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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EVENT REPORTED) NOVEMBER 20, 1997
CRP HOLDING CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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FLORIDA 0-16631 59-2763089
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (IRS EMPLOYER
INCORPORATION) IDENTIFICATION NO.)
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1800 OCEAN AVENUE RONKONKOMA, NY 11779
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (516) 588-7000
BOCA RATON CAPITAL CORP. , 6516 VIA ROSA, BOCA RATON, FL 34333, (516) 750-2252
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT.)
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ITEM 5. OTHER EVENTS
(a) On November 20, 1997, CRP Holding Corp. (formerly known as Boca
Raton Capital Corporation) (the "Company") filed Amended and Restated Articles
of Incorporation pursuant to which, among other things, the Company changed its
name from Boca Raton Capital Corporation to CRP Holding. Corp.
(b) The new transfer agent for the Company's shares of common stock,
effective November 21, 1997, is American Securities Transfer & Trust, Inc., 1825
Lawrence Street, Suite 444, Denver, CO 80202-2817.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
3.1 Amended and Restated Articles of Incorporation of the Company, effective
as of November 21, 1997.
3.2 Amended and Restated By-Laws of the Company (as adopted on October 9,
1997).
SIGNATURE
Pursuant to the requirements of the Securities exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: November 26, 1997 CRP Holding Corp.
By: /s/ Charles A. Chenes
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Charles A. Chenes
President and Chief Executive Officer
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EXHIBIT INDEX
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EXHIBIT NO. EXHIBIT PAGE NO.
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3.1 Amended and Restated Articles of Incorporation of Boca Raton
Capital Corp. (effective as of November 21, 1997).
3.2 Amended and Restated By-Laws of CRP Holding Corp. (formerly
known as Boca Raton Capital Corporation) as adopted on
October 9, 1997).
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EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BOCA RATON CAPITAL CORPORATION
(originally incorporated on January 26, 1987 under the name U.S. Tech, Inc.)
The undersigned hereby certify that the following Amended and Restated
Articles of Incorporation, which:
(i) amend Articles I, IV, V and VI;
(ii) delete former Article VII in its entirety; and
(iii) amend Articles VIII through XIII and redesignate the same as
articles VII through XII, respectively,
were adopted by the Board of Directors at a meeting duly called and held on
December 9, 1996 and by the affirmative vote of the holders of the requisite
number of the issued and outstanding shares of common stock of Boca Raton
Capital Corporation, entitled to vote thereon at a special meeting of the
shareholders duly called and held on October 9, 1997, all in accordance with the
Florida 1989 Business General Corporation Act and the Amended and Restated
Articles of Incorporation of Boca Raton Capital Corporation then in effect.
ARTICLE I - NAME
The name of this corporation is CRP Holding Corp. (the "Corporation").
ARTICLE II - COMMENCEMENT
The Corporation commenced business as of January 26, 1987, the
date of execution and acknowledgment of the Corporation's original Articles of
Incorporation.
ARTICLE III - PURPOSE
The Corporation is organized for the purpose of transacting
any or all lawful business.
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ARTICLE IV - CAPITALIZATION
Section 4.1: Authorized Capital. The total number of shares of
all classes of stock which the Corporation shall have authority to issue is
Forty-five Million (45,000,000) shares, consisting of Forty Million (40,000,000)
shares of common stock, par value $.001 per share (the "Common Stock"), and Five
Million (5,000,000) shares of preferred stock, par value $1.00 per share (the
"Preferred Stock").
At any time and from time to time when authorized by
resolution of the Board of Directors of the Corporation (the "Board of
Directors") and without any action by its shareholders, the Corporation may
issue or sell any shares of its capital stock of any class or series, whether
out of the unissued shares thereof authorized by these Amended and Restated
Articles of Incorporation (the "Articles of Incorporation") or by any amendment
hereof or out of shares of its capital stock acquired by it after the issue
thereof, and whether or not the shares thereof so issued or sold shall confer
upon the holders thereof the right to exchange or convert such shares for or
into other shares of capital stock of the Corporation of any class or classes or
any series thereof . When similarly authorized, but without any action by its
shareholders, the Corporation may issue or grant rights, warrants or options, in
bearer or registered or such other form as the Board of Directors may determine,
for the purchase of shares of the capital stock of any class or series of the
Corporation within such period of time, or without limit as to time, to such
aggregate number of shares, and at such price per share, as the Board of
Directors may determine. Such rights, warrants or options may be issued or
granted separately or in connection with the issue of any bonds, debentures,
notes, obligations or other evidences of indebtedness or shares of the capital
stock of any class or series of the Corporation and for such consideration and
on such terms and conditions as the Board of Directors in its sole discretion
may determine. In each case the consideration to be received by the Corporation
for any such shares so issued or sold shall be such as shall be fixed from time
to time by resolution by the Board of Directors. Each share of the capital stock
of the corporation issued or sold pursuant to the foregoing provisions of this
Section 4.1 and the full consideration for which in each case as so fixed by the
Board of Directors shall have been paid or delivered to the Corporation, shall
be conclusively deemed to be fully paid stock and shall not be liable to any
further call or assessments thereon, and the holders thereof shall not be liable
for any further payments in respect thereof. The Corporation may receive in
payment, in whole or in part, for any shares of its capital stock issued or sold
by it, cash, labor done, personal property or real property or leases thereof,
and in the absence of actual fraud in the transaction, the judgment of the Board
of Directors as to the value of the labor, personal property or real property or
leases thereof so received shall be conclusive.
Section 4.2. Preferred Stock.
(a) The Board of Directors shall have authority by
resolution to issue the shares of Preferred Stock from time to
time on such terms as it may determine, to divide the
Preferred Stock into one or more series, and in connection
with the creation of any such series, in the resolution or
resolutions providing for the issuance of shares of such
particular series, to determine and fix the following:
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(i) The distinctive designation of such
series, the number of shares which shall constitute
such series, which number may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by action of the Board
of Directors, and the stated value thereof, if
different from the par value thereof;
(ii) The dividend rate, the times of payment
of dividends on the shares of such series, whether
dividends shall be cumulative, and, if so, from what
date or dates, and the preference or relation which
such dividends will bear to the dividends payable on
any shares of stock of any other class or any other
series of this class;
(iii) The price or prices at which, and
the terms and conditions on which, the shares of such
series may be redeemed;
(iv) The times, terms, and conditions, if
any, upon which shares of such series shall be
subject to redemption, including the amount the
holders of shares of such series shall be entitled to
receive upon redemption (which amounts may vary under
different conditions or at different redemption
dates) and the amount, terms, and conditions and
manner of operation of any purchase, retirement, or
sinking fund to be provided for the shares of such
series;
(v) Whether or not the shares of such series
shall be convertible into, or exchangeable for, any
other shares of stock of the Corporation or any other
securities and, if so convertible or exchangeable,
the conversion price or prices, or the rates of
exchange, and any adjustments thereof, at which such
conversion or exchange may be made, and any other
terms and conditions of such conversion or exchange;
(vi) The rights of the shares of such series
in the event of voluntary or involuntary liquidation,
dissolution or winding up, or upon any distribution
of the assets, of the Corporation;
(vii) Whether or not the shares of such
series shall have priority over or parity with or be
junior to the shares of any other class or series in
any respect, or shall be entitled to the benefit of
limitations restricting (a) the creation of
indebtedness of the Corporation, (b) the issuance of
shares of any other class or series having priority
over or being on a parity with the shares of such
series in any respect, or (c) the payment of
dividends on, the making of other distributions in
respect of, or the purchase or redemption of shares
of any other class or series on a parity with or
ranking junior to the shares of such series as to
dividends or assets, and the terms of any such
restrictions, or any other restriction with respect
to
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shares of any other class or series on a parity
with or ranking junior to the shares of such series
in any respect;
(viii) Whether such series shall have voting
rights, in addition to any voting rights provided by
law and, if so, the terms of such voting rights,
which may be general or limited; and
(ix) Any other powers, preferences,
privileges, and relative, participating, optional, or
other special rights of such series, and the
qualifications, limitations or restrictions thereof,
to the full extent now or hereafter permitted by law.
(b) The powers, preferences and relative,
participating, optional and other special rights of each
series of Preferred Stock, and the qualifications, limitations
or restrictions thereof, if any, may differ from those of any
and all other series at any time outstanding. All shares of
any one series of Preferred Stock shall be identical in all
respects with all other shares of such series, except that
shares of any one series issued at different times may differ
as to the dates from which dividends thereon shall be
cumulative.
(c) All Preferred Stock redeemed, purchased or
otherwise acquired by the Corporation (including shares
surrendered for conversion) shall be canceled and thereupon
restored to the status of authorized but unissued Preferred
Stock undesignated as to series.
Section 4.3. Common Stock. A statement of the designations, powers,
preferences, rights, qualifications, limitations and restrictions in respect of
the shares of Common Stock is as follows:
(a) Subject to the provisions of law and the rights
of any Preferred Stock and any other class or series of stock
having a preference as to dividends over the Common Stock then
outstanding, dividends may be paid on the Common Stock, out of
funds legally available therefor, at such times and in such
amounts as the Board of Directors shall from time to time
determine.
(b) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation and the
preferential amounts to which the holders of the Preferred
Stock shall be entitled upon liquidation, the holders of
Common Stock shall be entitled, to the exclusion of the
holders of Preferred Stock, to share, ratably according to the
number of shares of Common Stock held by them, in all
remaining assets of the Corporation available for distribution
to its shareholders. For purposes of this Section 4.3(b),
neither the voluntary sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other consideration)
of all or substantially all of the property or assets
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of the Corporation nor the consolidation or merger of the
Corporation with any other corporation shall be deemed to be a
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, unless such voluntary sale, conveyance,
exchange or transfer shall be in connection with a plan of
liquidation, dissolution or winding up of the Corporation.
(c) Except as otherwise provided in this Certificate
of Incorporation or by applicable law, the holders of Common
Stock shall be entitled to vote on each matter on which the
shareholders of the Corporation shall be entitled to vote.
Each share of Common Stock shall have one vote, and the Common
Stock shall vote together as a single class.
ARTICLE V - MANAGEMENT OF THE CORPORATION
The following provisions are inserted for the management of
the business and the conduct of affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and shareholders:
Section 5.1: Powers of the Board of Directors. The business
and affairs of the Corporation shall be managed by or under the direction of the
Board of Directors. In addition to the powers and the authority expressly
conferred upon them by statute or by the Articles of Incorporation or the
By-Laws of the Corporation, the Board of Directors is hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation.
Section 5.2: Election by Written Ballot. The directors of
the Corporation need not be elected by written ballot, unless the By-Laws so
provide.
Section 5.3: Shareholder Action. Any action required or
permitted to be taken by the shareholders of the Corporation at any annual or
special meeting of the shareholders may not be effected by any consent in
writing by such shareholders unless such consent shall be signed by the holders
of at least 66 2/3% of the combined voting power of the then outstanding shares
of Voting Stock or such higher vote as may be required by the Articles of
Incorporation, voting together as a single class. "Voting Stock" shall mean the
Common Stock and any shares of Preferred Stock issued pursuant to Section 4.1
hereof entitled to vote as a single class with the Common Stock.
Section 5.4: Special Meetings of Shareholders. Except as
otherwise required by law and subject to the rights of the holders of Preferred
Stock or any other class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, special meetings of the shareholders
of the Corporation may be called only by (i) the Chairman of the Board of
Directors, (ii) the President of the Corporation, (iii) the Board of Directors
pursuant to a resolution adopted by a majority of the directors, or (iv) the
holders of at least 50% of the Voting Stock of the Corporation.
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ARTICLE VI - BOARD OF DIRECTORS
Section 6.1: Classification of Board. Except as otherwise
fixed by or pursuant to the provisions of Article IV hereof relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, the number of the
directors of the Corporation shall be fixed from time to time by or pursuant to
the By-Laws of the Corporation. The directors, other than those who may be
elected by the holders of the Preferred Stock or any other class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation pursuant to the terms of the Articles of Incorporation or any
resolution or resolutions providing for the issue of such class or series of
stock adopted by the Board of Directors, shall be classified, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be provided in the By-Laws of the
Corporation, one class to be originally elected for a term expiring at the
annual meeting of shareholders to be held in 1998, another class to be
originally elected for a term expiring at the annual meeting of shareholders to
be held in 1999, and another class to be originally elected for a term expiring
at the annual meeting of shareholders to be held in 2000, with each class to
hold office until its successors are elected and qualified. At each annual
meeting of the shareholders of the Corporation commencing in 1998, the date of
which shall be fixed by or pursuant to the By-Laws of the Corporation, the
successors of the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting of shareholders
held in the third year following the year of their election. If the number of
directors constituting the Board of Directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, and any additional
directors of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class, but in no event shall a decrease in the number of directors
constituting the total number of directors which the Corporation would have if
there were no vacancies, shorten the term of any incumbent director. A director
shall hold office until the annual meeting of the shareholders for the year in
which his term expires and until his successor shall be elected and shall
qualify, subject however, to prior death, resignation, retirement,
disqualification or removal from office.
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the Articles of Incorporation or the resolution or resolutions adopted
by the Board of Directors pursuant to Article IV, Section 4.2 applicable
thereto, and such directors so elected shall not be divided into classes
pursuant to this Article VI unless expressly provided by such terms.
Section 6.2: Notice of Nominations. Advance notice of
shareholder nominations for the election of directors and of business to be
brought by shareholders before any meeting of the shareholders of the
Corporation shall be given in the manner provided in the By-Laws of the
Corporation.
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Section 6.3. Vacancies. Except as otherwise provided for or
fixed by or pursuant to the provisions of Article IV hereof relating to the
rights of the holders of any class or series of stock having a preference over
the Common Stock as to dividends or upon liquidation, newly created
directorships resulting from any increase in the number of directors may be
filled by the Board of Directors, or as otherwise provided in the By-Laws of the
Corporation, and any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall only be filled by the affirmative vote
of a majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors, or by a sole remaining director, or as
otherwise provided in the By-Laws. Any director elected in accordance with the
preceding sentence of this Section 6.3 shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been elected and qualified.
Section 6.4. Removal of Directors. Subject to any rights of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, any director may be removed from office only for
cause and only by the affirmative vote of the holders of at least 80% of the
combined voting power of the then outstanding shares of Voting Stock, voting
together as a single class.
ARTICLE VII - ACQUISITION OFFERS
A director, when evaluating any offer of another person to (i)
make a tender or exchange offer for any equity security of the Corporation, (ii)
merge or consolidate the Corporation, or cause the Corporation to conduct a
share exchange or other combination, with another corporation or entity, or
(iii) purchase or otherwise acquire all or substantially all of the properties
and assets of the Corporation, in connection with the exercise of its judgment
in determining what is in the best interests of the Corporation and its
shareholders, shall give due consideration to the interests of the Corporation's
shareholders, and, in his discretion, may consider the following: (a) the social
and economic effect of acceptance of such offer on the Corporation's present and
future customers, suppliers, creditors, and employees and those of its
subsidiaries; (b) on the communities in which the Corporation and its
subsidiaries operate or are located; and (c) the long-term as well as short-term
interests of the Corporation, its subsidiaries and its shareholders, including
the possibility that these interests may be best served by the continued
independence of the Corporation.
ARTICLE VIII - INDEMNIFICATION
The Corporation shall indemnify and may advance expenses to
its officers and directors, and may indemnify its employees and agents, to the
fullest extent permitted by the provisions of the Florida 1989 Business
Corporation Act, as the same may be amended and supplemented. The
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-law, 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. Such indemnification
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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 and personal
representatives of such a person. An adjudication of liability shall not affect
the right to indemnification for those indemnified.
ARTICLE IX - AMENDMENTS
Section 9.1: Amendment of Articles of Incorporation. The
Corporation reserves the right to amend or repeal any provision contained in the
Articles of Incorporation in the manner prescribed by the laws of the State of
Florida and all rights conferred upon shareholders are granted subject to this
reservation; provided, however, that in addition to any other provisions of the
Articles of Incorporation or requirements of law (and notwithstanding the fact
that a lesser percentage may be specified by the Articles of Incorporation or
any By-law), the affirmative vote of the holders of at least 66 2/3% or more of
the combined voting power of the then-outstanding shares of Voting Stock, voting
together as a single class, shall be required to amend, modify or repeal or
adopt any provision inconsistent with this Article IX or any of Articles IV, V,
VI, VIII, X, or XI herein.
Section 9.2: Amendment of By-Laws. The By-Laws of the
Corporation may be altered or repealed and By-Laws may be made at any annual
meeting of the shareholders or at any special meeting thereof if notice of the
proposed alteration or repeal of By-Law or By-Laws to be made be contained in
the notice of such special meeting, by the affirmative vote of the holders of at
least 66-2/3% of the voting power of all the then outstanding Voting Stock, or
by the affirmative vote of a majority of the Board, at any regular meeting of
the Board, or at any special meeting of the Board, if notice of the proposed
alteration or repeal, or By-Law or By-Laws to be made, be contained in the
notice of such special meeting.
ARTICLE X - AFFILIATED TRANSACTIONS
The Corporation elects not to be subject to the provisions of
Florida Statutes ss. 607.0901 regarding Affiliated Transactions.
ARTICLE XI - CONTROL SHARE ACQUISITIONS
The Corporation elects not to be subject to the provisions of
the Florida Statutes ss. 607.0902, or any successor statute thereto, regarding
Control-Share Acquisitions and rescinds its prior election to be subject to said
statute.
ARTICLE XII - REGISTERED OFFICE AND AGENT
The street and mailing address of the registered office of the
Corporation is 2300 West Glades Road, West Tower, Suite 440, Boca Raton, Florida
33431 and the name and address of the registered agent is Corporation Service
Company, 1201 Hays Street, Tallahassee, Florida 32301.
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IN WITNESS WHEREOF, CRP HOLDING CORP. has caused these Amended
and Restated Articles of Incorporation this ___ day of November, 1997.
------------------------------
Charles A. Chenes, President
ATTEST:
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Kenneth Gross, Secretary
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EXHIBIT 3.2
AMENDED AND
RESTATED BY-LAWS
OF
CRP HOLDING CORP.
(As Adopted on October 9, 1997)
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of CRP Holding Corp.
(the "Corporation") shall be established and maintained at 2300 West Glades
Road, West Tower, Suite 440, Boca Raton, Florida, and the registered agent of
said corporation shall be Corporation Service Company, 1201 Hays Street,
Tallahassee, Florida 32301.
SECTION 2. OTHER OFFICES. The Corporation may have other offices, either
within or without the State of Florida, at such place or places as the Board of
Directors (the "Board") may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of shareholders for the
election of directors, and for the transaction of such other business as may
properly be brought before the meeting, shall be held at such place, either
within or without the State of Florida, and at such time and date as the Board,
by resolution, shall determine and as set forth in the notice of the meeting. In
the event the Board fails to so determine the time, date and place of meeting,
the annual meeting of shareholders shall be held at the principal executive
office of the Corporation in Florida at 10:00 a.m. on the first Tuesday in
March. If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the shareholders entitled to vote shall elect directors and transact
such other business as shall be properly brought before the meeting.
SECTION 2. SPECIAL MEETINGS. Except as otherwise fixed by or pursuant to
the provisions of the Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") relating to the rights of the holders of any class
or series of stock having a preference over the common stock, par value $.001 of
the Corporation (the "Common Stock") as
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to dividends or upon liquidation, special meetings of the shareholders may be
called at any time only by (i) the Chairman of the Board, (ii) the President,
(iii) the Board pursuant to a resolution adopted by a majority of the directors
then in office, or (iv) the holders of at least 50% of the Voting Stock of the
Corporation. Special meetings shall be held on such day, at such time and such
place either within or without the State of Florida specified in the notice
thereof. "Voting Stock" shall mean the Common Stock together with any other
shares of stock of the Corporation entitled to vote together as a single class.
SECTION 3. VOTING. Each shareholder shall be entitled to vote in accordance
with the terms of the Articles of Incorporation and in accordance with the
provisions of these By-Laws, in person or by proxy, but no proxy shall be voted
after eleven (11) months from its date unless such proxy provides for a longer
period. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest legally
sufficient to support an irrevocable power. A shareholder may revoke any proxy
which is not irrevocable by attending the meeting and voting in person or by
filing with the person recording the proceedings of the meeting an instrument in
writing revoking the proxy or another duly executed proxy bearing a later date.
Upon the demand of any shareholder, the vote for directors and the vote upon any
question before the meeting, shall be by ballot. All elections for directors
shall be decided by plurality vote; all other questions shall be decided by
majority vote except as otherwise provided by the Articles of Incorporation or
the laws of the State of Florida.
Where a separate vote by a class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to vote on that matter,
the affirmative vote of the majority of shares of such class or classes present
in person or represented by proxy at the meeting shall be the act of such class,
unless otherwise provided in the Articles of Incorporation or the laws of the
State of Florida.
SECTION 4. QUORUM. Except as otherwise required by law, by the Articles of
Incorporation or by these By-Laws, the presence, in person or by proxy, of
shareholders holding a majority of the Voting Stock, represented in person or by
proxy, shall constitute a quorum at all meetings of the shareholders. In case a
quorum shall not be present at any meeting, the chairman of the meeting or a
majority in interest of the shareholders entitled to vote thereat, present in
person or by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
amount of stock entitled to vote shall be present. At any such adjourned meeting
at which the requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at the meeting
as originally noticed; but only those shareholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof.
SECTION 5. NOTICE OF MEETINGS. Written or printed notice, stating the
place, date and time of the meeting, and the general purpose or purposes for
which the meeting is called, shall be delivered by the Corporation to each
shareholder entitled to vote thereat at his address as it appears on the records
of the Corporation, not less than ten nor more than sixty days before the date
of the meeting. Notice shall be given in the manner provided by law, by or at
the direction of the Chairman of the Board, President, Secretary or the persons
calling the meeting.
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If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail with postage thereon prepaid, addressed to the shareholder at
his address as it appears on the stock transfer books of the Corporation. Such
further notice shall be given as may be required by law. Only such business
shall be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
SECTION 6. NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(a) Annual Meetings of shareholders. Nominations of persons for
election to the Board and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (1) pursuant
to the Corporation's notice of meeting, (2) by or at the direction of the
Board or (3) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complies with the notice procedures
set forth in this By-Law.
(i) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (3) of
paragraph (a) above, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for shareholder action. To
be timely, a shareholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than
the close of business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 days before or
after such anniversary date, notice by the shareholder to be timely
must be so delivered not later than the close of business on the 10th
day following the earlier of (A) the day on which notice of the date
of the meeting was delivered to shareholders in accordance with
Section 5 of this Article II, and (B) the day on which public
announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the
giving of a shareholder's notice as described above. Such
shareholder's notice shall set forth (x) as to each person whom the
shareholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors in
an election contest or is otherwise required, in each case, pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a-11 thereunder (including
such person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected); (y) as to any
other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder
and the beneficial owner, if any, on whose behalf the proposal is
made; and (z) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal
is made (I) the name
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and address of such shareholder, as they appear on the Corporation's
books, and of such beneficial owner and (II) the class and number of
shares of stock of the Corporation which are owned beneficially and of
record by such shareholder and such beneficial owner.
(ii) Notwithstanding anything in these By-Laws to the contrary,
in the event that the number of directors to be elected to the Board
is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the
increased Board at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by
this By-Law shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by
the Corporation.
(b) Special Meetings of shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons to the Board may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (i) by or at the direction of the Board or
(ii) provided that the Board has determined that directors shall be elected
at such meeting, by any shareholder of the Corporation who is a shareholder
of record at the time of giving of notice provided for in this By-Law, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this By-Law. In the event the Corporation calls a
special meeting of shareholders for the purpose of electing one or more
directors to the Board, any such shareholder may nominate a person or
persons (as the case may be), for election to such positions as specified
in the Corporation's notice of meeting, if the shareholder's notice
required by these By-Laws shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close
of business on the 90th day prior to such special meeting and not later
than the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board to be elected at such meeting. In no event
shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as
described above.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-Law. Except as
otherwise provided by law, the Articles of Incorporation or these
By-Laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any
proposed nomination or business is not in
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compliance with this By-Law, to declare that such defective proposal
or nomination shall be disregarded.
(ii) For purposes of this By-Law, "public announcement" shall
mean disclosures in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(iii) Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-Law. Nothing in this By-Law shall be
deemed to affect any rights of shareholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
SECTION 7. SHAREHOLDERS LIST. A complete list of the shareholders entitled
to vote at any meeting of the shareholders, arranged in alphabetical order, with
the address of each, and the number of shares held by each, shall be open to the
examination of any shareholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any shareholder who is present.
SECTION 8. ADDRESSES OF SHAREHOLDERS. Each shareholder shall designate to
the Secretary of the Corporation an address to which notice of meetings and all
other corporate notices may be served upon or mailed to him, and if any
shareholder shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his last known post office address.
SECTION 9. INSPECTORS OF ELECTION. The Board may at any time appoint one or
more persons to serve as Judges of Voting at the next succeeding annual meeting
of shareholders or at any other meeting or meetings and the Board may at any
time fill any vacancy in the office of Judges of Voting. If the Board fails to
appoint Judges of Voting, or if any Judges of Voting appointed be absent or
refuse to act, or if his office becomes vacant and be not filled by the Board,
the chairman of any meeting of the shareholders may appoint one or more
temporary Judges of Voting for such meeting. All proxies shall be filed with the
Judges of Voting of the meeting before being voted upon. Each Judge, if any,
before entering upon the discharge of his or her duties, shall take and sign an
oath faithfully to execute the duties of Judge at such meeting with strict
impartiality and according to the best of his ability. The Judges, if any, shall
determine the number of shares of stock outstanding and voting power of each,
the shares of stock represented at the meeting, the existence of a quorum, and
the validity and effects of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and
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questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such acts as are proper
to conduct the election or vote with fairness to all shareholders. On request of
the person presiding at the meeting, the Judge or Judges, if any, shall make a
report in writing of any challenge, question or matter determined by such Judge
or Judges and execute a certificate of any fact found by such Judge or Judges.
No director or candidate for the office of director shall act as a Judge of an
election of directors.
SECTION 10. SHAREHOLDER ACTION WITHOUT MEETING. Any action required or
permitted to be taken by the shareholders of the Corporation at any annual or
special meeting of the shareholders may not be effected by any consent in
writing by such shareholders unless such consent shall be signed by the holders
of at least 66 2/3% of the combined voting power of the then outstanding shares
of Voting Stock or such higher vote as may be required by the Articles of
Incorporation, voting together as a single class.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER, QUALIFICATION, TERM OF OFFICE AND ELECTION. Except as
otherwise fixed by or pursuant to the provisions of the Articles of
Incorporation relating to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, the number of directors shall be such as the Board may from time to
time by resolution of a majority of the directors then in office directs but
shall consist of not more than nine nor less than three directors. Directors
need not be shareholders. The directors, other than those who may be elected by
the holders of any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation pursuant to the terms of the Articles
of Incorporation or any resolution or resolutions providing for the issue of
such class or series of stock adopted by the Board, shall be classified, with
respect to the time for which they severally hold office, into three classes, as
nearly equal in number as possible, one class to be originally elected for a
term expiring at the annual meeting of shareholders to be held in 1998, another
class to be originally elected for a term expiring at the annual meeting of
shareholders to be held in 1999, and another class to be originally elected for
a term expiring at the annual meeting of shareholders to be held in 2000, with
each class to hold office until its successors are elected and qualified. At
each annual meeting of the shareholders of the Corporation, the successors of
the class of directors whose term expires at that meeting shall be elected to
hold office for a term expiring at the annual meeting of shareholders held in
the third year following the year of their election. Each director shall hold
office for the term for which he is appointed or elected and until his
successor, if any, shall have been elected and shall have qualified, or until
his death or until he shall have resigned or shall have been removed in the
manner hereinafter provided. Directors need not be elected by ballot, except
upon demand of any shareholder.
SECTION 2. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the
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time specified therein, or if no time be specified, at the time of its
receipt by the Chairman, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice-President, or the Secretary. The acceptance of
a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. Unless the Board otherwise determines, vacancies
resulting from death, resignation, retirement, disqualification, removal from
office or other cause, and newly created directorships resulting from any
increase in the authorized number of directors, may be filled only by the
affirmative vote of a majority of the remaining directors then in office, though
less than a quorum of the Board, and directors so chosen shall hold office for a
term expiring at the annual meeting of shareholders at which the term of office
of the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the total number of directors of the
Corporation, if there were no vacancies, shall shorten the term of any incumbent
director.
SECTION 4. REMOVAL. Subject to the rights of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation,
any director, or the entire Board, may be removed from office at any time, but
only for cause and only by the affirmative vote of the holders of at least 80%
of the combined voting power of all of the then-outstanding shares of Voting
Stock, voting together as a single class.
SECTION 5. POWERS. The Board shall exercise all of the powers of the
Corporation except such as are by law, or by the Articles of Incorporation or by
these By-Laws conferred upon or reserved to the shareholders.
SECTION 6. COMMITTEES. The Board may, by resolution or resolutions adopted
by a majority of the full Board, designate one or more committees, each
committee to consist of two or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board,
or in these By-Laws, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have such power or authority in
reference to amending the Articles of Incorporation, adopting an agreement of
merger or consolidation, recommending to the shareholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution, these By-Laws or the Articles of Incorporation expressly
so provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
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SECTION 7. MEETINGS.
(a) Regular Meetings. Regular meetings of the Board may be held
without notice of the time, date, place or purpose of such meeting, at such
places and times as shall be determined from time to time by resolution of
the directors.
(b) Special Meetings. Special meetings of the Board may be called by
the Chairman, the Chief Executive Officer, the President, or by the
Secretary on the written request of any two directors on at least two
hours' notice to each director and shall be held at such place or places as
may be determined by the directors, or as shall be stated in the notice of
the meeting; provided, however, that if such meeting is held on less than
two days' notice, notice thereof must be given telephonically or by
telecopy to such director's principal place of business or personally to
such director.
(c) Participation in Meetings. Unless otherwise restricted by the
Articles of Incorporation or these By-Laws, members of the Board, or any
committee designated by the Board, may participate in a meeting of the
Board, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 8. ACTION BY THE BOARD. Any act of the Board shall require the
approval of a majority of the directors then in office unless the Articles of
Incorporation or these By-Laws shall require the vote of a greater number.
SECTION 9. COMPENSATION. By resolution of the Board, directors may receive
a stated salary for their services as directors or as members of committees, or
by resolution of the Board, a fixed fee and expenses of attendance may be
allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent or otherwise, and receiving compensation therefor.
SECTION 10. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting by the unanimous written consent of all members of the Board
then in office, or of such committee as the case may be. Such written consent
shall be filed with the minutes of proceedings of the Board or committee.
SECTION 11. GENERAL STANDARDS FOR DIRECTORS.
(a) A director shall discharge his duties as a director, including his
duties as a member of any committee of the Board upon which he may serve,
in good faith, with the care of an ordinarily prudent person in a like
position would exercise under similar circumstances, and in a manner he
reasonably believes to be in the best interests of the Corporation.
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(b) In discharging his duties, a director shall be entitled to rely
on information, opinions, reports or statements, including financial
statements and other financial data, in each case prepared or presented
by:
(i) one or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in the
matters presented;
(ii) legal counsel, public accountants or other persons as to
matters which the director reasonably believes to be within such
persons' professional or expert competence; or
(iii) a committee of the Board upon which he does not serve, duly
designated in accordance with a provision of the Articles of
Incorporation or these By-Laws, as to matters within its designated
authority, which committee the director reasonably believes to merit
confidence.
(c) A director shall not be considered to be acting in good faith if
he has knowledge concerning the matter in question that would cause such
reliance described above to be unwarranted.
(d) In discharging his duties, a director may consider such factors as
the director deems relevant, including the long term prospects and
interests of the Corporation, and its shareholders, and the social,
economic, legal, or other effects of any action on the employees,
suppliers, 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 of the nation.
(e) A person who performs his duties in compliance with this Section
11 shall have no liability for any action taken as a director, or any
failure to take any action, if he performed the duties of his office in
compliance with this Section 11.
SECTION 12. DIRECTORS CONFLICTS OF INTEREST. No contract or other
transaction between this Corporation and one or more of its directors or any
other corporation, firm, association, or entity in which one or more of the
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 are present at the meeting of the Board 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 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; or
(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 sufficient for the
purpose, excluding shares held by such interested director; 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.
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Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or
transaction.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be a Chairman,
the Chief Executive Officer, the Chief Financial Officer, the President, and a
Secretary, all of whom shall be elected by the Board and who shall hold office
until their successors are elected and qualified. None of the officers of the
Corporation need be directors. The Chairman shall be chosen from among the
directors. All officers elected by the Board shall each have such powers and
duties as generally pertain to their respective offices, subject to the specific
provisions of this Article IV. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board or by any committee
thereof. The officers shall be elected at the first meeting of the Board after
each annual meeting. More than two offices may be held by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. Only the elected officers of the
Corporation shall be elected annually by the Board at the regular meeting of the
Board held after the annual meeting of the shareholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as convenient. Each officer shall hold office until his successor
shall have been duly elected and shall have qualified or until his earlier
death, or resignation, but any officer (other than the Chairman or the Chief
Executive Officer) may be removed from office at any time, with or without
cause, by either the affirmative vote of a majority of the directors then in
office or by the Chairman or the Chief Executive Officer. The Chairman and the
Chief Executive Officer may be removed from office, with or without cause, only
by the affirmative vote of a majority of the directors then in office. Such
removal or resignation shall be without prejudice to the contractual rights, if
any, of the person so removed.
SECTION 3. OTHER OFFICERS AND AGENTS. The Board or any committee thereof
may elect, from time to time, and the Chairman and the Chief Executive Officer
may appoint, from time to time, such other officers and agents as it may deem
advisable, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as provided in these By-Laws, or as may be
prescribed by the Board or any committee thereof, or the Chairman or the Chief
Executive Officer, as the case may be.
SECTION 4. CHAIRMAN. The Chairman-of the Board, shall preside, if present,
at all meetings of the shareholders and at all meetings of the Board and he
shall perform such other duties and have such other powers as may from time to
time be designated and assigned to him by the Board.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief Executive officer shall have
general direction of the affairs of the Corporation and general supervision over
its several
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officers, subject, however, to the control of the Board. He shall at each annual
meeting and from time to time report to the shareholders and to the Board all
matters within his knowledge which the interest of the Corporation may require
to be brought to their notice; may sign with the Secretary or an Assistant
Secretary any or all certificates of stock of the Corporation; in the absence of
the Chairman, shall preside at all meetings of the shareholders and at all
meetings of the Board; shall have the power to sign and execute in the name of
the Corporation all contracts, or other instruments authorized by the Board, and
in general shall perform all duties incident to the office of Chief Executive
Officer and such other duties as from time to time may be assigned to him by the
Board or as are prescribed by these By-Laws.
SECTION 6. CHIEF FINANCIAL OFFICER. The Chief Financial officer shall have
charge and custody of, and be responsible for, all funds and securities of the
Corporation, and deposit all such funds in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of these By-Laws; at all reasonable times exhibit his books
of account and records, and cause to be exhibited the books of account and
records of any corporation controlled by the Corporation, to any of the
directors of the Corporation upon application during business hours at the
office of the Corporation, or such other corporation where such books and
records are kept; render a statement of the condition of the finances of the
Corporation at all regular meetings of the Board and a full financial report at
the annual meeting of shareholders; if called upon to do so, receive and give
receipts for moneys due and payable to the Corporation from any source
whatsoever; may sign with a secretary or Assistant Secretary certificates of
stock of the Corporation; and, in general, perform all the duties incident to
the office of Chief Financial Officer and such other duties as from time to time
may be assigned to him by the Board or the Chief Executive Officer.
SECTION 7. PRESIDENT AND VICE-PRESIDENTS. The President and any
Vice-Presidents shall have such powers and shall perform such duties as may from
time to time be assigned to him by the Board or by the Chief Executive Officer;
and shall have the power to sign and execute in the name of the Corporation all
contracts or other instruments authorized by the Board, except where the Board
or the By-Laws shall expressly delegate or permit some other officer to do so.
The President and Vice-Presidents may also sign with the Secretary or an
Assistant Secretary certificates of stock of the Corporation.
SECTION 8. SECRETARY. The Secretary shall keep or cause to be kept the
minutes of the meetings of the shareholders, of the Board and of any committee
when so required; shall see that all notices are duly given in accordance with
the provisions of these By-Laws and as required by law; shall be custodian of
the corporate records and of the seal of the Corporation and see that the seal
is affixed to all documents on which it is required, the execution of which on
behalf of the Corporation under its seal is duly authorized in accordance with
the provisions of the By-Laws; shall keep or cause to be kept a register of the
post office address of each shareholder; may sign with the Chairman, Chief
Executive Officer, Chief Financial Officer, the President, or any Vice-President
certificates of stock of the Corporation; and, in general, the Secretary shall
perform all duties incident to the office of Secretary and such other duties as
may from time to time be assigned to him by the Board or by the Chief Executive
Officer.
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SECTION 9. ASSISTANT SECRETARIES. At the request of the Secretary, or in
his absence or disability, an Assistant Secretary shall perform the duties of
the Secretary and, when so acting, shall have all the powers of, and be subject
to all the restrictions upon, the Secretary. An Assistant Secretary shall
perform such other duties as from time to time may be assigned to him by the
Chief Executive Officer, the Secretary, or the Board.
SECTION 10. REMOVAL. Subject to Section 2 of this Article IV, any officer
elected, or agent appointed, by the Board may be removed by the affirmative vote
of a majority of the directors then in office whenever, in their judgment, the
best interests of the Corporation would be served thereby. Any officer or agent
appointed by the Chairman or the Chief Executive Officer may be removed by him
whenever, in his judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee deferred compensation plan.
SECTION 11. VACANCIES. A newly created elected office and a vacancy in any
elected office because of the death, resignation, or removal may be filled by
the Board for the unexpired portion of the term at any meeting of the Board. Any
vacancy in an office appointed by the Chairman or the Chief Executive Officer
because of death, resignation, or removal may be filled by the Chairman or the
Chief Executive Officer.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, may be signed by
the Chairman, Chief Executive Officer, Chief Financial Officer, the President,
or any Vice-President, and the Secretary or an Assistant Secretary, shall be
issued to each shareholder certifying the number of shares owned by him in the
Corporation. Any of or all the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in
the place of any certificate theretofore issued by the Corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion, require
the owner of the lost or destroyed certificate, or his legal representatives, to
give the Corporation a bond, in such sum as they may direct, not exceeding
double the value of the stock, to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss of any such
certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the Corporation shall
be transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer the
old certificates shall be surrendered to the Corporation by the delivery thereof
to the person in charge of the stock and transfer books
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and ledgers, or to such other person as the directors may designate, by whom
they shall be cancelled, and new certificates shall thereupon be issued. A
record shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. SHAREHOLDERS RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting (if permitted) , or entitled to receive
payment of any dividend or other distribution or allotment or any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purposes of any other lawful action, the Board may fix, in
advance, a record date, which shall not be more than seventy days prior to the
meeting or action requiring a determination by shareholders. A determination of
shareholders entitled to notice or to vote at a shareholders' meeting shall
apply to any adjournment of the meeting; provided, however, that the Board may
fix a new record date for the adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of law and the Articles of
Incorporation, the Board may, out of funds legally available therefor at any
regular or special meeting, declare dividends upon the capital stock of the
Corporation as and when they deem expedient. Before declaring any dividend there
may be set apart out of any funds of the Corporation available for dividends
such sum or sums as the directors from time to time in their discretion deem
proper for working capital or as a reserve fund to meet contingencies or for
equalizing dividends or for such other purposes as the directors shall deem
conducive to the interests of the Corporation.
SECTION 6. SEAL. The corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation and the words
"CORPORATE SEAL FLORIDA." Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board.
SECTION 8. CHECKS. All checks, drafts, or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time by
resolution of the Board.
SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by
these By-Laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage prepaid, addressed to the
person entitled thereto at his address as it appears on the records of the
Corporation, and such notice shall be deemed to have been given on the day of
such mailing. Shareholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by statute.
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Whenever any notice whatsoever is required to be given under the provisions
of any law, or under the provisions of the Articles of Incorporation of the
Corporation or these By-Laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
SECTION 10. VOTING OF SHARES IN OTHER CORPORATION. Shares in other
corporations which are held by the Corporation may be represented and voted by
the Chairman, the Chief Executive Officer, the Chief Financial Officer, the
President, or any Vice-President, in person or by proxy or proxies appointed by
one of them, subject, however, to the right of the Board to appoint some other
person to vote the shares.
ARTICLE VI
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made at any
annual meeting of the shareholders or at any special meeting thereof if notice
of the proposed alteration or repeal of By-Law or By-Laws to be made be
contained in the notice of such special meeting, by the affirmative vote of the
holders of at least 66-2/3% of the voting power of all the then outstanding
Voting Stock, or by the affirmative vote of a majority of the Board, at any
regular meeting of the Board, or at any special meeting of the Board, if notice
of the proposed alteration or repeal, or By-Law or By-Laws to be made, be
contained in the notice of such special meeting.
ARTICLE VII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION RESPECTING THIRD PARTY CLAIMS.
(a) The Corporation, to the full extent permitted, and in the manner
required, by the laws of the State of Florida as in effect on the effective
date of these Amended and Restated By-Laws or as such laws may be amended
from time to time, shall indemnify, in accordance with the following
provisions of this Article VII, any person who was or is made a party to or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (including any appeal thereof), whether civil,
criminal, administrative, regulatory or investigative in nature (other than
an action by or in the right of the Corporation) , by reason of the fact
that such person is or was a director or officer of the Corporation, or, if
at a time when he or she was a director or officer of the Corporation, is
or was, serving at the request of the Corporation as a director, officer,
partner, trustee, fiduciary, employee or agent (a "Subsidiary Officer") of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise (an "Affiliated Entity"), against expenses
(including attorneys' fees and disbursements), costs, judgments, fines,
penalties and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding
(including any appeal thereof) if such person acted in good faith and in a
manner which such person 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; provided, however, that (i) the Corporation shall not be
obligated to indemnify a director or officer of the Corporation or a
Subsidiary Officer of
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any Affiliated Entity against expenses incurred in connection with an
action, suit, proceeding or investigation to which such person is
threatened to be made a party but does not become a party unless such
expenses were incurred with the approval of the Chairman, the Chief
Executive Officer, the Chief Financial Officer, or the Board or a committee
thereof and (ii) the Corporation shall not be obligated to indemnify
against any amount paid in settlement unless the Chairman, the Chief
Executive Officer, the Chief Financial Officer, or the Board or a committee
thereof has consented to such settlement. The termination of any action,
suit or proceeding by judgment, order, settlement or conviction or upon a
plea of nolo contendre or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
such person reasonably believed to be in, or not opposed to, the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, that such person had reasonable cause to believe that his or
her conduct was unlawful. Notwithstanding anything to the contrary in the
foregoing provisions of this Section l(a), a person shall not be entitled,
as a matter of right, to indemnification pursuant to this Section l(a)
against costs or expenses incurred in connection with any action, suit or
proceeding commenced by such person against the Corporation or any
Affiliated Entity or any person who is or was a director, officer,
fiduciary, employee or agent of the Corporation or a Subsidiary Officer of
any Affiliated Entity, but such indemnification may be provided by the
Corporation in a specific case as permitted by Section 6 below in this
Article VII.
(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent than it shall
indemnify any director or officer under Section 1(a) above in this Article
VII.
SECTION 2. INDEMNIFICATION RESPECTING DERIVATIVE CLAIMS.
(a) The Corporation, to the full extent permitted, and in the manner
required, by the laws of the State of Florida as in effect on the effective
date of these Amended and Restated By-Laws or as such laws may be amended
from time to time, shall indemnify, in accordance with the following
provisions of this Article VII, any person who was or is made a party to or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding (including any appeal thereof) brought 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 or officer of the
Corporation, or is or was serving at the request of the Corporation as a
Subsidiary Officer of an Affiliated Entity against expenses (including
attorneys' fees and disbursements) and costs actually and reasonably
incurred by such person in connection with the defense or settlement of
such action, suit, or proceeding (including any appeal thereof), not
exceeding, in the judgment of the Board, the estimated expense of
litigating the proceeding to conclusion, if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless, and only
to the extent that, the court in which such action, suit or 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 and costs as the court shall deem proper;
provided, however, that the Corporation shall not be obligated to indemnify
a director or officer of the Corporation or a Subsidiary Officer of any
Affiliated Entity against expenses incurred in connection with an action or
suit to which such person is threatened to be made a party but does not
become a party unless such expenses were incurred with the approval of the
Chairman, the Chief Executive Officer, the Chief Financial Officer, or the
Board or a committee
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thereof. Notwithstanding anything to the contrary in the foregoing
provisions of this Section 2 (a), a person shall not be entitled, as a
matter of right, to indemnification pursuant to this Section 2 (a) against
costs and expenses incurred in connection with any action or suit in the
right of the Corporation commenced by such person, but such indemnification
may be provided by the Corporation in any specific case as permitted by
Section 6 below in this Article VII.
(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent that it shall
indemnify any director or officer under Section 2(a) above in this Article
VII.
SECTION 3. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Any
indemnification to be provided under any of Sections 1(a), l(b), 2(a) or 2(b)
above in this Article VII (unless ordered by a court of competent jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification is proper under the circumstances because
such person had met the applicable standard of conduct set forth in such Section
of this Article VII. Such determination shall be made (i) by the Board by a
majority vote of a quorum consisting of directors who were not parties to the
action, suit or proceeding in respect of which indemnification is sought or by
majority vote of the members of a committee of the Board composed of at least
two members each of whom is not a party to such action, suit or proceeding, or
(ii) if such a quorum is not obtainable and/or such a committee is not
established or obtainable, or, even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(iii) by the affirmative vote of a quorum consisting of the holders of a
majority of the holders of Common Stock not parties to such proceeding, or, if
no such quorum is obtainable, by a majority of holders of Common Stock who were
not parties to such proceeding. In the event a request for indemnification is
made by any person referred to in Sections 1(a) or 2(a) above in this Article
VII, the Corporation shall use its best efforts to cause such determination to
be made not later than 60 days after such request is made.
SECTION 4. RIGHT TO INDEMNIFICATION UPON SUCCESSFUL DEFENSE AND FOR SERVICE
AS A WITNESS.
(a) Notwithstanding the other provisions of this Article VII, 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 proceeding referred to in any of Sections 1 (a) , 1 (b) , 2 (a) or 2 (b)
above in this Article VII, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees and disbursements) and costs actually and reasonably
incurred by such person in connection therewith.
(b) To the extent any person who is or was a director or officer of
the Corporation in office on the effective date of these Amended Restated
By-Laws or thereafter has served or prepared to serve as a witness in any
action, suit or proceeding (whether civil, criminal, administrative,
regulatory or investigative in nature) , including any investigation by any
legislative body or any securities or commodities exchange of which the
Corporation is a member or to the jurisdiction of which it is subject, by
reason of his or her services as a director or officer of the Corporation
or his or her service as a Subsidiary Officer of an Affiliated Entity at a
time when he or she was a director or
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officer of the Corporation (assuming such person is or was, as evidenced by
a writing to such effect, serving at the request of, or to represent the
interests of, the Corporation as a Subsidiary Officer of such Affiliated
Entity), but excluding service as a witness in an action or suit commenced
by such person, the Corporation shall indemnify such person against
expenses (including attorneys, fees and disbursements) and out-of-pocket
costs actually and reasonably incurred by such person in connection
therewith and shall use its best efforts to provide such indemnity within
60 days after receipt by the Corporation from such person of a statement
requesting such indemnification, averring such service and reasonably
evidencing such expenses and costs; it being understood, however, that the
Corporation shall have no obligation under this Article VII to compensate
such person for such person's time or efforts so expended. The Corporation
may indemnify any employee or agent of the Corporation in the manner and to
the same or lesser extent as it may indemnify any director or officer of
the Corporation pursuant to the foregoing sentence of this paragraph.
SECTION 5. ADVANCE OF EXPENSES.
(a) Expenses and costs incurred by any person referred to in Sections
1(a) or 2(a) above in this Article VII in defending a civil, criminal,
administrative, regulatory or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking in writing
by or on behalf of such person to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified in respect
of such costs and expenses by the Corporation as authorized by this Article
VII. Such expenses (including attorneys' fees) incurred by other employees
and agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Board may deem appropriate.
(b) Expenses and costs incurred by any person referred to in Sections
l(b) or 2(b) above in this Article VII in defending a civil, criminal,
administrative, regulatory or investigative action, suit or proceeding may
be paid by the corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board or a committee
thereof authorized to so act by the Board upon receipt of an undertaking in
writing by or on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified
by the Corporation in respect of such costs and expenses as authorized by
this Article VII.
SECTION 6. INDEMNIFICATION NOT EXCLUSIVE. The provision of indemnification
to or the advancement of expenses and costs to any person under this Article
VII, or the entitlement of any person to indemnification or advancement of
expenses and costs under this Article VII, shall not limit or restrict in any
way the power of the Corporation to indemnify or advance expenses and costs to
such person in any other way permitted by law or be deemed exclusive of, or
invalidate, any right to which any person seeking indemnification or advancement
of expenses and costs may be entitled under any law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in such
person's capacity as an officer, director, employee or agent of the Corporation
and as to action in any other capacity.
SECTION 7. CORPORATE OBLIGATIONS; RELIANCE. The provisions of Section l
through 6 above of this Article VII shall be deemed to create a binding
obligation on the part of the Corporation to the officers and directors of the
Corporation on the effective date of these Amended and Restated By-Laws and
persons thereafter elected as officers and directors
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(including persons who served as officers and directors on or after such date
but are no longer officers and directors at the time they present claims for
advancement of expenses or indemnity), and such persons in acting in their
capacities as officers or directors of the Corporation or Subsidiary Officers of
any Affiliated Entity shall be entitled to rely on such provisions of this
Article VII, without giving notice thereof to the Corporation.
SECTION 8. SUCCESSORS. The right of any person who is or was a director,
officer, employee or agent of the Corporation to indemnification or advancement
of expenses under Sections l through 7 above in this Article VII shall continue
after he or she shall have ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, distributees, executors,
administrators and other legal representatives of such person.
SECTION 9. INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of, or to represent the
interests of, the Corporation as a Subsidiary Officer of any Affiliated Entity,
against any liability asserted against such person and incurred by such person
in any 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 such
liability under the provisions of this Article VII or applicable law.
SECTION 10. DEFINITIONS OF CERTAIN TERMS.
(a) For purposes of the Article VII, references to "the Corporation"
shall include any constituent corporation (including any constituent of a
constituent) absorbed into the Corporation after the effective date of
these Amended and Restated By-Laws in a consolidation or merger if such
corporation would have been permitted (if its corporate existence had
continued) under applicable law to indemnify its directors, officers,
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at
the request, or to represent the interests of, such constituent corporation
as a director, officer, employee or agent of any Affiliated Entity shall
stand in the same position under the provisions of Sections l through 9
above in this Article VII with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued; provided, however,
that, no such person shall be entitled to indemnity from the corporation in
respect of his or her service to such constituent Corporation, or at the
request of such constituent corporation, pursuant to Sections l(a) or 2(a)
above but may be indemnified by the Corporation in respect thereof as
permitted by Sections l(b) or 2(b) above.
(b) For purposes of this Article VII, references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; references to "serving at the request of the Corporation"
shall include any service as a director, officer, trustee, fiduciary,
employee or agent of the Corporation or any Affiliated Entity which service
imposes duties on, or involves services by, such director, officer,
trustee, fiduciary, employee or agent with respect to any employee benefit
plan, its participants, or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interest of the
Corporation" as referred to in this Article VII.
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