<PAGE> 1
Exhibit 1.4
* * * * * * *
BY-LAWS
OF
BIODYNAMICS INTERNATIONAL (UNITED STATES), INC.
* * * * * * *
<PAGE> 2
BY-LAWS
OF
BIODYNAMICS INTERNATIONAL (UNITED STATES), INC.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Title Page
----- ----
<S> <C>
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......................................................................... 2
Section H. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING...................................... 2
Section I. VOTING ON MATTERS OTHER THAN ELECTION OF DIRECTORS............................. 2
Section J. VOTING FOR DIRECTORS........................................................... 2
Section K. VOTING LISTS................................................................... 2
Section L. VOTING OF SHARES............................................................... 2
Section M. PROXIES........................................................................ 3
Section N. INFORMAL ACTION BY STOCKHOLDERS................................................ 3
Section O. INSPECTORS..................................................................... 3
ARTICLE III.......................................................................................... 3
Board of Directors................................................................................... 3
Section A. GENERAL POWERS................................................................. 3
Section B. NUMBER, TENURE AND QUALIFICATIONS.............................................. 3
Section C. ANNUAL MEETING................................................................. 3
Section D. REGULAR MEETINGS............................................................... 4
Section E. SPECIAL MEETINGS............................................................... 4
Section F. NOTICE......................................................................... 4
Section G. QUORUM......................................................................... 4
Section H. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING...................................... 4
Section I. MANNER OF ACTING............................................................... 4
Section J. REMOVAL........................................................................ 4
Section K. VACANCIES...................................................................... 4
Section L. COMPENSATION................................................................... 4
Section M. PRESUMPTION OF ASSENT.......................................................... 4
Section N. INFORMAL ACTION BY BOARD....................................................... 5
Section O. MEETING BY TELEPHONE, ETC...................................................... 5
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE IV........................................................................................... 5
Officers ............................................................................................ 5
Section A. NUMBER......................................................................... 5
Section B. APPOINTMENT AND TERM OF OFFICE................................................. 5
Section C. RESIGNATION.................................................................... 5
Section D. REMOVAL........................................................................ 5
Section E. VACANCIES...................................................................... 5
Section F. DUTIES OF OFFICERS............................................................. 5
Section G. SALARIES....................................................................... 6
Section H. DELEGATION OF DUTIES........................................................... 6
Section I. DISASTER EMERGENCY POWERS OF ACTING OFFICERS................................... 6
ARTICLE V............................................................................................ 6
Executive and Other Committees....................................................................... 6
Section A. CREATION OF COMMITTEES......................................................... 6
Section B. EXECUTIVE COMMITTEE............................................................ 6
Section C. OTHER COMMITTEES............................................................... 7
Section D. REMOVAL OR DISSOLUTION......................................................... 7
Section E. VACANCIES ON COMMITTEES........................................................ 7
Section F. MEETINGS OF COMMITTEES......................................................... 7
Section G. ABSENCE OF COMMITTEE MEMBERS................................................... 7
Section H. QUORUM OF COMMITTEES........................................................... 7
Section I. MANNER OF ACTING OF COMMITTEES................................................. 7
Section J. MINUTES OF COMMITTEES.......................................................... 7
Section K. COMPENSATION................................................................... 7
Section L. INFORMAL ACTION................................................................ 7
ARTICLE VI........................................................................................... 7
Indemnification of Directors and Officers............................................................ 7
Section A. GENERAL........................................................................ 7
Section B. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.................................. 8
Section C. OBLIGATION TO INDEMNIFY........................................................ 8
Section D. DETERMINATION THAT INDEMNIFICATION IS PROPER................................... 8
Section E. EVALUATION AND AUTHORIZATION................................................... 9
Section F. PREPAYMENT OF EXPENSES......................................................... 9
Section G. NONEXCLUSIVITY AND LIMITATIONS................................................. 9
Section H. CONTINUATION OF INDEMNIFICATION RIGHT.......................................... 9
Section I. INSURANCE...................................................................... 9
ARTICLE VII.......................................................................................... 9
Interested Parties................................................................................... 9
Section A. GENERAL........................................................................ 9
Section B. DETERMINATION OF QUORUM........................................................ 10
Section C. APPROVAL BY STOCKHOLDERS....................................................... 10
ARTICLE VIII......................................................................................... 10
Certificates of Stock................................................................................ 10
Section A. CERTIFICATES FOR SHARES........................................................ 10
Section B. SIGNATURES OF PAST OFFICERS.................................................... 10
Section C. TRANSFER AGENTS AND REGISTRARS................................................. 10
Section D. TRANSFER OF SHARES............................................................. 10
Section E. LOST CERTIFICATES.............................................................. 11
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE IX........................................................................................... 11
Record Date.......................................................................................... 11
Section A. RECORD DATE FOR STOCKHOLDER ACTIONS............................................ 11
Section B. RECORD DATE FOR DIVIDEND AND OTHER DISTRIBUTIONS............................... 11
ARTICLE X............................................................................................ 12
Dividends............................................................................................ 12
ARTICLE XI........................................................................................... 12
ARTICLE XII.......................................................................................... 12
Seal................................................................................................. 12
ARTICLE XIII......................................................................................... 12
Stock in Other Corporations.......................................................................... 12
ARTICLE XIV.......................................................................................... 12
Amendments........................................................................................... 12
ARTICLE XV........................................................................................... 12
Emergency By-laws.................................................................................... 12
Section A. SCOPE OF EMERGENCY BY-LAWS..................................................... 12
Section B. CALL AND NOTICE OF MEETING..................................................... 13
Section C. QUORUM AND VOTING.............................................................. 13
Section D. APPOINTMENT OF TEMPORARY DIRECTORS............................................. 13
Section E. MODIFICATION OF LINES OF SUCCESSION............................................ 13
Section F. CHANGE OF PRINCIPAL OFFICE..................................................... 13
Section G. LIMITATION OF LIABILITY........................................................ 13
Section H. REPEAL AND CHANGE.............................................................. 13
</TABLE>
<PAGE> 5
BY-LAWS
OF
BIODYNAMICS INDUSTRIES, INC.
ARTICLE I.
Offices
Section A. PRINCIPAL OFFICE. The principal office of the corporation
shall be in the City of Tampa, County of Hillsborough, and 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. The annual meeting of the stockholders
shall be held between January 1 and December 31, inclusive, in each year 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 President or the Board of
Directors and shall be called by the President or the Secretary if the holders
of not less than 10 percent 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 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 first-class 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
President, the Secretary, the Board of Directors, or the person(s) calling the
meeting. If mailed via first-class United States mail, 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.
<PAGE> 6
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. Except as otherwise provided in these by-laws or in
the Articles of Incorporation, a majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at any meeting of the stockholders. Once a share is
represented for any purpose at a meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting, unless a new record date is or must be set for that adjourned meeting,
and the withdrawal of stockholders after a quorum has been established at a
meeting shall not effect the validity of any action taken at the meeting or any
adjournment thereof.
Section H. ADJOURNMENT; QUORUM FOR ADJOURNED MEETING. If less than a
majority of the outstanding shares are represented at a meeting, a majority of
the shares so represented may adjourn the meeting from time to time without
further notice. 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. VOTING ON MATTERS OTHER THAN ELECTION OF DIRECTORS. At any
meeting at which a quorum is present, action on any matter other than the
election of directors shall be approved if the votes cast by the holders of
shares represented at the meeting and entitled to vote on the subject matter
favoring the action exceed the votes cast opposing the action, unless a greater
number of affirmative votes or voting by classes is required by these by-laws,
the Articles of Incorporation or by law.
Section J. VOTING FOR DIRECTORS. 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.
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.
2
<PAGE> 7
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 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 one or more consents in writing, setting forth the
action so taken, shall be signed by stockholders holding shares representing
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. 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 consent
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. INSPECTORS. For each meeting of the stockholders, the Board
of Directors or the President 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 President 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.
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 the next annual meeting of stockholders and
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. 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.
3
<PAGE> 8
Section D. 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 E. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if there be one, 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.
Section F. 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 G. QUORUM. A majority of the total number of directors as
determined from time to time shall constitute a quorum.
Section H. 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 from time to time 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 I. 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 J. 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 K. VACANCIES. Any vacancy occurring in the Board of Directors,
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, though less than a quorum of the Board of Directors, or by the
stockholders, unless otherwise provided in the Articles of Incorporation. A
director elected to fill a vacancy shall be elected for the unexpired term of
such director's predecessor in office.
Section L. 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.
Section M. 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
4
<PAGE> 9
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 N. 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 O. MEETING BY TELEPHONE, ETC. Directors or the members of any
committee thereof 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
President, a Secretary and a Treasurer, each of whom shall be appointed by the
Board of Directors. The Board of Directors may also appoint a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers and such other officers as the Board of Directors shall
deem appropriate. The same individual may simultaneously hold more than one
office in the corporation.
Section B. APPOINTMENT AND TERM OF OFFICE. The 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. 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 shall have qualified, unless such
officer sooner dies, resigns or is removed by the Board. The appointment of an
officer does not itself create contract rights.
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 with or without cause. Any officer or assistant officer, if appointed
by another officer, may likewise be removed by such officer. 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 for the unexpired portion of the term.
Section F. DUTIES OF OFFICERS. The Chairman of the Board of the
corporation, or the President if there shall not be a Chairman of the Board,
shall preside at all meetings of the Board of Directors and of the
stockholders. The President shall be the chief executive officer of the
corporation. The Secretary shall be responsible for preparing minutes of the
directors' and stockholders' meetings and for authenticating records of the
corporation. Subject to the foregoing, the officers of the corporation shall
have such powers and duties as ordinarily pertain to their respective offices
and such additional powers and duties specifically conferred by law, the
Articles of Incorporation and these by-laws, or as may be
5
<PAGE> 10
assigned to them from time to time by the Board of Directors or an officer
authorized by the Board of Directors to prescribe the duties of other officers.
Section G. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors, 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.
Section H. 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 or to any other director for the time being.
Section I. 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 President is unable to perform the duties of the office of President and/or
other officers are unable to perform their duties, (a) the powers and duties of
President 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 that Vice
President who shall be available and capable of holding and performing such
powers and duties whose surname commences with the earliest letter of the
alphabet among all such Vice Presidents; or, if no Vice President is available
and capable of holding and performing such powers and duties, then by the
Secretary; or, if the Secretary is likewise unavailable, by the Treasurer; (b)
the officer so selected to hold and perform such powers and duties shall serve
as Acting President until the President again becomes capable of holding and
performing the powers and duties of President, or until the Board of Directors
shall have elected a new President or designated another individual as Acting
President; (c) such officer (or the President, if such person is still serving)
shall have the power, in addition to all other powers granted to the President
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 President 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 an Executive Committee and one or more other 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.
6
<PAGE> 11
Section C. OTHER COMMITTEES. 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 D. 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 E. 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 F. 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 F of Article III of these
by-laws (pertaining to notice for directors' meetings).
Section G. 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 H. 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 I. 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
Board of Directors present at the meeting shall be the act of such committee.
Section J. 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 K. COMPENSATION. Members of any committee of the Board of
Directors may be paid compensation in accordance with the provisions of Section
L of Article III of these by-laws (pertaining to compensation of directors).
Section L. 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 N and O 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, or is threatened
to be made 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 or officer 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
7
<PAGE> 12
expenses (including attorneys' fees, paralegals' fees and court costs) 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 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 such person's 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 the person did
not act in good faith and in a manner that 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, had reasonable cause to believe that such
person's 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, or is threatened to be made 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 or officer of the corporation or is or was serving at the request
of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees, paralegals' fees and court costs) 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 such
person 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 or
officer 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,
upon application, be indemnified against expenses (including attorneys' fees,
paralegals' fees and court costs) 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 under the provisions of Section C of this Article VI or unless otherwise
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 the indemnified 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.
8
<PAGE> 13
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 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 attorneys' fees,
paralegals' fees and court costs) 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.
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 office with the corporation, and shall
continue as to any person who has ceased to be a director or officer and shall
inure to the benefit of such person's heirs and personal representatives. The
Board of Directors may, at any time, approve indemnification of or advancement
of expenses to any other person that the corporation has the power by law to
indemnify, including, without limitation, employees and agents of the
corporation. In all cases not specifically provided for in this Article VI,
indemnification or advancement of expenses shall not be made 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 or
officer 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 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
9
<PAGE> 14
or because such director's or directors' votes are counted for such purpose if:
(a) the fact of such relationship or interest is disclosed or known to the Board
of Directors or committee which authorizes, approves or ratifies the contract or
transaction by a vote or consent sufficient for the purpose without counting the
votes or consents of such interested directors; (b) the fact of such
relationship or interest is disclosed or known to the stockholders entitled to
vote on the matter, and they authorize, approve or ratify such contract or
transaction by vote or written consent; or (c) the contract or transaction is
fair and reasonable as to the corporation at the time it is authorized by the
Board of Directors, a committee thereof or the stockholders.
Section B. DETERMINATION OF QUORUM. 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 a
contract or transaction referred to in Section A of this Article VII.
Section C. APPROVAL BY STOCKHOLDERS. For purposes of Section A(b) 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
described in Section A of this Article VII 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(b) 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 described in Section A of this Article VII, 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
those shares that would be entitled, if present, 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
shall be made upon its books by the holder of the shares in person or by the
holder's lawfully constituted representative,
10
<PAGE> 15
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.
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.
11
<PAGE> 16
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 be the period selected by the
Board of Directors as the taxable year of the corporation for federal income tax
purposes, 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 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
12
<PAGE> 17
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.
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 President or his successor,
as determined pursuant to Section I of Article IV herein shall be deemed a
Temporary Director of the corporation, and such President 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 I 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
13
<PAGE> 18
or change shall modify the provisions of Section F 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.
14
