;
(5) the period for which
selection of the procedure is effective; and
(6) other aspects of the rights
and duties created.
3.9 Corporation's Acceptance of Votes.
(a) If the name signed on a
vote, consent, waiver, or proxy appointment
corresponds to the name of a shareholder, the
corporation if acting in good faith is entitled to
accept the vote, consent waiver, or proxy
appointment and give it effect as the act of the
shareholder.
(b) If the name signed on a
vote, consent, waiver or proxy appointment does
not correspond to the name of its shareholder, the
corporation if acting in good faith is
nevertheless entitled to accept the vote, consent,
waiver, or proxy appointment and give it effect as
the act of the shareholder if:
(1) the shareholder is an entity
and the name signed purports to be that of an
officer or agent of the entity;
(2) the name signed purports to
be that of an administrator, executor, guardian,
personal representative, or conservator
representing the shareholder and, if the
corporation requests, evidence of fiduciary status
acceptable to the corporation has been presented
with respect to the vote, consent, waiver, or
proxy appointment;
(3) the name signed purports to
be that of a receiver, trustee in bankruptcy, or
assignee for the benefit of creditors of the
shareholder and, if the corporation requests,
evidence of this status acceptable to the
corporation has been presented with respect to the
vote, consent, waiver, or proxy appointment;
(4) the name signed purports to
be that of a pledgee, beneficial owner, or
attorney in fact of the shareholder, if the
corporation requests, evidence acceptable to the
corporation of the signatory's authority to sign
for the shareholder has been presented with
respect to the vote, consent, waiver, or proxy
appointment; or
(5) two (2) or more persons are
the shareholder as covenants or fiduciaries and
the name signed purports to be the name of at
lease one (1) of the co-owners and the person
signing appears to be acting on behalf of all the
co-owners.
(c) The corporation is entitled
to reject a vote, consent, waiver, or proxy
appointment if the secretary or other officer or
agent authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the
validity of the signature on it or about the
signatory's authority to sign for the shareholder.
(d) The corporation and its
officer or agent who accepts or rejects a vote,
consent, waiver, or proxy appointment in good
faith and in accordance with the standards of this
section are not liable in damages to the
shareholder for the consequences of the acceptance
or rejection.
(e) Corporate action based on
the acceptance or rejection of a vote, consent,
waiver, or proxy appointment under this section is
valid unless a court of competent jurisdiction
determines otherwise.
3.10 Action by Shareholders Without Meeting.
(a) Any action required or
permitted by the Act to be taken at any annual or
special meeting of shareholders of the corporation
may be taken without a meeting, without prior
notice and without a vote, if the action is taken
by the holders of outstanding stock of each voting
group entitled to vote thereon having not less
than the minimum number of votes with respect to
each voting group that would be necessary to
authorize or take such action at a meeting at
which all voting groups and shares entitled to
vote thereon were present and voted. In order to
be effective, the action must be evidenced by one
or more written consents describing the action
taken, dated and signed by approving shareholders
having the requisite number of votes of each
voting group entitled to vote thereon, and
delivered to the corporation by delivery to its
principal office in this state, its principal
place of business, the corporate secretary, or
another office or agent of the corporation having
custody of the book in which proceedings of
meetings of shareholders are recorded. No written
consent shall be effective to take the corporate
action referred to therein unless, within sixty
(60) days of the date of the earliest dated
consent is delivered in the manner required by
this section, written consent signed by the number
of holders required to take action is delivered to
the corporation by delivery as set forth in this
section.
(b) Within ten (10) days after
obtaining such authorization by written consent,
notice in accordance with Section 607.0704(3) of
the Act must be given to those shareholders who
have not consented in writing.
4. Board of Directors and Officers.
4.1 Qualifications of Directors. Directors
must be natural persons who are eighteen (18) years of age
or older but need not be residents of the State of Florida
or shareholders of the corporation.
4.2 Number of Directors.
(1) The board of directors shall
consist of not less than one (1) nor more than
nine (9) individuals.
(2) The number of directors may
be increased or decreased from time to time by
amendment to these bylaws.
(3) Directors are elected at the
first annual shareholders' meeting and at each
annual meeting thereafter unless their terms are
staggered under Section 4.4 of these bylaws.
4.3 Terms of Directors Generally.
(a) The terms of the initial
directors of the corporation expire at the first
shareholders' meeting at which directors are elected.
(b) The terms of all other
directors expire at the next annual shareholders'
meeting following their election unless their
terms are staggered under Section 4.4 of these
bylaws.
(c) A decrease in the number of
directors does not shorten an incumbent director's
term.
(d) The term of a director
elected to fill a vacancy expires at the next
shareholders' meeting at which directors are elected.
(e) Despite the expiration of a
director's term, he or she continues to serve
until his or her successor is elected and
qualifies or until there is a decrease in the
number of directors.
4.4 Staggered Terms for Directors. The
directors of any corporation organized under the Act may,
by the articles of incorporation, or by amendment to these
bylaws adopted by a vote of the shareholders, be divided
into one, two or three classes with the number of
directors in each class being as nearly equal as possible;
the term of office of those of the first class to expire
at the annual meeting next ensuing; of the second class
one year thereafter; at the third class two years
thereafter; and at each annual election held after such
classification and election, directors shall be chosen for
a full term, as the case may be, to succeed those whose
terms expire. If the directors have staggered terms, then
any increase or decrease in the number of directors shall
be so apportioned among the classes as to make all classes
as nearly equal in number as possible.
4.5 Vacancy on Board.
(a) Whenever a vacancy occurs on
a board of directors, including a vacancy
resulting from an increase in the number of
directors, it may be filled by the affirmative
vote of a majority of the remaining directors.
(b) A vacancy that will occur at
a specific later date (by reason of resignation
effective at a later date) may be filled before
the vacancy occurs but the new director may not
take office until the vacancy occurs.
4.6 Compensation of Directors. The board of
directors may fix the compensation of directors.
4.7 Meetings.
(a) The board of directors may
hold regular or special meetings in or out of the
State of Florida.
(b) 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 such
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.
(c) Meetings of the board of
directors may be called by the chairman of the
board or by the president.
(d) The board of directors may
permit any or all directors to participate in a
regular or special meeting by, or conduct the
meeting through the use of, any means of
communication by which all directors participating
may simultaneously hear each other during the
meeting. A director participating in a meeting by
this means is deemed to be present in person at
the meeting.
4.8 Action by Directors Without a Meeting.
(a) Action required or permitted
by the Act to be taken at a board of directors'
meeting or committee meeting may be taken without
a meeting if the action is taken by all members of
the board or of the committee. The action must be
evidenced by one or more written consents
describing the action taken and signed by each
director or committee member.
(b) Action taken under this
section is effective when the last director signs
the consent, unless the consent specifies a
different effective date.
(c) A consent signed under this
section has the effect of a meeting vote and may
be described as such in any document.
4.9 Notice of Meetings. Regular and special
meetings of the board of directors may be held without
notice of the date, time, place or purpose of the meeting.
4.10 Waiver of Notice. 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 shall
constitute a waiver of notice of such meeting and a waiver
of any and all objections to the place of the meeting, the
time of the meeting, or the manner in which it has been
called or convened, except when a director states, at the
beginning of the meeting or promptly upon arrival at the
meeting, any objection to the transaction of business
because the meeting is not lawfully called or convened.
4.11 Quorum and Voting.
(a) A quorum of a board of
directors consists of a majority of the number of
directors prescribed by the articles of
incorporation or these bylaws.
(b) If a quorum is present when
a vote is taken, the affirmative vote of a
majority of directors present is the act of the
board of directors.
(c) A director of a 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 deemed to have
assented to the action taken unless:
(1) He objects at the beginning
of the meeting (or promptly upon his or her
arrival) to holding it or transacting specified
business at the meeting; or
(2) He votes against or abstains
from the action taken.
4.12 Committees.
(a) The board of directors, by
resolution adopted by a majority of the full board
of directors, may designate from among its members
an executive committee and one or more other
committees each of which, to the extent provided
in such resolution, shall have and may exercise
all the authority of the board of directors,
except that no such committee shall have the
authority to:
(1) Approve or recommend to
shareholders actions or proposals required by the
Act to be approved by shareholders.
(2) Fill vacancies on the board
of directors or any committee thereof.
(3) Adopt, amend or repeal these
bylaws.
(4) Authorize or approve the
reacquisition of shared unless pursuant to a
general formula or method specified by the board
of directors.
(5) 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.
(b) The sections of these bylaws
which govern meetings, notice and waiver of
notice, and quorum and voting requirements of the
board of directors apply to committees and their
members as well.
(c) Each committee must have two
or more members who serve at the pleasure of the
board of directors. The board, by resolution
adopted in accordance herewith, may designate one
or more directors as alternate members of any such
committee who may act in the place and stead of
any absent member or members at any meeting of
such committee.
(d) Neither the designation of
any such committee, the delegation thereto of
authority, nor action by such committee pursuant
to such authority shall alone constitute
compliance by any member of the board of directors
not a member of the committee in question with his
or her responsibility to act in good faith, in a
manner he or she reasonably believes to be in the
best interests of the corporation, and with such
care as an ordinarily prudent person in a like
position would use under similar circumstances.
4.13 Loans to Officers, Directors and
Employees; Guaranty of Obligations. The Company may lend
money to, guaranty any obligation of, or otherwise assist
any officer, director, or employee of the corporation or
of a subsidiary, whenever, in the judgment of the board of
directors, such loan, guaranty, or other assistance may be
with or without interest and may be unsecured or secured
in such a manner as the board of directors shall approve,
including, without limitation, a pledge of shares of stock
of the corporation. Nothing in this section shall be
deemed to deny, limit, or restrict the powers of guaranty
or warranty of any corporation at common law or under any
statute. Loans, guaranties, or other types of assistance
are subject to section 4.19(.
4.14 Required Officers.
(a) The corporation shall have
such officers as the board of directors may
appoint from time to time.
(b) A duly appointed officer may
appoint one or more assistant officers.
(c) The board of directors shall
delegate to one of the officers responsibility for
preparing minutes of the directors' and
shareholders' meetings and for authenticating
records of the corporation.
(d) The same individual may
simultaneously hold more than one office in the
corporation.
4.15 Duties of Officers. Each officer has the
authority and shall perform the duties set forth in a
resolution or resolutions of the board of directors or by
direction of any officer authorized by the board of
directors to prescribe the duties of other officers.
4.16 Resignation and Removal of Officers.
(a) An officer may resign at any
time by delivering notice to the corporation. A
resignation is effective when the notice is
delivered unless the notice specifies a later
effective date. If a resignation is made
effective at a later date and the corporation
accepts the future effective date, the board of
directors may fill the vacancy before the
effective date if the board of directors provides
that the successor does not take office until the
effective date.
(b) The board of directors may
remove any officer at any time with or without
cause. Any assistant officer, if appointed by
another officer, may likewise be removed by the
board of directors or by the officer which
appointed him in accordance with these bylaws.
4.17 Contract Rights of Officers. The
appointment of an officer does not itself create contract
rights.
4.18 General Standards for Directors.
(a) A director shall discharge
his or her duties as a director, including his or
her duties as a member of a committee:
(1) in good faith;
(2) with the care an ordinarily
prudent person in a like position would exercise
under similar circumstances; and
(3) in a manner he or she
reasonably believes to be in the best interests of
the corporation.
(b) In discharging his or her
duties, a director is entitled to rely on
information, opinions, reports or statements,
including financial statements and other financial
data, if prepared or presented by:
(1) One or more officers or
employees of the corporation whom the director
reasonably believes to be reliable and competent
in the matters presented;
(2) Legal counsel, public
accountants, or other persons as to matters the
director reasonably believes are within the
persons' professional or expert competence; or
(3) A committee of the board of
directors of which he or she is not a member if
the director reasonably believes the committee
merits confidence.
(c) In discharging his or her
duties, a director may consider such factors as
the director deems relevant, including the
long-term prospects and interests of the
corporation and its shareholders, and the social,
economic, legal, or other effects of any action on
the employees, suppliers, customers of the
corporation or its subsidiaries, the communities
and society in which the corporation or its
subsidiaries operate, and the economy of the state
and the nation.
(d) A director is not acting in
good faith if he or she has knowledge concerning
the matter in question that makes reliance
otherwise permitted by subsection 4.18(b)
unwarranted.
(e) A director is not liable for
any action taken as a director, or any failure to
take any action, if he or she performed the duties
of his or her office in compliance with this section.
4.19 Director Conflicts of Interest. No
contract or other transaction between a corporation and
one or more interested directors shall be either void or
voidable because of such relationship or interest, because
such director or directors are present at the meeting of
the board of directors or a committee thereof which
authorizes, approves or ratifies such contract or
transaction, or because his or their votes are counted for
such purpose, if:
(a) The fact of such
relationship or interest is disclosed or known to
the board of directors or committee which
authorizes, approves or ratifies the contract or
transactions by a vote or consent sufficient for
the purpose without counting the votes or consents
of such interested directors;
(b) The fact of such
relationship or interest is disclosed or known to
the shareholders entitled to vote and they
authorize, approve or ratify such contract or
transaction by vote or written consent; or
(c) The contract or transaction
is fair and reasonable as to the corporation at
the time it is authorized by the board, a
committee or the shareholders.
Common or interested directors may be counted in
determining the presence of a quorum at the meeting of the
board of directors or a committee thereof which
authorizes, approves or ratifies such contract or
transaction.
For the purpose of Paragraph 4.19(b)& above, a
conflict of interest transaction is authorized, approved
or ratified if it receives the vote of a majority of the
shares entitled to be counted under this subsection.
Shares owned by or voted under the control of a director
who has a relationship or interest in the conflict of
interest transaction may not be counted in a vote of
shareholders to determine whether to authorize, approve or
ratify a conflict of interest transaction under paragraph
4.19(b)&. The vote of those shares, however, is counted
in determining whether the transaction is approved under
other sections of the Act. A majority of the shares,
whether or not present, that are entitled to be counted in
a vote on the transaction under this subsection
constitutes a quorum for the purpose of taking action
under this section.
4.20 Resignation of Directors.
(a) A director may resign at any
time by delivering written notice to the board of
directors or its chairman or to the corporation.
(b) 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, the
board of directors may fill the pending vacancy
before the effective date if the board of
directors provides that the successor does not
take office until the effective date.
5. Indemnification of Directors, Officers,
Employees and Agents.
5.1 Directors, Officers, Employees and Agents.
(a) The corporation shall have
power to indemnify any person who was or is a
party to any proceeding (other than an action by,
or in the right of, the corporation), by reason of
the fact that he or 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 in connection with such
proceeding, including any appeal thereof, if he or
she acted in good faith and in a manner he or she
reasonably believed to be in, or not apposed to,
the best interests of the corporation, and, with
respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct
was unlawful. The termination of any proceeding
by judgment, order, settlement, or conviction or
upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that
the person did not act in good faith and in a
manner which he or 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 reasonable cause to
believe that his conduct was unlawful.
(b) The corporation shall have
power to 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 or 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 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 reasonably believed to be in, or
not opposed to, the best interests of the
corporation, except that no indemnification shall
be made under this subsection in respect of any
claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and
only to the extent that, the court in which such
proceeding was brought, or any other court of
competent jurisdiction, shall determine upon
application that, despite the adjudication of
liability but in view of all circumstances of the
case, such person is fairly and reasonably
entitled to indemnity for such expenses which such
court shall deem proper.
(c) To the extent that a
director, officer, employee, or agent of the
corporation has been successful on the merits or
otherwise in defense of any proceeding referred to
in subsections 5.1(a), 5.1(b)0 or 5.1(a), 5.1(b)0,
or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses
actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under
subsections 5.1(a), 5.1(b)0 or 5.1(a), 5.1(b)0,
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 or she has met the
applicable standard of conduct set forth in
subsections 5.1(a), 5.1(b)0 or 5.1(a), 5.1(b)0.
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;
(3) By independent legal counsel:
(A) Selected by
the board of directors prescribed in
paragraph 5.1(d)(1)! or the committee
prescribed in paragraph 5.1(d)(2)$; or
(B) If a quorum
of the directors cannot be obtained for
paragraph 5.1(d)(1)! and the committee
cannot be designed under paragraph
5.1(d)(2)$, selected by a 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.
(e) Evaluation of the
reasonableness of expenses and authorization of
indemnification shall be made in the same manner
as the determination that indemnification is
permissible. However, if the determination of
permissibility is made by independent legal
counsel, persons specified by paragraph 5.1(d)(3)(
shall evaluate the reasonableness of expenses and
may authorize indemnification.
(f) Expenses incurred by an
officer or director in defending a civil or
criminal proceeding may be paid by the corporation
in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such
amount if he is ultimately found not to be
entitled to indemnification by the corporation
pursuant to this section. Expenses incurred by
other employees and agents may be paid in advance
upon such terms or conditions that the board of
directors deems appropriate.
(g) The indemnification and
advancement of expenses provided pursuant to this
section are not 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 bylaw,
agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his
or her official capacity and as to action in
another capacity while holding such office.
However, indemnification or advancement of
expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a
judgment or other final adjudication establishes
that his or her actions, or omissions to act, were
material to the cause of action so adjudicated and
constitute:
(1) A violation of the criminal
law, unless the director, officer, employee, or
agent had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to
believe his or her conduct was unlawful;
(2) A transaction from which the
director, officer, employee, or agent derived an
improper personal benefit;
(3) In the case of a director, a
circumstance under which the liability provisions
of Section 607.0834 under the Act are applicable; or
(4) Willful misconduct or a
conscious disregard for the best interests of the
corporation in a proceeding by or in the right of
the corporation to procure a judgment in its favor
or in a proceeding by or in the right of a
shareholder.
(h) Indemnification and
advancement of expenses as provided in this
section shall continue as, unless otherwise
provided when authorized or ratified, 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.
(i) Notwithstanding the failure
of the corporation to provide indemnification, and
despite any contrary determination of the board or
of the shareholders in the specific case, a
director, officer, employee, or agent of the
corporation who is or was a party to a proceeding
may apply for indemnification or advancement of
expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another
court of competent jurisdiction. On receipt of an
application, the court, after giving any notice
that it considers necessary, may order
indemnification and advancement of expenses,
including expenses incurred in seeking
court-ordered indemnification or advancement of
expenses, if it determines that:
(1) The director, officer,
employee, or agent if entitled to mandatory
indemnification under subsection 5.1(c)", in which
case the court shall also order the corporation to
pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or
advancement of expenses;
(2) The director, officer,
employee or agent is entitled to indemnification
or advancement of expenses, or both, by virtue of
the exercise by the corporation of its power
pursuant to subsection 5.1(g)+; or
(3) The director, officer,
employee, or agent is fairly and reasonably
entitled to indemnification or advancement of
expenses, or both, in view of all the relevant
circumstances, regardless of whether such person
met the standard of conduct set forth in
subsection 5.1(a), 5.1(b)0, 5.1(a), 5.1(b)0 or
5.1(g)+.
(j) For purposes of this
section, the term "corporation: includes, in
addition to the resulting corporation, any
constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a
director, officer, employee, or agent of a
constituent corporation, or is or was serving at
the request of a constituent corporation as a
director, officer, employee, or agent of another
corporation, partnership, joint venture, trust or
other enterprise, is in the same position under
this section with respect to the resulting or
surviving corporation as he or she would have with
respect to such constituent corporation if its
separate existence had continued.
(k) For purposes of this section:
(1) The term "other enterprises"
includes employee benefits plans;
(2) The term "expenses" includes
counsel fees, including those for appeal;
(3) The term "liability"
includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit
plan), and expenses actually and reasonably
incurred with respect to a proceeding;
(4) The term "proceeding"
includes any threatened, pending, or completed
action, suit or other type of proceeding, whether
civil, criminal, administrative, or investigative
and whether formal or informal;
(5) The term "agent" includes a
volunteer;
(6) The term "serving at the
request of the corporation" includes any service
as a director, officer, employee, or agent of the
corporation that imposes duties on such persons,
including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(7) The term "not opposed to the
best interest of the corporation" describes the
actions of a person who acts in good faith and in
a manner he or she reasonably believes to be in
the best interests of the participants and
beneficiaries of an employee benefit plan.
(l) The corporation shall have
power to 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 or her and incurred by him or her in
any such capacity or arising out of his or her
status as such, whether or not the corporation
would have the power to indemnify him against such
liability under the provisions of this section.
6. Office and Agent.
6.1 Registered Office and Registered Agent.
(a) The corporation shall have
and continuously maintain in the State of Florida:
(1) A registered office which
may be the same as its place of business;
(2) A registered agent, who, may
be either:
(A) An
individual who resides in the State of
Florida whose business office is
identical with such registered office; or
(B) Another
corporation or not-for-profit corporation
as defined in Chapter 617 of the Act,
authorized to transact business or
conduct its affairs in the State of
Florida, having a business office
identical with the registered office.
6.2 Change of Registered Office or Registered
Agent; Resignation of Registered Agent.
(a) The corporation may change
its registered office or its registered agent upon
filing with the Department of State of the State
of Florida a statement of change setting forth:
(1) The name of the corporation;
(2) The street address of its
current registered office;
(3) If the current registered
office is to be changes, the street address of the
new registered office;
(4) The name of its current
registered agent;
(5) If its current registered
agent is to be changes, the name of the new
registered agent and the new agent's written
consent (either on the statement or attached to
it) to the appointment;
(6) That the street address of
its registered office and the street address of
the business office of its registered agent, as
changed, will be identical;
(7) That such change was
authorized by resolution duly adopted by its board
of directors or by an officer of the corporation
so authorized by the board of directors.
7. Shares, Options, Dividends and
Distributions.
7.1 Authorized Shares.
(a) The articles of
incorporation prescribe the classes of shares and
the number of shares of each class that the
corporation is authorized to issue, as well as a
distinguishing designation for each class, and
prior to the issuance of shares of a class the
preferences, limitations, and relative rights of
that class must be described in the articles of
incorporation.
(b) The articles of
incorporation must authorize:
(1) One or more classes of
shares that together have unlimited voting rights,
and
(2) One or more classes of
shares (which may be the same class or classes as
those with voting rights) that together are
entitled to receive the net assets of the
corporation upon dissolution.
(c) The articles of
incorporation may authorize one or more classes of
shares that have special, conditional, or limited
voting rights, or no rights, or no right to vote,
except to the extent prohibited by the Act;
(1) Are redeemable or
convertible as specified in the articles of
incorporation;
(2) Entitle the holders to
distributions calculated in any manner, including
dividends that may be cumulative, non-cumulative,
or partially cumulative;
(3) Have preference over any
class of shares with respect to distributions,
including dividends and distributions upon the
dissolution of the corporation.
(d) Shares which are entitled to
preference in the distribution of dividends or
assets shall not be designated as common shares.
Shares which are not entitled to preference in the
distribution of dividends or assets shall be
common shares and shall not be designated as
preferred shares.
7.2 Terms of Class or Series Determined by
Board of Directors.
(a) If the articles of
incorporation so provide, the board of directors
may determine, in whole or in part, the
preferences, limitations, and relative rights
(within the limits set forth in Section 7.1 of:
(1) Any class of shares before
the issuance of any shares of that class, or
(2) One or more series within a
class before the issuance of any shares of that
series.
(b) Each series of a class must
be given a distinguishing designation.
(c) All shares of a series must
have preferences, limitations, and relative rights
identical with those of other shares of the same
series and, except to the extent otherwise
provided in the description of the series, of
those of other series of the same class.
(d) Before issuing any shares of
a class or series created under this section, the
corporation must deliver to the Department of
State of the State of Florida for filing articles
of amendment, which are effective without
shareholder action, in accordance with Section
607.0602 of the Act.
7.3 Issued and Outstanding Shares.
(a) A corporation may issue the
number of shares of each class or series
authorized by the articles of incorporation.
Shares that are issued are outstanding shares
until they are reacquired, redeemed, converted, or
cancelled.
(b) The reacquisition,
redemption, or conversion of outstanding shares is
subject to the limitations of subsection 7.3(c)
and to Section 607.06401 of the act.
(c) At all times that shares of
the corporation are outstanding, one or more
shares that together have unlimited voting rights
and one or more shares that together are entitled
to receive the net assets of the corporation upon
dissolution must be outstanding.
7.4 Issuance of Shares.
(a) The board of directors may
authorize shares to be issued for consideration
consisting of any tangible property or benefit to
the corporation, including cash, promissory notes,
services performed, promises to perform services
evidenced by a written contract, or other
securities of the corporation.
(b) Before the corporation
issues shares, the board of directors must
determine that the consideration received or to be
received for shares to be issued is adequate.
That determination by the board of directors is
conclusive insofar as the adequacy of
consideration for the issuance of shares relates
to whether the shares are validly issued, fully
paid, and non-assessable. When it cannot be
determined that outstanding shares are fully paid
and non-assessable, there shall be a conclusive
presumption that such shares are fully paid and
non-assessable if the board of directors makes a
good faith determination that there is no
substantial evidence that the full consideration
for such shares has not been paid.
(c) When the corporation
receives the consideration for which the board of
directors authorized the issuance of shares, the
shares issued therefor are fully paid and
non-assessable. Consideration in the form of a
promise to pay money or a promise to perform
services is received by the corporation at the
time of the making of the promise, unless the
agreement specifically provides otherwise.
(d) The corporation may place in
escrow shares issued for a contract for future
services or benefits or a promissory note, or make
other arrangements to restrict the transfer of the
shares, and may credit distributions in respect of
the shares against their purchase price, until the
services are performed, the note is paid, or the
benefits received. If the services are not
performed, the shares escrowed or restricted and
the distributions credited may be cancelled in
whole or in part.
7.5 Form and Content of Certificates.
(a) Shares may but need not be
represented by certificates. Unless the Act or
another statute expressly provides otherwise, the
rights and obligations of shareholders are
identical whether or not their shares are
represented by certificates.
(b) At a minimum, each share
certificate must state on its face:
(1) The name of the issuing
corporation and that the corporation is organized
under the laws of the State of Florida;
(2) The name of the person to
whom issued; and
(3) The number and class of
shares and the designation of the series, if any,
the certificate represents.
(c) If the shares being issued
are of different classes of shares or different
series within a class, the designations, relative
rights, preferences, and limitations applicable to
each class and the variations in rights,
preferences, and limitations determined for each
series (and the authority of the board of
directors to determine variations for future
series) must be summarized on the front or back of
each certificate. Alternatively, each certificate
may state conspicuously on its front or back that
the corporation will furnish the shareholder a
full statement of this information on request and
without charge.
(d) Each share certificate:
(1) Must be signed (either
manually or in facsimile) by an officer or
officers designated by the board of directors, and
(2) May bear the corporate seal
or its facsimile.
(e) If the person who signed
(either manually or in facsimile) a share
certificate no longer holds office when the
certificate is issued, the certificate is
nevertheless valid.
(f) Nothing in this section may
be construed to invalidate any share certificate
validly issued and outstanding under the Act on
July 1, 1990.
7.6 Shares Without Certificates.
(a) The board of directors of
the corporation may authorize the issue of some or
all of the shares of any or all of its classes or
series without certificates. The authorization
does not affect shares already represented by
certificates until they are surrendered to the
corporation.
(b) Within a reasonable time
after the issue or transfer of shares without
certificates, the corporation shall send the
shareholder a written statement of the information
required on certificates by the Act.
7.7 Restriction on Transfer of Shares and
Other Securities.
(a) The articles of
incorporation, these bylaws, an agreement among
shareholders, or an agreement between shareholders
and the corporation may impose restrictions on the
transfer or registration of transfer of shares of
the corporation. A restriction does not affect
shares issued before the restriction was adopted
unless the holders of such shares are parties to
the restriction agreement or voted in favor of the
restriction.
(b) A restriction on the
transfer or registration of transfer is valid and
enforceable against the holder or a transferee of
the holder if the restriction is authorized by
this section, and effected in compliance with the
provisions of the Act, including having a proper
purpose as referred to in the Act.
7.8 Shareholder's Pre-emptive Rights. The
shareholders of the corporation do not have a pre-emptive
right to acquire the corporation's unissued shares.
7.9 Corporation's Acquisition of its Own
Shares.
(a) The corporation may acquire
its own shares, and, unless otherwise provided in
the articles of incorporation or except as
provided in subsection 7.9(d)%, shares so acquired
constitute authorized but unissued shares of the
same class but undesignated as to series.
(b) If the articles of
incorporation prohibit the reissue of acquired
shares, the number of authorized shares is reduced
by the number of shares acquired, effective upon
amendment of the articles of incorporation.
(c) Articles of amendment may be
adopted by the board of directors without
shareholder action, shall be delivered to the
Department of State of the State of Florida for
filing, and shall set forth the information
required by Section 607.0631 of the Act.
(d) Shares of the corporation in
existence on June 30, 1990, which are treasury
shares under Section 607.004(18), Florida Statutes
(1987), shall be issued, but not outstanding,
until cancelled or disposed of by the corporation.
7.10 Share Options.
(a) Unless the articles of
incorporation provide otherwise, the corporation
may issue rights, options, or warrants for the
purchase of shares of the corporation. The board
of directors shall determine the terms upon which
the rights, options, or warrants are issued, their
form and content, and the consideration for which
the shares are to be issued.
(b) The terms and conditions of
stock rights and options which are created and
issued by the corporation, or its successor, and
which entitle the holders thereof to purchase from
the corporation shares of any class of classes,
whether authorized by unissued shares, treasury
shares, or shares to be purchased or acquired by
the corporation, may include, without limitation,
restrictions, or conditions that preclude or limit
the exercise, transfer, receipt, or holding of
such rights or options by any person or persons,
including any person or persons owning or offering
to acquire a specified number or percentage of the
outstanding common shares or other securities of
the corporation, or any transferee or transferees
of any such person or persons, or that invalidate
or void such rights or options held by any such
person or persons or any such transferee or
transferees.
7.11 Terms and Conditions of Stock Rights and
Options. The terms and conditions of the stock rights and
options which are created and issued by the corporation
[or its successors], and which entitle the holders thereof
to purchase from the corporation shares of any class or
classes, whether authorized but unissued shares, treasury
shares, or shares to be purchased or acquired by the
corporation, may include, without limitation, restrictions
or conditions that preclude or limit the exercise,
transfer, receipt or holding of such rights or options by
any person or persons, including any person or persons
owning or offering to acquire a specified number or
percentage of the outstanding common shares or other
securities of the corporation, or any transferee or
transferees of any such person or persons, or that
invalidate or void such rights or options held by any such
person or persons or any such transferee or transferees.
7.12 Share Dividends.
(a) Shares may be issued pro
rata and without consideration to the
corporation's shareholders or to the shareholders
of one or more or series. An issuance of shares
under this subsection is a share dividend.
(b) Shares of one class or
series may not be issued as a share dividend in
respect of shares of another class or series unless:
(1) The articles of
incorporation so authorize;
(2) A majority of the votes
entitled to be case by the class or series to be
issued approves the issue; or
(3) There are no outstanding
shares of the class or series to be issued.
(c) If the board of directors
does not fix the record date for determining
shareholders entitled to a share dividend, it is
the date the board of directors authorizes the
share dividend.
7.13 Distributions to Shareholders.
(a) The board of directors may
authorize and the corporation may make
distributions to its shareholders subject to
restriction by the articles of incorporation and
the limitations in subsection 7.13(c).
(b) If the board of directors
does not fix the record date for determining
shareholders entitled to a distribution (other
than one involving a purchase, redemption, or
other acquisition of the corporation's shares), it
is the date the board of directors authorizes the
distribution.
(c) No distribution may be made
if, after giving it effect:
(1) The corporation would not be
able to pay its debts as they become due in the
usual course of business; or
(2) The corporation's total
assets would be less than the sum of its total
liabilities plus (unless the articles of
incorporation permit otherwise) the amount that
would be needed, if the corporation were to be
dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution
of shareholders whose preferential rights are
superior to those receiving the distribution.
(d) The board of directors may
base a determination that a distribution is not
prohibited under subsection 7.13(c) either on
financial statements prepared on the basis of
accounting practices and principles that are
reasonable in the circumstances or on a fair
valuation or other method that is reasonable in
the circumstances. In the case of any
distribution based upon such a valuation, each
such distribution shall be identified as a
distribution based upon a current valuation of
assets, and the amount per share paid on the basis
of such valuation shall be disclosed to the
shareholders concurrent with their receipt of the
distribution.
(e) Except as provided in
subsection 7.13(g),, the effect of a distribution
under subsection 7.13(c) is measured:
(1) In the case of distribution
by purchase, redemption, or other acquisition of
the corporation's shares, as of the earlier of:
(A) The date
money or other property is transferred or
debt incurred by the corporation; or
(B) The date
the shareholder ceases to be a
shareholder with respect to the acquired
shares;
(2) In the case of any other
distribution of indebtedness, as of the date the
indebtedness is distributed;
(3) In all other cases, as of:
(A) The date
the distribution is authorized if the
payment occurs within one hundred twenty
(120) days after the date of
authorization; or
(B) The date
the payment is made if it occurs more
than one hundred twenty (120) days after
the date of authorization.
(f) A corporation's indebtedness
to a shareholder incurred by reason of a
distribution made in accordance with this section
is at parity with the corporation's indebtedness
to its general, unsecured creditors except to the
extent subordinated by agreement.
(g) Indebtedness of the
corporation, including indebtedness issued as a
distribution, is not considered a liability for
purposes of determinations under subsection
7.13(c) if its terms provide that payment of
principal and interest are made only if and to the
extent that payment of a distribution to
shareholders could then be made under this
section. If the indebtedness is issued as a
distribution, each payment of principal or
interest is treated as a distribution, the effect
of which is measured on the date the payment is
actually made.
8. Amendment of Articles and Bylaws.
8.1 Authority to Amend the Articles of
Incorporation.
(a) The corporation may amend
its articles of incorporation at any time to add
or change a provision that is required or
permitted in the articles of incorporation or to
delete a provision not required in the articles of
incorporation. Whether a provision is required or
permitted in the articles of incorporation is
determined as of the effective date of the amendment.
(b) A shareholder of the
corporation does not have a vested property right
resulting from any provision in the articles of
incorporation, including provisions relating to
management, control, capital structure, dividend
entitlement, or purpose or duration of the
corporation.
8.2 Amendment by Board of Directors. The
corporation's board of directors may adopt one or more
amendments to the corporation's articles of incorporation
without shareholder action:
(a) To extend the duration of
the corporation if it was incorporated at a time
when limited duration was required by law;
(b) To delete names and
addresses of initial directors;
(c) To delete the name and
address of the initial registered agent or
registered office, if a statement of change is on
file with the Department of State of the State of
Florida;
(d) To delete any other
information contained in the articles of
incorporation that is solely of historical interest;
(e) To change each issued and
unissued authorized share of an outstanding class
into a greater number of whole shares if the
corporation has only shares of that class
outstanding;
(f) To delete the authorization
for a class or series of shares authorized
pursuant to Section 607.0602 of the Act, if no
shares of such class or series have been issued;
(g) To change the corporate name
by substituting the word "corporation,"
"incorporated," or "company," or the abbreviation
"corp.," "Inc.," or "Co.," for a similar word or
abbreviation in the name, or by adding, deleting,
or changing a geographical attribution for the
name; or
(h) To make any other change
expressly permitted by the Act to be made without
shareholder action.
8.3 Amendment of Bylaws by Board of
Directors. The corporation's board of directors may amend
or repeal the corporation's bylaws unless the Act reserves
the power to amend a particular bylaw provision
exclusively to the shareholders.
8.4 Bylaw Increasing Quorum or Voting
Requirements for Directors.
(a) A bylaw that fixes a greater
quorum or voting requirement for the board of
directors may be amended or repealed:
(1) If originally adopted by the
shareholders, only by the shareholders;
(2) If originally adopted by the
board of directors, either by the shareholders or
by the board of directors.
(b) A bylaw adopted or amended
by the shareholders that fixes a greater quorum or
voting requirement for the board of directors may
provide that it may be amended or repealed only by
a specific vote of either the shareholders or the
board of directors.
(c) Action by the board of
directors under paragraph 8.4(a)(2)! to adopt or
amend a bylaw that changes the quorum or voting
requirement for the board of directors must meet
the same quorum requirement and be adopted by the
same vote required to take action under the quorum
and voting requirement then in effect or proposed
to be adopted, whichever is greater.
9. Records and Reports.
9.1 Corporate Records.
(a) The corporation shall keep
as permanent records minutes of all meetings of
its shareholders and board of directors, a record
of all actions taken by the shareholders or board
of directors without a meeting, and a record of
all actions taken by a committee of the board of
directors in place of the board of directors on
behalf of the corporation.
(b) The corporation shall
maintain accurate accounting records.
(c) The corporation or its agent
shall maintain a record of its shareholders in a
form that permits preparation of a list of the
names and addresses of all shareholders in
alphabetical order by class of shares showing the
number and series of shares held by each.
(d) The corporation shall
maintain its records in written form or in another
form capable of conversion into written form
within a reasonable time.
(e) The corporation shall keep a
copy of the following records:
(1) Its articles or restated
articles of incorporation and all amendments to
them currently in effect;
(2) Its bylaws or restated
bylaws and all amendments to them currently in
effect;
(3) Resolutions adopted by the
board of directors creating one or more classes or
series of shares and finding their relative
rights, preferences, and limitations, if shares
issued pursuant to those resolutions are outstanding;
(4) The minutes of all
shareholders' meetings and records of all action
taken by shareholders without a meeting for the
past three (3) years;
(5) Written communications to
all shareholders generally or all shareholders of
a class or series within the past three (3) years,
including the financial statements furnished for
the past three (3) years;
(6) A list of the names and
business street addresses of its current directors
and officers; and
(7) Its most recent annual
report delivered to the Department of State of the
State of Florida.
9.2 Financial Statements for Shareholders
(a) Unless modified by
resolution of the shareholders within one hundred
twenty (120) days of the close of each fiscal
year, the corporation shall furnish its
shareholders annual financial statements which may
be consolidated or combined statements of the
corporation and one or more of its subsidiaries,
as appropriate, that include a balance sheet as of
the end of the fiscal year, an income statement
for that year, and a statement of cash flows for
that year. If financial statements are prepared
for the corporation on the basis of
generally-accepted accounting principles, the
annual financial statements must also be prepared
on that basis.
(b) If the annual financial
statements are reported upon by a public
accountant, his report must accompany them. If
not, the statements must be accompanied by a
statement of the president or the person
responsible for the corporation's accounting records:
(1) Stating his reasonable
belief whether the statements were prepared on the
basis of generally-accepted accounting principles
and, if not, describing the basis of preparation; and
(2) Describing any respects in
which the statements were not prepared on a basis
of accounting consistent with the statements
prepared for the preceding year.
(c) The corporation shall mail
the annual financial statements to each
shareholder within one hundred twenty (120) days
after the close of each fiscal year or within such
additional time thereafter as is reasonably
necessary to enable the corporation to prepare its
financial statements, if for reasons beyond the
corporation's control, it is unable to prepare its
financial statements within the prescribed period.
Thereafter, on written request from a shareholder
who was not mailed the statements, the corporation
shall mail him the latest annual financial
statements.
9.3 Other Reports to Shareholders.
(a) If the corporation
indemnifies or advances expenses to any director,
officer, employee or agent otherwise than by court
order or action by the shareholders or by an
insurance carrier pursuant to insurance maintained
by the corporation, the corporation shall report
the indemnification or advance in writing to the
shareholders with or before the notice of the next
shareholders' meeting, or prior to such meeting if
the indemnification or advance occurs after the
giving of such notice but prior to the time such
meeting is held, which report shall include a
statement specifying the persons paid, the amounts
paid, and the nature and status at the time of
such payment of the litigation or threatened
litigation.
(b) If the corporation issues or
authorizes the issuance of shares for promises to
render services in the future, the corporation
shall report in writing to the shareholders the
number of shares authorized or issued, and the
consideration received by the corporation, with or
before the notice of the next shareholders' meeting.
9.4 Annual Report for Department of State.
(a) The corporation shall
deliver to the Department of State of the State of
Florida for filing a sworn annual report on such
forms as the Department of State of the State of
Florida prescribes that sets forth the information
prescribed by Section 607.1622 of the Act.
(b) Proof to the satisfaction of
the Department of Sate of the State of Florida on
or before July 1 of each calendar year that such
report was deposited in the United States mail in
a sealed envelope, properly addressed with postage
prepaid, shall be deemed in compliance with this
requirement.
(c) Each report shall be
executed by the corporation by an officer or
director of, if the corporation is in the hands of
a receiver or trustee, shall be executed on behalf
of the corporation by such receiver or trustee,
and the signing thereof shall have the same legal
effect as if made under oath, without the
necessity of appending such oath thereto.
(d) Information in the annual
report must be current as of the date the annual
report is executed on behalf of the corporation.
(e) Any corporation failing to
file an annual report which complies with the
requirements of this section shall not be
permitted to maintain or defend any action in any
court of this state until such report is filed and
all fees and taxes due under the Act are paid and
shall be subject to dissolution or cancellation of
its certificate of authority to do business as
provided in the Act.
10. Miscellaneous.
10.1 Application of Florida Law. Whenever any
provision of these bylaws is inconsistent with any
provision of the Florida Business Corporation Act,
Statutes 607, as they may be amended from time to time,
then in such instance Florida law shall prevail.
10.2 Conflicts with Articles of Incorporation.
In the event that any provision contained in these bylaws
conflicts with any provision of the corporation's articles
of incorporation, as amended from time to time, the
provisions of the articles of incorporation shall prevail
and be given full force and effect, to the full extent
permissible under the Act.
10.3 Definition of the "Act". All references
contained herein to the "Act" or to sections of the "Act"
shall be deemed to be in reference to the Florida Business
Corporation Act.
10.4 Fiscal Year. The fiscal year of the
corporation shall be determined by resolution of the board
of directors.
