EXHIBIT 3.H
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BY-LAWS
OF
TECH DATA CORPORATION
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BY-LAWS
OF
TECH DATA CORPORATION
TABLE OF CONTENTS
Title Page
ARTICLE I....................................................................1
OFFICES......................................................................1
Section A. PRINCIPAL OFFICE......................................1
Section B. OTHER OFFICES.........................................1
ARTICLE II...................................................................1
STOCKHOLDERS.................................................................1
Section A. ANNUAL MEETING........................................1
Section B. SPECIAL MEETINGS......................................1
Section C. PLACE OF MEETING......................................1
Section D. NOTICE OF MEETING.....................................1
Section E. NOTICE OF ADJOURNED MEETING...........................2
Section F. WAIVER OF CALL AND NOTICE OF MEETING..................2
Section G. QUORUM AND VOTING REQUIREMENTS FOR VOTING GROUPS......2
Section H. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING.............3
Section I. ACTION BY SINGLE AND MULTIPLE VOTING GROUPS...........3
Section J. VOTING FOR DIRECTORS..................................3
Section K. VOTING LISTS..........................................3
Section L. VOTING OF SHARES......................................3
Section M. PROXIES...............................................3
Section N. INFORMAL ACTION BY STOCKHOLDERS.......................4
Section O. PRESIDING OFFICER AND SECRETARY.......................4
Section P. INSPECTORS............................................4
ARTICLE III..................................................................5
BOARD OF DIRECTORS...........................................................5
Section A. GENERAL POWERS........................................5
Section B. NUMBER, TENURE AND QUALIFICATIONS.....................5
Section C. CLASSIFICATION OF BOARD OF DIRECTORS..................5
Section D. ANNUAL MEETING........................................5
Section E. REGULAR MEETINGS......................................5
Section F. SPECIAL MEETINGS......................................5
Section G. NOTICE................................................6
Section H. QUORUM................................................6
Section I. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING.............6
Section J. MANNER OF ACTING......................................6
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Section K. RESIGNATION...........................................6
Section L. REMOVAL...............................................6
Section M. VACANCIES.............................................6
Section N. COMPENSATION..........................................7
Section O. PRESUMPTION OF ASSENT.................................7
Section P. INFORMAL ACTION BY BOARD..............................7
Section Q. MEETING BY TELEPHONE, ETC.............................7
ARTICLE IV...................................................................7
OFFICERS.....................................................................7
Section A. NUMBER................................................7
Section B. APPOINTMENT AND TERM OF OFFICE........................8
Section C. RESIGNATION...........................................8
Section D. REMOVAL...............................................8
Section E. VACANCIES.............................................8
Section F. DUTIES OF THE CHAIRMAN OF THE BOARD...................8
Section G. DUTIES OF THE CHIEF EXECUTIVE OFFICER.................8
Section H. DUTIES OF THE PRESIDENT...............................9
Section I. DUTIES OF EXECUTIVE VICE PRESIDENTS...................9
Section J. DUTIES OF SENIOR VICE PRESIDENTS......................9
Section K. DUTIES OF VICE PRESIDENTS.............................9
Section L. DUTIES OF THE SECRETARY...............................9
Section M. DUTIES OF THE CHIEF FINANCIAL OFFICER................10
Section N. DUTIES OF TREASURER..................................10
Section O. DUTIES OF ASSISTANT SECRETARIES AND ASSISTANT
TREASURERS...........................................10
Section P. COMPENSATION.........................................10
Section Q. DELEGATION OF DUTIES.................................10
Section R. DISASTER EMERGENCY POWERS OF ACTING OFFICERS.........11
ARTICLE V...................................................................11
EXECUTIVE AND OTHER COMMITTEES..............................................11
Section A. CREATION OF COMMITTEES................................11
Section B. EXECUTIVE COMMITTEE...................................11
Section C. COMPENSATION COMMITTEE................................12
Section D. AUDIT COMMITTEE.......................................12
Section E. OTHER COMMITTEES......................................13
Section F. REMOVAL OR DISSOLUTION................................13
Section G. VACANCIES ON COMMITTEES...............................13
Section H. MEETINGS OF COMMITTEES................................13
Section I. ABSENCE OF COMMITTEE MEMBERS..........................13
Section J. QUORUM OF COMMITTEES..................................13
Section K. MANNER OF ACTING OF COMMITTEES........................13
Section L. MINUTES OF COMMITTEES.................................14
Section M. COMPENSATION..........................................14
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Section N. INFORMAL ACTION.......................................14
ARTICLE VI..................................................................14
INDEMNIFICATION OF DIRECTORS AND OFFICERS...................................14
Section A. GENERAL...............................................14
Section B. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.........14
Section C. OBLIGATION TO INDEMNIFY...............................15
Section D. DETERMINATION THAT INDEMNIFICATION IS PROPER..........15
Section E. EVALUATION AND AUTHORIZATION..........................15
Section F. PREPAYMENT OF EXPENSES................................16
Section G. NONEXCLUSIVITY AND LIMITATIONS........................16
Section H. CONTINUATION OF INDEMNIFICATION RIGHT.................16
Section I. INSURANCE.............................................17
ARTICLE VII.................................................................17
INTERESTED PARTIES..........................................................17
Section A. GENERAL...............................................17
Section B. APPROVAL BY BOARD OF DIRECTORS OR COMMITTEE...........17
Section C. APPROVAL BY STOCKHOLDERS..............................18
ARTICLE VIII................................................................18
CERTIFICATES OF STOCK.......................................................18
Section A. CERTIFICATES FOR SHARES...............................18
Section B. SIGNATURES OF PAST OFFICERS...........................18
Section C. TRANSFER AGENTS AND REGISTRARS........................18
Section D. TRANSFER OF SHARES....................................18
Section E. LOST CERTIFICATES.....................................19
ARTICLE IX..................................................................19
RECORD DATE.................................................................19
Section A. RECORD DATE FOR STOCKHOLDER ACTIONS...................19
Section B. RECORD DATE FOR DIVIDEND AND OTHER DISTRIBUTIONS......20
ARTICLE X...................................................................20
DIVIDENDS...................................................................20
ARTICLE XI..................................................................20
FISCAL YEAR.................................................................20
ARTICLE XII.................................................................20
SEAL........................................................................20
ARTICLE XIII................................................................20
STOCK IN OTHER CORPORATIONS.................................................20
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ARTICLE XIV.................................................................21
AMENDMENTS..................................................................21
ARTICLE XV..................................................................21
EMERGENCY BY-LAWS...........................................................21
Section A. SCOPE OF EMERGENCY BY-LAWS.......................21
Section B. CALL AND NOTICE OF MEETING.......................21
Section C. QUORUM AND VOTING................................21
Section D. APPOINTMENT OF TEMPORARY DIRECTORS...............21
Section E. MODIFICATION OF LINES OF SUCCESSION..............22
Section F. CHANGE OF PRINCIPAL OFFICE.......................22
Section G. LIMITATION OF LIABILITY..........................22
Section H. REPEAL AND CHANGE................................22
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BY-LAWS
OF
TECH DATA CORPORATION
ARTICLE I.
OFFICES
Section A. PRINCIPAL OFFICE. The principal office of the corporation
shall be in the County of Pinellas, State of Florida.
Section B. OTHER OFFICES. The corporation may also have offices at such
other places both within and without the State of Florida as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II.
STOCKHOLDERS
Section A. ANNUAL MEETING. A meeting of the stockholders shall be held
annually, within five months of the end of each fiscal year of the corporation,
for the purpose of electing directors and for the transaction of such other
proper business as may come before the meeting, the exact date to be established
by the Board of Directors from time to time.
Section B. SPECIAL MEETINGS. Special meetings of the stockholders may
be called, for any purpose or purposes, by the Chief Executive Officer or the
Board of Directors and shall be called by the Chief Executive Officer or the
Secretary if the holders of not less than ten percent (10%) or more of all the
votes entitled to be cast on any issue proposed to be considered at such special
meeting sign, date and deliver to the corporation's Secretary one or more
written demands for a special meeting, describing the purpose(s) for which it is
to be held. Notice and call of any such special meeting shall state the purpose
or purposes of the proposed meeting, and business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice thereof.
Section C. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without the State of Florida, as the place of meeting
for any annual or special meeting of the stockholders. A waiver of notice signed
by all stockholders entitled to vote at a meeting may designate any place,
either within or without the State of Florida, as the place for the holding of
such meeting. If no designation is made, the place of meeting shall be the
principal office of the corporation in the State of Florida.
Section D. NOTICE OF MEETING. Written notice stating the place, day and
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hour of an annual or special meeting and the purpose or purposes for which it is
called shall be delivered not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such
meeting, except that no notice of a meeting need be given to any stockholders
for which notice is not required to be given under applicable law. Notice may be
delivered personally, via United States mail, telegraph, teletype, facsimile or
other electronic transmission, or by private mail carriers handling nationwide
mail services, by or at the direction of the Chief Executive Officer, the
Secretary, the Board of Directors, or the person(s) calling the meeting. If the
notice is mailed at least thirty (30) days before the date of the meeting, it
may be done by a class of United States mail other than first class. If mailed
such notice shall be deemed to be delivered when deposited in the United States
mail, addressed to the stockholder at the stockholder's address as it appears on
the stock transfer books of the corporation, with postage thereon prepaid.
Section E. NOTICE OF ADJOURNED MEETING. If an annual or special
stockholders' 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 an 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, however, a new record date for the adjourned
meeting is or must be fixed under law, notice of the adjourned meeting must be
given to persons who are stockholders as of the new record date and who are
otherwise entitled to notice of such meeting.
Section F. WAIVER OF CALL AND NOTICE OF MEETING. Call and notice of any
stockholders' meeting may be waived by any stockholder before or after the date
and time stated in the notice. Such waiver must be in writing signed by the
stockholder and delivered to the corporation. Neither the business to be
transacted at nor the purpose of any special or annual meeting need be specified
in such waiver. A stockholder's attendance at a meeting (a) waives such
stockholder's ability to object to lack of notice or defective notice of the
meeting, unless the stockholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and (b) waives such
stockholder's ability to object to consideration of a particular matter at the
meeting that is not within the purpose or purposes described in the meeting
notice, unless the stockholder objects to considering the matter when it is
presented.
Section G. QUORUM AND VOTING REQUIREMENTS FOR VOTING GROUPS. 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.
Except as otherwise provided in the Articles of Incorporation or by law, 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. 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 an adjourned meeting. At
any meeting at which a quorum is present, action on any matter other than the
election of directors by a voting group shall be approved if
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the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless a greater number of affirmative votes is required by
the Articles of Incorporation or by law.
Section H. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING. The holders of a
majority of the shares represented, and who would be entitled to vote at a
meeting if a quorum were present, where a quorum is not present, may adjourn
such meeting from time to time. At such adjourned meeting at which a quorum
shall be present or represented or deemed to be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed.
Section I. ACTION BY SINGLE AND MULTIPLE VOTING GROUPS. If the Articles
of Incorporation or law provides for voting by a single group on a matter,
action on that matter is taken when voted upon by that voting group as provided
in Section G above. If the Articles of Incorporation or law 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 G above. Action may be taken by one voting group on a matter even though
no action is taken by another group entitled to vote on the matter.
Section J. VOTING FOR DIRECTORS. Unless otherwise provided in the
Articles of Incorporation, directors shall be elected by a plurality of the
votes cast by the shares entitled to vote at a meeting at which a quorum is
present. Each stockholder entitled to vote at an election of directors shall
have the right to vote the number of shares owned by the stockholder for as many
persons as there are directors to be elected and for whose election such
stockholder has the right to vote.
Section K. VOTING LISTS. At least ten (10) days prior to each meeting
of stockholders, the officer or agent having charge of the stock transfer books
for shares of the corporation shall make a complete list of the stockholders
entitled to vote at such meeting, or any adjournment thereof, with the address
and the number, class and series (if any) of shares held by each, which list
shall be subject to inspection by any stockholder during normal business hours
for at least ten (10) days prior to the meeting. The list also shall be
available at the meeting and shall be subject to inspection by any stockholder
at any time during the meeting or its adjournment. The stockholders list shall
be prima facie evidence as to who are the stockholders entitled to examine such
list or the transfer books or to vote at any meeting of the stockholders.
Section L. VOTING OF SHARES. Each stockholder entitled to vote shall be
entitled at every meeting of the stockholders to one vote in person or by proxy
on each matter for each share of voting stock held by such stockholder. Such
right to vote shall be subject to the right of the Board of Directors to close
the transfer books or to fix a record date for voting stockholders as
hereinafter provided.
Section M. PROXIES. At all meetings of stockholders, a stockholder may
vote by proxy, executed in writing and delivered to the corporation in the
original or
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transmitted via telegram, or as a photographic, photostatic or equivalent
reproduction of a written proxy by the stockholder or by the stockholder's duly
authorized attorney-in-fact; but, no proxy shall be valid after eleven (11)
months from its date, unless the proxy provides for a longer period. Each proxy
shall be filed with the Secretary of the corporation before or at the time of
the meeting. In the event that a proxy shall designate two or more persons to
act as proxies, a majority of such persons present at the meeting, or, if only
one is present, that one, shall have all of the powers conferred by the proxy
upon all the persons so designated, unless the instrument shall provide
otherwise.
Section N. INFORMAL ACTION BY STOCKHOLDERS. Unless otherwise provided
in the Articles of Incorporation, any action required or permitted to be taken
at a meeting of the stockholders 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 stockholders 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, principal
place of business, the Secretary, or another officer or agent of the corporation
having custody of the book in which proceedings of meetings of shareholders are
recorded. No written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the date of the earliest
dated consent delivered to the Secretary, written consents signed by the number
of stockholders required to take action is delivered to the Secretary. If
authorization of an action is obtained by one or more written consent but less
than all stockholders so consent, then within ten (10) days after obtaining the
authorization of such action by written consents, notice must be given to each
stockholder who did not consent in writing and to each stockholder who is not
entitled to vote on the action.
Section O. PRESIDING OFFICER AND SECRETARY. At every meeting of the
stockholders, the Chairman of the Board, or in his absence the Chief Executive
Officer, or, if neither be present, an individual appointed by the Board of
Directors, shall act as the presiding officer of the meeting. The Secretary, or
in his absence an Assistant Secretary, shall as secretary for the meeting.
Section P. INSPECTORS. For each meeting of the stockholders, the Board
of Directors or the Chief Executive Officer may appoint two inspectors to
supervise the voting; and, if inspectors are so appointed, all questions
respecting the qualification of any vote, the validity of any proxy, and the
acceptance or rejection of any vote shall be decided by such inspectors. Before
acting at any meeting, the inspectors shall take an oath to execute their duties
with strict impartiality and according to the best of their ability. If any
inspector shall fail to be present or shall decline to act, the presiding
officer shall appoint another inspector to act in his place. In case of a tie
vote by the inspectors on any question, the presiding officer shall decide the
issue.
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ARTICLE III.
BOARD OF DIRECTORS
Section A. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors, which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by law, the
Articles of Incorporation or these by-laws directed or required to be exercised
or done only by the stockholders.
Section B. NUMBER, TENURE AND QUALIFICATIONS. The number of directors
of the corporation shall be not less than one (1) nor more than nine (9). Each
director shall hold office until such director's successor shall have been duly
elected and shall have qualified, unless such director sooner dies, resigns or
is removed by the stockholders at any annual or special meeting. It shall not be
necessary for directors to be stockholders. All directors shall be natural
persons who are 18 years of age or older.
Section C. CLASSIFICATION OF BOARD OF DIRECTORS. The directors are
divided into three classes, each class to consist, as nearly as may be, of
one-third of the number of directors of the corporation. The term of office of
those of the first class shall expire at the annual meeting next ensuing. The
term of office of the second class shall expire one year thereafter. The term of
office of the third class shall expire two years thereafter. At each succeeding
annual election, the directors elected shall be chosen for a full term of three
years to succeed those whose terms expire. 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.
Section D. ANNUAL MEETING. After each annual meeting of stockholders,
the Board of Directors shall hold its annual meeting at the same place as and,
immediately, following such annual meeting of stockholders for the purpose of
the election of officers and the transaction of such other business as may come
before the meeting; and, if a majority of the directors are present at such
place and time, no prior notice of such meeting shall be required to be given to
the directors. The place and time of such meeting may be varied by written
consent of all the directors.
Section E. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors.
Section F. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board, Chief Executive Officer or the
President. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meetings of the
Board of Directors called by him or them, as the case may be. If no such
designation is made, the place of meeting shall be the principal office of the
corporation in the State of Florida.
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Section G. NOTICE. Whenever notice of a meeting is required, written
notice stating the place, day and hour of the meeting shall be delivered at
least two (2) days prior thereto to each director, either personally, or by
first-class United States mail, telegraph, teletype, facsimile or other form of
electronic communication, or by private mail carriers handling nationwide mail
services, to the director's business address. If notice is given by first-class
United States mail, such notice shall be deemed to be delivered five (5) days
after deposited in the United States mail so addressed with postage thereon
prepaid or when received, if such date is earlier. If notice is given by
telegraph, teletype, facsimile transmission or other form of electronic
communication or by private mail carriers handling nationwide mail services,
such notice shall be deemed to be delivered when received by the director. Any
director may waive notice of any meeting, either before, at or after such
meeting. The attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened and so states at the beginning of the
meeting or promptly upon arrival at the meeting.
Section H. QUORUM. A majority of the total number of directors as
determined from time to time shall constitute a quorum.
Section I. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING. If less than a
majority of the total number of directors are present at a meeting, a majority
of the directors so present may adjourn the meeting without further notice. At
any adjourned meeting at which a quorum shall be present, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
Section J. MANNER OF ACTING. If a quorum is present when a vote is
taken, the act of a majority of the directors present at the meeting shall be
the act of the Board of Directors.
Section K. RESIGNATION. Any director may resign at any time either
orally at any meeting of the Board of Directors or by giving written notice to
the corporation. A director who resigns may postpone the effectiveness of his
resignation to a future date or upon the occurrence of a future event specified
in a written tender of resignation. If no time of effectiveness is specified
therein, a resignation shall be effective upon tender. A vacancy shall be deemed
to exist at the time a resignation is tendered, and the Board of Directors may
elect to appoint a successor to take office when the resignation by its terms
becomes effective.
Section L. REMOVAL. Any director may be removed by the stockholders
with or without cause at any meeting of the stockholders called expressly for
that purpose, but such removal shall be without prejudice to the contract
rights, if any, of the person removed. This by-law shall not be subject to
change by the Board of Directors.
Section M. VACANCIES. Any vacancy occurring in the Board of Directors,
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including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors, unless otherwise provided in the Articles of Incorporation. A
director elected to fill a vacancy, or a director elected to fill a vacancy in
the case of an increase in the number of directors, shall hold office until the
next shareholders' meeting at which directors are elected.
Section N. COMPENSATION. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as directors. No payment
shall preclude any director from serving the corporation in any other capacity
and receiving compensation therefor. In addition, the directors may also receive
options to purchase shares of stock of the corporation under the corporation's
stock option plans.
Section O. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
such director objects at the beginning of the meeting (or promptly upon his
arrival) to the holding of the meeting or the transacting of specified business
at the meeting or such director votes against such action or abstains from
voting in respect of such matter.
Section P. INFORMAL ACTION BY BOARD. Any action required or permitted
to be taken by any provisions of law, the Articles of Incorporation or these
by-laws at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if each and every member of the Board or of such
committee, as the case may be, signs a written consent thereto and such written
consent is filed in the minutes of the proceedings of the Board or such
committee, as the case may be. Action taken under this section is effective when
the last director signs the consent, unless the consent specifies a different
effective date, in which case it is effective on the date so specified.
Section Q. MEETING BY TELEPHONE, ETC. Directors or the members of any
committee shall be deemed present at a meeting of the Board of Directors or of
any such committee, as the case may be, if the meeting is conducted using a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time.
ARTICLE IV.
OFFICERS
Section A. NUMBER. The officers of the Corporation shall consist of a
Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial
Officer, a Secretary and a Treasurer, and may include one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, one
or
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more Assistant Secretaries and one or more Assistant Treasurers. The "Executive
Officers" shall consist of the Chief Executive Officer, President, Executive
Vice Presidents, Senior Vice Presidents, and such other officers as the Board of
Directors may designate from time to time by resolution. The Board of Directors
may elect other officers who shall have such authority and perform such duties
as may be prescribed by the Board of Directors. Any two or more offices may be
held by the same person.
Section B. APPOINTMENT AND TERM OF OFFICE. The Chairman of the Board
and the Executive Officers of the corporation shall be appointed annually by the
Board of Directors at its annual meeting. If the appointment of officers shall
not be made at such meeting, such appointment shall be made as soon thereafter
as is convenient. The Chief Executive Officer may appoint Vice Presidents and
such other officers and assistant officers as may be deemed appropriate;
provided, however, the Chief Executive Officer shall not have the power to
appoint Executive Officers. A duly appointed officer may appoint one or more
officers or assistant officers if authorized by the Board of Directors. Each
officer shall hold office until such officer's successor shall have been duly
appointed and qualified, unless such officer sooner dies, resigns or is removed
by the Board. The appointment of an officer does not itself create contract
rights. The Board of Directors may require an officer, agent or employee to give
security for the faithful performance of his or her duties.
Section C. RESIGNATION. An officer may resign at any time by delivering
notice to the corporation. A resignation shall be effective when the notice is
delivered unless the notice specifies a later effective date. An officer's
resignation shall not affect the corporation's contract rights, if any, with the
officer.
Section D. REMOVAL. The Board of Directors may remove any officer at
any time whenever, in the judgment of the Board of Directors, the best interests
of the corporation will be served thereby. Any officer or agent appointed by the
Chief Executive Officer may be removed by the Chief Executive Officer or the
Board of Directors at any time with or without cause. The Chief Executive
Officer may not remove any Executive Officers appointed by the Board. An
officer's removal shall not affect the officer's contract rights, if any, with
the corporation.
Section E. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the Board
of Directors, or in the case of offices that are not filled by Executive
Officers, by the Chief Executive Officer, for the unexpired portion of the term.
Section F. DUTIES OF THE CHAIRMAN OF THE BOARD. The Chairman of the
Board shall preside at all meetings of the Board of Directors and shall preside
at all meetings of the stockholders. The Chairman may fill such other offices as
the Board of Directors shall determine, and shall also exercise such further
powers and perform such other duties as may from time to time be conferred or
assigned by the Board of Directors.
Section G. DUTIES OF THE CHIEF EXECUTIVE OFFICER. The Chief
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Executive Officer shall have general charge of the business and affairs of the
corporation. The Chief Executive Officer shall have the power to appoint
officers, other than Executive Officers, and may delegate this authority to
appoint officers or the President. In the absence or disability of Chairman of
the Board, the Chief Executive Officer shall preside at all meetings of the
stockholders and the Board of Directors. The Chief Executive Officer may fill
such other offices as the Board of Directors shall determine, and shall also
exercise such further powers and perform such other duties as may from time to
time be conferred or assigned by the Board of Directors.
Section H. DUTIES OF THE PRESIDENT. The President, unless otherwise
designated by the Board of Directors, shall be the chief operating officer of
the corporation and shall have the responsibility for the general and active
management of the business and affairs of the corporation, subject to the
directions of the Board of Directors and the Chief Executive Officer. The
President shall see that all the orders and resolutions of the Board of
Directors are carried into effect. The President may sign, execute and deliver
in the name of the corporation powers of attorney, contracts, bonds and other
agreements and obligations. The President shall employ and discharge officers,
agents and employees of the Corporation, except for Executive Officers and those
officers appointed by the Chief Executive Officer and may delegate such
authority. In addition to the foregoing specific powers and duties, the
President shall exercise such duties as customarily pertain to the office of
president of a corporation and shall also exercise such further powers and
perform such other duties as may from time to time be conferred or assigned by
the Board of Directors.
Section I. DUTIES OF EXECUTIVE VICE PRESIDENTS. Each Executive Vice
President shall have such powers and perform such duties as the Board of
Directors may prescribe and shall perform such other duties as may be prescribed
by these by-laws. A Executive Vice President may sign and execute contracts and
other obligations pertaining to the regular course of his or her duties.
Section J. DUTIES OF SENIOR VICE PRESIDENTS. Each Senior Vice President
shall have such powers and perform such duties as the Board of Directors may
prescribe and shall perform such other duties as may be prescribed by these
by-laws. A Senior Vice President may sign and execute contracts and other
obligations pertaining to the regular course of his or her duties.
Section K. DUTIES OF VICE PRESIDENTS. Each Vice President shall have
such powers and perform such duties as the Board of Directors or the Chief
Executive Officer may prescribe and shall perform such other duties as may be
prescribed by these by-laws.
Section L. DUTIES OF THE SECRETARY. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and of the Board of
Directors, and all other notices required by law or by these by-laws. The
Secretary shall keep a record of the minutes of the proceedings of meetings of
stockholders and board of directors. The Secretary shall have custody of all
books, records and papers of the
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corporation, except such as shall be in the charge of the Treasurer, or of some
other person authorized to have custody and possession of such by a resolution
of the Board of Directors. The Secretary may sign or execute contracts with the
Chief Executive Officer, President or a Senior Vice President thereunto
authorized in the name of the corporation and affix the seal of the corporation
thereto. The Secretary shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer.
Section M. DUTIES OF THE CHIEF FINANCIAL OFFICER. The Chief Financial
Officer unless otherwise designated by the Board of Directors, shall be the
Senior Vice President of Finance of the corporation. The Chief Financial Officer
shall have the general custody of all the funds and securities of the
corporation and shall be responsible for the general supervision of the
collection and disbursement of funds of the corporation. The Chief Financial
Officer shall render to the Board of Directors and the Chief Executive Officer,
whenever required, an account of all transactions and information pertaining to
the financial condition of the corporation. The Chief Financial Officer shall
have such other powers and perform such other duties as are assigned by the
Board of Directors or the Chief Executive Officer.
Section N. DUTIES OF TREASURER. The Treasurer shall endorse on behalf
of the corporation for collection checks, notes and other obligations, and shall
deposit the same to the credit of the corporation in banks or other
depositories. The Treasurer shall enter or cause to be entered regularly in the
banks of the corporation full and accurate accounts of all monies received and
paid on account of the corporation. The Treasurer shall render to the Chief
Financial Officer an account of all transactions and information pertaining to
the financial condition of the corporation and shall have such other powers and
perform such other conditions as are assigned by the Board of Directors, Chief
Executive Officer or Chief Financial Officer.
Section O. DUTIES OF ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
The Board of Directors or the Chief Executive Officer may appoint one or more
assistant secretaries and assistant treasurers to perform such duties and to
have such powers as shall be assigned to them by the Secretary or Treasurer,
respectively, or by the Board of Directors or the Chief Executive Officer.
Section P. COMPENSATION. The salaries of the Executive Officers shall
be fixed from time to time by the Board of Directors, based on the
recommendation of the Compensation Committee, and no officer shall be prevented
from receiving a salary by reason of the fact that the officer is also a
director of the corporation. The salaries of other officers shall be fixed by
the Board of Directors, but this power may be delegated to the Chief Executive
Officer or the President as to any officer, agent or employee under their
direction and control.
Section Q. DELEGATION OF DUTIES. In the absence or disability of any
officer of the corporation, or for any other reason deemed sufficient by the
Board of Directors, the Board may delegate the powers or duties of such officer
to any other officer.
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Section R. DISASTER EMERGENCY POWERS OF ACTING OFFICERS. Unless
otherwise expressly prescribed by action of the Board of Directors taken
pursuant to Article XV of these by-laws, if, as a result of some catastrophic
event, a quorum of the corporation's directors cannot readily be assembled and
the Chief Executive Officer is unable to perform the duties of the office of
Chief Executive Officer and/or other officers are unable to perform their
duties, (a) the powers and duties of Chief Executive Officer shall be held and
performed by that officer of the corporation highest on the list of successors
(adopted by the Board of Directors for such purpose) who shall be available and
capable of holding and performing such powers and duties; and, absent any such
prior designation, by the President; (b) the officer so selected to hold and
perform such powers and duties shall serve as Acting Chief Executive Officer
until the Chief Executive Officer again becomes capable of holding and
performing the powers and duties of Chief Executive Officer, or until the Board
of Directors shall have elected a new Chief Executive Officer or designated
another individual as Acting Chief Executive Officer ; (c) such officer (or the
Chief Executive Officer, if such person is still serving) shall have the power,
in addition to all other powers granted to the Chief Executive Officer by law,
the Articles of Incorporation, these by-laws and the Board of Directors, to
appoint acting officers to fill vacancies that may have occurred, either
permanently or temporarily, by reason of such disaster or emergency, each of
such acting appointees to serve in such capacity until the officer for whom the
acting appointee is acting is capable of performing the duties of such office,
or until the Board of Directors shall have designated another individual to
perform such duties or shall have elected or appointed another person to fill
such office; (d) each acting officer so appointed shall be entitled to exercise
all powers invested by law, the Articles of Incorporation, these by-laws and the
Board of Directors in the office in which such person is serving; and (e) anyone
transacting business with the corporation may rely upon a certificate signed by
any two officers of the corporation that a specified individual has succeeded to
the powers and duties of the Chief Executive Officer or such other specified
office. Any person, firm, corporation or other entity to which such certificate
has been delivered by such officers may continue to rely upon it until notified
of a change by means of a writing signed by two officers of this corporation.
ARTICLE V.
EXECUTIVE AND OTHER COMMITTEES
Section A. CREATION OF COMMITTEES. The Board of Directors may designate
one or more committees, each to consist of two (2) or more of the directors of
the corporation.
Section B. EXECUTIVE COMMITTEE. The Executive Committee, if there shall
be one, shall consult with and advise the officers of the corporation in the
management of its business, and shall have, and may exercise, except to the
extent otherwise provided in the resolution of the Board of Directors creating
such Executive Committee, such powers of the Board of Directors as can be
lawfully delegated by the Board.
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Section C. COMPENSATION COMMITTEE. The Board of Directors may appoint a
Compensation Committee of three or more directors, at least a majority of whom
shall be neither officers nor otherwise employed by the corporation. The Board
of Directors shall designate one director as Chairman of the Compensation
Committee, and may designate one or more directors as alternate members of the
Compensation Committee, who may replace any absent or disqualified member at any
meeting of the Compensation Committee. The Compensation Committee shall have the
power to fix from time to time the compensation of all Executive Officers of the
corporation (including the Chairman of the Board) subject to the approval of the
Board of Directors and shall otherwise exercise such powers as may be
specifically delegated to it by the Board of Directors and act upon such matters
as may be referred to it from time to time for study and recommendation by the
Board of Directors or the Chief Executive Officer.
Section D. AUDIT COMMITTEE. The Board of Directors may appoint from
among its members an Audit Committee of not less than three members, at least a
majority of whom shall be neither officers nor otherwise employed by the
corporation. The Board of Directors shall designate one of such members as the
Chairman of the Audit Committee, and may designate one or more directors as
alternate members of the Audit Committee, who may replace any absent or
disqualified member at any meeting of the Audit Committee. The responsibilities
of the Audit Committee shall be as follows:
(1) To recommend to the Board of Directors for approval by the
stockholders a firm of independent public accountants to audit the accounts of
the corporation and its subsidiaries;
(2) To meet jointly and/or separately with the chief financial officer
of the corporation and the independent public accountants before commencement of
the audit to (a) discuss the valuation of the adequacy and effectiveness of the
accounting procedures and internal controls of the corporation and its
subsidiaries, (b) approve the overall scope of the audit to be made and the fees
to be charged, (c) inquire and discuss recent Financial Accounting Standards
Board, Securities and Exchange Commission or other regulatory agency
pronouncements, if any, which might affect the corporation's financial
statements;
(3) To meet jointly and/or separately with the chief financial officer
and the independent public accountants at the conclusion of the audit to (a)
review the audited financial statements of the corporation, (b) discuss the
results of the audit, (c) discuss any significant recommendations by the
independent public accountants for improvement of accounting systems and
controls of the corporation, and (d) discuss the quality and depth of staffing
in the accounting and financial departments of the corporation;
(4) To meet and confer with such officers and employees of the
corporation
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as the Audit Committee shall deem appropriate in connection with carrying out
the foregoing responsibilities.
Section E. OTHER COMMITTEES. The Board of Directors may appoint
committees to administer the corporation's (a) 1990 Incentive and Non-Statutory
Stock Option Plan ("1990 Plan"); (b) Non-Employee Directors 1995 Non-Statutory
Stock Option Plan ("1995 Plan"); (c) 1995 Employee Stock Purchase Plan ("ESPP
Plan"); and (d) Employee Stock Ownership Plan ("ESOP Plan"). The same committee
may administer the 1990 Plan, the ESPP Plan and the ESOP Plan. The specific
terms of the 1990 Plan, 1995 Plan, the ESPP Plan and the ESOP Plan shall govern
the appointment of committee members and the proceedings of each such committee.
In addition, such other committees, to the extent provided in the resolution or
resolutions creating them, shall have such functions and may exercise such
powers of the Board of Directors as can be lawfully delegated.
Section F. REMOVAL OR DISSOLUTION. Any Committee of the Board of
Directors may be dissolved by the Board at any meeting; and any member of such
committee may be removed by the Board of Directors with or without cause. Such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
Section G. VACANCIES ON COMMITTEES. Vacancies on any committee of the
Board of Directors shall be filled by the Board of Directors at any regular or
special meeting.
Section H. MEETINGS OF COMMITTEES. Regular meetings of any committee of
the Board of Directors may be held without notice at such time and at such place
as shall from time to time be determined by such committee and special meetings
of any such committee may be called by any member thereof upon two (2) days
notice of the date, time and place of the meeting given to each of the other
members of such committee, or on such shorter notice as may be agreed to in
writing by each of the other members of such committee, given either personally
or in the manner provided in Section G of Article III of these by-laws
(pertaining to notice for directors' meetings).
Section I. ABSENCE OF COMMITTEE MEMBERS. The Board of Directors may
designate one or more directors as alternate members of any committee of the
Board of Directors, who may replace at any meeting of such committee, any member
not able to attend.
Section J. QUORUM OF COMMITTEES. At all meetings of committees of the
Board of Directors, a majority of the total number of members of the committee
as determined from time to time shall constitute a quorum for the transaction of
business.
Section K. MANNER OF ACTING OF COMMITTEES. If a quorum is present when
a vote is taken, the act of a majority of the members of any committee of the
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Board of Directors present at the meeting shall be the act of such committee.
Section L. MINUTES OF COMMITTEES. Each committee of the Board of
Directors shall keep regular minutes of its proceedings and report the same to
the Board of Directors when required.
Section M. COMPENSATION. Members of any committee of the Board of
Directors may be paid compensation in accordance with the provisions of Section
N of Article III of these by-laws (pertaining to compensation of directors).
Section N. INFORMAL ACTION. Any committee of the Board of Directors may
take such informal action and hold such informal meetings as allowed by the
provisions of Sections P and Q of Article III of these by-laws.
ARTICLE VI.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section A. GENERAL. To the fullest extent permitted by law, the
corporation shall indemnify any person who is or was a party to any threatened,
pending or completed action, suit or other type of proceeding (other than an
action by or in the right of the corporation), whether civil, criminal,
administrative, investigative or otherwise, and whether formal or informal, by
reason of the fact that such person 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 judgments, amounts paid in
settlement, penalties, fines (including an excise tax assessed with respect to
any employee benefit plan) and expenses (including counsel fees) actually and
reasonably incurred in connection with any such action, suit or other
proceeding, including any appeal thereof, if such person acted in good faith and
in a manner he or she reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any such action, suit or other 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 such person did not act in good
faith and in a manner that 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 or her
conduct was unlawful.
Section B. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. To the
fullest extent permitted by law, the corporation shall indemnify any person who
is or was a party to any threatened, pending or completed action, suit or other
type of proceeding (as further described in Section A of this Article VI) by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that such person 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
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corporation, partnership, joint venture, trust or other enterprise, against
expenses (including counsel fees) and amounts paid in settlement not exceeding,
in the judgment of the Board of Directors, the estimated expenses of litigating
the action, suit or other proceeding to conclusion, actually and reasonably
incurred in connection with the defense or settlement of such action, suit or
other proceeding, including any appeal thereof, if such person acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation, except that no indemnification shall be
made under this Section B 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 action, suit or other proceeding was brought, or
any other court of competent jurisdiction, shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for such expenses that such court shall deem proper.
Section C. OBLIGATION TO INDEMNIFY. To the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or other proceeding referred to in
Section A or Section B of this Article VI, or in the defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
counsel fees) actually and reasonably incurred by such person in connection
therewith.
Section D. DETERMINATION THAT INDEMNIFICATION IS PROPER.
Indemnification pursuant to Section A or Section B of this Article VI, unless
made pursuant to a determination by a court, shall be made by the corporation
only as authorized in the specific case upon a determination that the
indemnification is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section A or Section B of this
Article VI. Such determination shall be made either (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to the action, suit or other proceeding to which the indemnification
relates; (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 (the
designation being one in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to such
action, suit or other proceeding; (3) by independent legal counsel (i) selected
by the Board of Directors in accordance with the requirements of subsection (1)
or by a committee designated under subsection (2) or (ii) if a quorum of the
directors cannot be obtained and a committee cannot be designated, selected by
majority vote of the full Board of Directors (the vote being one in which
directors who are parties may participate); or (4) by the stockholders by a
majority vote of a quorum consisting of stockholders who were not parties to
such action, suit or other proceeding or, if no such quorum is obtainable, by a
majority vote of stockholders who were not parties to such action, suit or other
proceeding.
Section E. EVALUATION AND AUTHORIZATION. Evaluation of the
reasonableness of expenses and authorization of indemnification shall be made in
the same manner as is prescribed in Section D of this Article VI for the
determination that
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indemnification is permissible; provided, however, that if the determination as
to whether indemnification is permissible is made by independent legal counsel,
the persons who selected such independent legal counsel shall be responsible for
evaluating the reasonableness of expenses and may authorize indemnification.
Section F. PREPAYMENT OF EXPENSES. Expenses (including counsel fees)
incurred by a director or officer in defending a civil or criminal action, suit
or other proceeding referred to in Section A or Section B of this Article VI
shall be paid by the corporation in advance of the final disposition thereof
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if such person is ultimately found not to be entitled to
indemnification by the corporation pursuant to this Article VI. Expenses
incurred by other employees and agents may be paid in advance upon such terms
and conditions that the Board of Directors deems appropriate.
Section G. NONEXCLUSIVITY AND LIMITATIONS. The indemnification and
advancement of expenses provided pursuant to this Article VI shall not be deemed
exclusive of any other rights to which a person may be entitled under any law,
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity and as to action
in any other capacity while holding such office. In all cases not specifically
provided for in this Article VI, 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 such person's 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 liability for unlawful distributions is applicable; (4) willful misconduct
or a conscious disregard for the best interests of the corporation in a
proceeding by or in the right of a corporation to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder; or (5) to the
extent that such indemnification or advancement of expenses is expressly
prohibited by law.
Section H. CONTINUATION OF INDEMNIFICATION RIGHT. Unless expressly
otherwise provided when authorized or ratified by this corporation,
indemnification and advancement of expenses as provided for in this Article VI
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such person. For purposes of this Article VI, 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 Article VI with respect to the resulting or
surviving corporation as
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such person would have been with respect to such constituent corporation if its
separate existence had continued.
Section I. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or who 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 such person and incurred by such person in any such capacity or
arising out of such person's status as such, whether or not the corporation
would have the power to indemnify such person against the liability under
Section A or Section B of this Article VI.
ARTICLE VII.
INTERESTED PARTIES
Section A. GENERAL. No contract or other transaction between the
corporation and any one or more of its directors or any other corporation, firm,
association or entity in which one or more of its directors are directors or
officers or are financially interested shall be either void or voidable because
of such relationship or interest, because such director or directors were
present at the meeting of the Board of Directors or of a committee thereof which
authorizes, approves or ratifies such contract or transaction or because such
director's or directors' votes are counted for such purpose if: (1) 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 transaction by
a vote or consent sufficient for the purpose without counting the votes or
consents of such interested directors; (2) the fact of such relationship or
interest is disclosed or known to the stockholders entitled to vote on the
matter, and they authorize, approve or ratify such contract or transaction by
vote or written consent; or (3) the contract or transaction is fair and
reasonable as to the corporation at the time it is authorized by the Board of
Directors, a committee thereof or the stockholders.
Section B. APPROVAL BY BOARD OF DIRECTORS OR COMMITTEE. For purposes of
Section A(1) of this Article VII, a conflict of interest transaction is
authorized, approved or ratified if it receives the affirmative vote of a
majority of the directors on the Board of Directors, or on the committee, who
have no relationship or interest in the transaction, but a transaction may not
be authorized, approved or ratified by a single director. If a majority of the
directors who have no such relationship or interest in the transaction vote to
authorize, approve or ratify the transaction, a quorum is present for the
purpose of taking action under this Section B. The presence of or a vote cast
by, a director with such relationship or interest in the transaction does not
affect the validity of any action taken under Section A(1) of this Article VII
if the transaction is otherwise authorized, approved or ratified as provided in
Section A, but such presence or vote of those directors may be counted for
purposes of determining whether the transaction is approved under other sections
of the corporation's by-laws and applicable law.
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Section C. APPROVAL BY STOCKHOLDERS. For purposes of Section A(2) of
this Article VII, a conflict of interest transaction shall be authorized,
approved or ratified if it receives the vote of a majority of the shares
entitled to be counted under this Section C. Shares owned by or voted under the
control of a director who has a relationship or interest in the transaction may
not be counted in a vote of stockholders to determine whether to authorize,
approve or ratify a conflict of interest transaction under Section A(2) of this
Article VII. The vote of the shares owned by or voted under the control of a
director who has a relationship or interest in the transaction shall be counted,
however, in determining whether the transaction is approved under other sections
of the corporation's by-laws and applicable law. A majority of the shares,
whether or not present, that would be entitled to be counted in a vote on the
transaction under this Section C shall constitute a quorum for the purpose of
taking action under this Section C.
ARTICLE VIII.
CERTIFICATES OF STOCK
Section A. CERTIFICATES FOR SHARES. Shares may but need not be
represented by certificates. The rights and obligations of stockholders shall be
identical whether or not their shares are represented by certificates. If shares
are represented by certificates, each certificate shall be in such form as the
Board of Directors may from time to time prescribe, signed (either manually or
in facsimile) by the President, a Vice President, the Secretary, or the
Treasurer and sealed with the seal of the corporation or its facsimile),
exhibiting the holder's name, certifying the number of shares owned and stating
such other matters as may be required by law. The certificates shall be numbered
and entered on the books of the corporation as they are issued. If shares are
not represented by certificates, then, within a reasonable time after issue or
transfer of shares without certificates, the corporation shall send the
stockholder a written statement in such form as the Board of Directors may from
time to time prescribe, certifying as to the number of shares owned by the
stockholder and as to such other information as would have been required to be
on certificates for such shares.
Section B. SIGNATURES OF PAST OFFICERS. If the person who signed
(either manually or in facsimile) a share certificate no longer holds office
when the certificate is issued, the certificate shall nevertheless be valid.
Section C. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may,
in its discretion, appoint responsible banks or trust companies in such city or
cities as the Board may deem advisable from time to time to act as transfer
agents and registrars of the stock of the corporation; and, when such
appointments shall have been made, no stock certificate shall be valid until
countersigned by one of such transfer agents and registered by one of such
registrars.
Section D. TRANSFER OF SHARES. Transfers of shares of the corporation
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shall be made upon its books by the holder of the shares in person or by the
holder's lawfully constituted representative, upon surrender of the certificate
of stock for cancellation if such shares are represented by a certificate of
stock or by delivery to the corporation of such evidence of transfer as may be
required by the corporation if such shares are not represented by certificates.
The person in whose name shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all purposes and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Florida.
Section E. LOST CERTIFICATES. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation and alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or the owner's
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE IX.
RECORD DATE
Section A. RECORD DATE FOR STOCKHOLDER ACTIONS. The Board of Directors
is authorized from time to time to fix in advance a date, not more than seventy
(70) nor less than ten (10) days before the date of any meeting of the
stockholders, a date in connection with the obtaining of the consent of
stockholders for any purpose, or the date of any other action requiring a
determination of the stockholders, as the record date for the determination of
the stockholders entitled to notice of and to vote at any such meeting and any
adjournment thereof (unless a new record date must be established by law for
such adjourned meeting), or of the stockholders entitled to give such consent or
take such action, as the case may be. In no event may a record date so fixed by
the Board of Directors precede the date on which the resolution establishing
such record date is adopted by the Board of Directors. Only those stockholders
listed as stockholders of record as of the close of business on the date so
fixed as the record date shall be entitled to notice of and to vote at such
meeting and any adjournment thereof, or to exercise such rights or to give such
consent, as the case may be, notwithstanding any transfer of any stock on the
books of the corporation after any such record date fixed as aforesaid. If the
Board of Directors fails to establish a record date as provided herein, the
record date shall be deemed to be the date ten (10) days prior to the date of
the stockholders' meeting.
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Section B. RECORD DATE FOR DIVIDEND AND OTHER DISTRIBUTIONS. The Board
of Directors is authorized from time to time to fix in advance a date, not more
than seventy (70) nor less than ten (10) days before the date of any dividend or
other distribution, as the record date for the determination of the stockholders
entitled to receive such dividend or other distribution. In no event may a
record date so fixed by the Board of Directors precede the date on which the
resolution establishing such record date is adopted by the Board of Directors.
Only those stockholders listed as stockholders of record as of the close of
business on the date so fixed as the record date shall be entitled to receive
the dividend or other distribution, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid. If the Board of Directors fails to establish a record date
as provided herein, the record date shall be deemed to be the date of
distribution of the dividend or other distribution.
ARTICLE X.
DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares of capital stock in the
manner and upon the terms and conditions provided by the Articles of
Incorporation and by law. Subject to the provisions of the Articles of
Incorporation and to law, dividends may be paid in cash or property, including
shares of stock or other securities of the corporation.
ARTICLE XI.
FISCAL YEAR
The fiscal year of the corporation shall begin on February 1 and end on
January 31 of each year, unless the Board of Directors specifically establishes
a different fiscal year.
ARTICLE XII.
SEAL
The corporate seal shall have the name of the corporation, the word
"SEAL" and the year of incorporation inscribed thereon, and may be a facsimile,
engraved, printed or impression seal. An impression of said seal appears on the
margin hereof.
ARTICLE XIII.
STOCK IN OTHER CORPORATIONS
Shares of stock in other corporations held by the corporation shall be
voted by such officer or officers or other agent of the corporation as the Board
of Directors shall
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from time to time designate for the purpose or by a proxy thereunto duly
authorized by said Board.
ARTICLE XIV.
AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may
be adopted by the Board of Directors; provided that any by-law or amendment
thereto as adopted by the Board of Directors may be altered, amended or repealed
by vote of the stockholders entitled to vote thereon, or a new by-law in lieu
thereof may be adopted by the stockholders, and the stockholders may prescribe
in any by-law made by them that such by-law shall not be altered, amended or
repealed by the Board of Directors.
ARTICLE XV.
EMERGENCY BY-LAWS
Section A. SCOPE OF EMERGENCY BY-LAWS. The emergency by-laws provided
in this Article XV shall be operative during any emergency, notwithstanding any
different provision set forth in the preceding articles hereof or the Articles
of Incorporation. For purposes of the emergency by-law provisions of this
Article XV, an emergency shall exist if a quorum of the corporation's directors
cannot readily be assembled because of some catastrophic event. To the extent
not inconsistent with the provisions of this Article, the by-laws provided in
the preceding Articles shall remain in effect during such emergency and upon
termination of such emergency, these emergency by-laws shall cease to be
operative.
Section B. CALL AND NOTICE OF MEETING. During any emergency, a meeting
of the Board of Directors may be called by any officer or director of the
corporation. Notice of the date, time and place of the meeting shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any available means of communication. Such notice shall be given at
such time in advance of the meeting as circumstances permit in the judgment of
the person calling the meeting.
Section C. QUORUM AND VOTING. At any such meeting of the Board of
Directors, a quorum shall consist of any one or more directors, and the act of
the majority of the directors present at such meeting shall be the act of the
corporation.
Section D. APPOINTMENT OF TEMPORARY DIRECTORS.
1. The director or directors who are able to be assembled at a
meeting of directors during an emergency may assemble for the purpose of
appointing, if such directors deem it necessary, one or more temporary directors
(the "Temporary Directors") to serve as directors of the corporation during the
term of any emergency.
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2. If no directors are able to attend a meeting of directors
during an emergency, then such stockholders as may reasonably be assembled shall
have the right, by majority vote of those assembled, to appoint Temporary
Directors to serve on the Board of Directors until the termination of the
emergency.
3. If no stockholders can reasonably be assembled in order to
conduct a vote for Temporary Directors, then the Chief Executive Officer or his
successor, as determined pursuant to Section R of Article IV herein shall be
deemed a Temporary Director of the corporation, and such Chief Executive Officer
or his successor, as the case may be, shall have the right to appoint additional
Temporary Directors to serve with him on the Board of Directors of the
corporation during the term of the emergency.
4. Temporary Directors shall have all of the rights, duties
and obligations of directors appointed pursuant to Article III hereof, provided,
however, that a Temporary Director may be removed from the Board of Directors at
any time by the person or persons responsible for appointing such Temporary
Director, or by vote of the majority of the stockholders present at any meeting
of the stockholders during an emergency, and, in any event, the Temporary
Director shall automatically be deemed to have resigned from the Board of
Directors upon the termination of the emergency in connection with which the
Temporary Director was appointed.
Section E. MODIFICATION OF LINES OF SUCCESSION. During any emergency,
the Board of Directors may provide, and from time to time modify, lines of
succession different from that provided in Section R of Article IV in the event
that during such an emergency any or all officers or agents of the corporation
shall for any reason be rendered incapable of discharging their duties.
Section F. CHANGE OF PRINCIPAL OFFICE. The Board of Directors may,
either before or during any such emergency, and effective during such emergency,
change the principal office of the corporation or designate several alternative
head offices or regional offices, or authorize the officers of the corporation
to do so.
Section G. LIMITATION OF LIABILITY. No officer, director or employee
acting in accordance with these emergency by-laws during an emergency shall be
liable except for willful misconduct.
Section H. REPEAL AND CHANGE. These emergency by-laws shall be subject
to repeal or change by further action of the Board of Directors or by action of
the stockholders, but no such repeal or change shall modify the provisions of
Section G above with regard to actions taken prior to the time of such repeal or
change. Any amendment of these emergency by-laws may make any further or
different provision that may be practical or necessary under the circumstances
of the emergency.
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