Restated Bylaws of
Vista Vacations International, Inc.
ARTICLE I
STOCKHOLDERS
SECTION 1. Annual Meetings
(a) (1) The annual meeting of the stockholders of the Corporation
shall be held at the principal office of the Corporation in
the State of Florida or at such other place within or without
the State of Florida as may be determined by the Board of
Directors and as may be designated in the notice of such
meeting; provided that, whenever this Corporation is the
subsidiary of another corporation that holds a majority of
this Corporation's common stock (a "Parent Corporation"), then
the annual meeting shall be held at the place where the Parent
Corporation holds its annual meeting.
(2) The meeting shall be held on the 15th day of July of each year
or on such other day as the Board of Directors may specify;
provided that, whenever this Corporation is the subsidiary of
a Parent Corporation, then the annual meeting shall be held
immediately after the organizational meeting of the Parent
Corporation's Board of Directors immediately following the
Parent Corporation's annual meeting.
(3) If said day is a legal holiday, the meeting shall be held on
the next succeeding business day not a legal holiday.
(b) Business to be transacted at such meeting shall be the election of
members of the Corporation's Board of Directors to succeed those whose
terms are expiring and such other business as may be properly brought
before the meeting.
(c) In the event that the annual meeting, by mistake or otherwise, shall
not be called and held as herein provided, a special meeting may be
called as provided for in Section 2 of this Article I in lieu of and
for the purposes of and with the same effect as the annual meeting.
(d) In the event that the Corporation becomes subject to compliance with
requirements imposed under Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), proposals by stockholders
for action at an annual meeting must be submitted to the Corporation's
principal executive offices so that they are received thereat on or
before the 120th day prior to the annual anniversary of the last
preceding annual meeting, unless such proposal relates to the
nomination of members of the Corporation's Board of Directors, in
which case it must be submitted to the Corporation's principal
executive offices so that the name, address, telephone number and if
available, fax number and e-mail address of the nominee, together with
biographical data covering the nominees activities during the
preceding five years satisfying the disclosure requirements of
Regulation SB are received thereat on or before the 60th day prior to
the time that the Corporation first files materials with the
Commission pertaining to such meeting on either Schedule 14A or 14C
promulgated under authority of the Exchange Act.
This instrument is the property of The Yankee Companies, Inc., a Florida
corporation, and has been licensed for use by Vista Vacations, Inc., only for
its own corporate governance purposes. No one may utilize this form or any
derivations thereof without the prior written consent of The Yankee Companies,
Inc..
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SECTION 2. Special Meetings
(a) A special meeting of the stockholders of the Corporation may be called
for any purpose or purposes at any time by the Chairman or President of
the Corporation, by the Board of Directors or by the holders of not
less than 10% of the outstanding capital stock of the Corporation
entitled to vote at such meeting.
(b) (1) At any time, upon the written direction of any person or
persons entitled to call a special meeting of the
stockholders, it shall be the duty of the Secretary to send
notice of such meeting pursuant to Section 4 of this Article
I.
(2) It shall be the responsibility of the person or persons
directing the Secretary to send notice of any special meeting
of stockholders to deliver such direction and a proposed form
of notice to the Secretary not less than 15 days prior to the
proposed date of said meeting.
(c) Special meetings of the stockholders of the Corporation shall be held
at such place, within or without the State of Florida, on such dates,
and at such time as shall be specified in the notice of such special
meeting.
SECTION 3. Adjournment
(a) When the annual meeting is convened, or when any special meeting is
convened, the presiding officer may adjourn it for such period of time
as may be reasonably necessary to reconvene the meeting at another
place and time.
(b) The presiding officer shall have the power to adjourn any meeting of
the stockholders for any proper purpose, including, but not limited to,
lack of a quorum, securing a more adequate meeting place, electing
officials to count and tabulate votes, reviewing any stockholder
proposals or passing upon any challenge which may properly come before
the meetings.
(c) (1) When a meeting is adjourned to another time or place, it
shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is
adjourned are announced at the meeting at which the
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.
(2) If, however, after the adjournment the Board fixes a new
record date for the adjourned meeting, a notice of the
adjourned meeting shall be given in compliance with Section
4(a) of this Article I to each stockholder of record on the
new record date entitled to vote at such meeting.
SECTION 4. Notice of Meetings; Purpose of Meeting; Waiver
(a) (1) Each stockholder of record entitled to vote at any meeting
shall be given in person, or by first class mail, postage
prepaid, written notice of such meeting which, in the case of
a special meeting, shall set forth the purpose(s) for which
the meeting is called, not less than 20 or more than 60 days
before the date of such meeting.
(2) If mailed, such notice is to be sent to the stockholder's
address as it appears on the stock transfer books of the
Corporation, unless the stockholder shall be requested of the
Secretary in writing at least 15 days prior to the
distribution of any required notice that any notice intended
for him or her be sent to some other address, in which case
the notice may be sent to the address so designated.
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(3) Notwithstanding any such request by a stockholder, notice sent
to a stockholder's address as it appears on the stock transfer
books of this Corporation as of the record date shall be
deemed properly given.
(4) Any notice of a meeting sent by United States mail shall be
deemed delivered when deposited with proper postage thereon
with the United States Postal Service or in any mail
receptacle under its control.
(b) (1) A stockholder waives notice of any meeting by attendance,
either in person or by proxy, at such meeting or by waiving
notice in writing either before, during or after such meeting.
(2) Attendance at a meeting for the express purpose of objecting
that the meeting was not lawfully called or convened, however,
will not constitute a waiver of notice by a stockholder who
states at the beginning of the meeting, his or her objection
that the meeting is not lawfully called or convened.
(c) A waiver of notice signed by all stockholders entitled to vote at a
meeting of stockholders may also be used for any other proper purpose
including, but not limited to, designating any place within or without
the State of Florida as the place for holding such a meeting.
(d) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders need be specified in any
written waiver of notice.
SECTION 5. Closing of Transfer Books; Record Date; Stockholders' List
(a) In order to determine the holders of record of the capital stock of the
Corporation who are entitled to notice of meetings, to vote a meeting
or adjournment thereof, or to receive payment of any dividend, or for
any other purpose, the Board of Directors may fix a date not more than
60 days prior to the date set for any of the above-mentioned activities
for such determination of stockholders.
(b) If the stock transfer books shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting
of stockholders, such books shall be closed for at least 25 days
immediately preceding such meeting, as required in order to permit the
Corporation to obtain the names of all stockholders entitled to notice
in time to provide such notice.
(c) In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the date for any such determination of
stockholders, such date in any case to be not less than 25 nor more
than 60 days prior to the date on which the particular action,
requiring such determination of stockholders, is to be taken.
(d) If the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice or to vote at
a meeting of stockholders, or to receive payment of a dividend, the
fifth date prior to the date on which notice of the meeting is mailed
or the date on which the resolution of the Board of Directors declaring
such dividend is adopted, as the case may be, shall be the record date
for such determination of stockholders.
(e) When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board
of Directors fixes a new record date under this Section for the
adjourned meeting.
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(f) (1) The officer or agent having charge of the stock transfer
books of the Corporation shall make, as of a date at least 10
days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting or any
adjournment thereof, with the address of each stockholder and
the number and class and series, if any, of shares held by
each stockholder.
(2) Such list shall be kept on file at the registered office of
the Corporation, at the principal place of business of the
Corporation or at the office of the transfer agent or
registrar of the Corporation for a period of 10 days prior to
such meeting and shall be available for inspection by any
stockholder at any time during usual business hours.
(3) Such list shall also be produced and kept open at the time and
place of any meeting of stockholders and shall be subject to
inspection by any stockholder at any time during the meeting.
(g) The original stock transfer books shall be prima facie evidence as to
the stockholders entitled to examine such list or stock transfer books
or to vote any meeting of stockholders.
(h) If the requirements of Section 5(f) of this Article I have not been
substantially complied with, then, on the demand of any stockholder in
person or by proxy, the meeting shall be adjourned until such
requirements are complied with.
(i) If no demand pursuant to Section 5(h) of this Article I is made,
failure to comply with the requirements of this Section shall not
affect the validity of any action taken at such meeting.
(j) Section 5(g) of this Article I shall be operative only at such time(s)
as the Corporation shall have 6 or more stockholders.
SECTION 6. Quorum
(a) At any meeting of the stockholders of the Corporation, the presence, in
person or by proxy, of stockholders holding a majority of the issued
and outstanding shares of the capital stock of the Corporation entitled
to vote thereat shall be necessary to constitute a quorum for the
transaction of any business.
(b) If a quorum is present, the vote of a majority of the shares
represented at such meeting and entitled to vote on the subject matter
shall be the act of the stockholders.
(c) If there shall not be a quorum at any meeting of the stockholders of
the Corporation, then the holders of a majority of the shares of the
capital stock of the Corporation who shall be present at such meeting,
in person or by proxy, may adjourn such meeting from time to time until
holders of a quorum of the shares of the capital stock shall attend.
(d) At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the
meeting as originally scheduled.
SECTION 7. Presiding Officer; Order of Business
(a) (1) Meetings of the stockholders shall be presided over by the
Chairman of the Board, or, if he or she is not present or
there is no Chairman of the Board, by the President or, if he
or she is not present, by the senior Vice President present
or, if neither the Chairman of the Board, the President, nor a
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Vice President is present, the meeting shall be presided over
by a chairman to be chosen by a plurality of the stockholders
entitled to vote at the meeting who are present, in person or
by proxy.
(2) The presiding officer of any meeting of the stockholders may
delegate his or her duties and obliga tions as the presiding
officer as he or she sees fit.
(b) The Secretary of the Corporation, or, in his or her absence, an
Assistant Secretary shall act as Secretary of every meeting of
stockholders, but if neither the Secretary nor an Assistant Secretary
is present, the presiding officer of the meeting shall choose any
person present to act as secretary of the meeting.
(c) The order of business shall be as follows:
Call of meeting to order.
Proof of notice of meeting.
Reading minutes of last previous stockholders' meeting or a waiver thereof.
Reports of Officers.
Reports of committees.
Mandatory nominations for election to the Board of Directors
based on contractual obligations. Election of members
of the Corporation's Board of Directors.
Regular and miscellaneous business.
Special matters.
Adjournment.
(d) (1) Notwithstanding the provisions of Section 7(c) of this
Article I, the order and topics of business to be transacted
at any meeting shall be determined by the presiding officer of
the meeting in his or her sole discretion.
(2) In no event shall any variation in the order of business or
additions and deletions from the order of business as
specified in Section 7(c) of this Article I invalidate any
actions properly taken at any meeting.
SECTION 8. Voting
(a) Unless otherwise provided for in the Certificate of Incorporation, each
stockholder shall be entitled, at each meeting and upon each proposal
to be voted upon, to one vote for each share of voting stock recorded
in his name on the books of the Corporation on the record date fixed as
provided for in Section 5 of this Article I.
(b) (1) The presiding officer at any meeting of the stockholders
shall have the power to determine the method and means of
voting when any matter is to be voted upon.
(2) The method and means of voting may include, but shall not be
limited to, vote by ballot, vote by hand or vote by voice.
(3) No method of voting may be adopted, however, which fails to
take account of any stockholder`s right to vote by proxy as
provided for in Section 10 of this Article I.
(4) In no event may any method of voting be adopted which would
prejudice the outcome of the vote.
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SECTION 9. Action Without Meeting
(a) (1) Any action required to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may
be taken without a meeting and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by
the holders of a majority of the Corporation's outstanding voting
stock; provided that, if the Corporation is then subject to
compliance with Section 14 of the Exchange Act, it must prior to
such action have filed with the Commission and delivered to the
stockholders an information statement and annual report in the
form required thereby.
(2) Such instrument may be executed in counterparts or as a unitary
document.
(b) In the event that the action to which the stockholders consent is such
as would have required the filing of a certificate under the Florida
Business Corporation Act, the effect of such consent shall be as if
such action had been voted on by stockholders at a meeting thereof,
however, the certificate filed under such other section shall state
that written consent has been given in accordance with the provisions
of Section 9 of this Article I.
(c) If the Corporation no longer has a class of securities registered under
Section 12 of the Exchange Act and stockholder action is taken by
written consent in lieu of meeting without prior notice, signed by less
than all of the Corporation's stockholders, then all non participating
stockholders shall be provided with written notice of the action taken
within 10 days after the effective date of the written instrument
taking such action.
(d) No action by written consent in lieu of meeting shall be valid if it is
in contravention of applicable proxy or informational rules adopted
pursuant to the Exchange Act including, without limitation, the
requirements of Section 14 thereof.
SECTION 10. Proxies
(a) Every stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent without a meeting, or his or her duly
authorized attorney-in-fact, may authorize another person or persons to
act for him or her by proxy.
(b) (1) Every proxy must be signed by the stockholder or his or her
attorney-in-fact.
(2) No proxy shall be valid after the expiration of 11 months from
the date thereof unless otherwise provided in the proxy.
(3) Every proxy shall be revocable at the pleasure of the stockholder
executing it, except as otherwise provided in this Section 10.
(c) The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the stockholder who executed the proxy
unless, before the authority is exercised, written notice of any
adjudication of such incompetence or of such death is received by the
corporate officer responsible for maintaining the list of stockholders.
(d) Except when other provisions shall have been made by written agreement
between the parties, the record holder of shares held as pledges or
otherwise as security or which belong to another, shall issue to the
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pledgor or to such owner of such shares, upon demand therefor and
payment of necessary expenses thereof, a proxy to vote or take other
action thereon.
(e) A proxy which states that it is irrevocable is irrevocable when it is held
by any of the following or a nominee of any of the following: (i) a
pledgee; (ii) a person who has purchased or agreed to purchase the shares:
(iii) a creditor or creditors of the Corporation who extend or continue to
extend credit to the Corporation in consideration of the proxy, if the
proxy states that it was given in consideration of such extension or
continuation of credit, the amount thereof, and the name of the person
extending or continuing credit; (iv) a person who has contracted to perform
services as an officer of the Corporation, if a proxy is required by the
contract of employment, if the proxy states that it was given in
consideration of such contract of employment and states the name of the
employee and the period of employment contracted for; and (v) a person
designated by or under an agreement as provided in Article XI hereof.
(f) (1) Notwithstanding a provision in a proxy stating that it is irrevocable,
the proxy becomes revocable after the pledge is redeemed, the debt of
the Corporation is paid, the period of employment provided for in the
contract of employment has terminated, or the agreement under Article
XI hereof has terminated and, in a case provided for in Section 10(e)
(iii) or Section 10(e) (iv) of this Article I, becomes revocable three
years after the date of the proxy or at the end of the period, if any,
specified therein, whichever period is less, unless the period of
irrevocability of the proxy as provided in this Section 10.
(2) This Section 10(f) does not affect the duration of a proxy under
Section 10(b) of this Article I.
(g) A proxy may be revoked, notwithstanding a provision making it
irrevocable, by a purchaser of shares without knowledge of the
existence of the provisions unless the existence of the proxy and its
irrevocability is noted conspicuously on the face or back of the
certificate representing such shares.
(h) (1) If a proxy for the same shares confers authority upon two
or more persons and does not otherwise provide, a majority of
such persons present at the meeting, or if only one is present
then that one, may exercise all the powers conferred by the
proxy.
(2) If the proxy holders present at the meeting are equally
divided as to the right and manner of voting in any particular
case, the voting of such shares shall be prorated.
(i) If a proxy expressly so provides, any proxy holder may appoint in
writing a substitute to act in his or her place.
(j) Notwithstanding anything in the Bylaws to the contrary, no proxy shall
be valid if it was obtained in violation of any applicable requirements
of Section 14 of the Exchange Act or the Rules and Regulations
promulgated thereunder.
SECTION 11. Voting of Shares by Stockholders
(a) (1) Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated
by the bylaws of the corporate stockholder; or, in the absence of
any applicable bylaw, by such person as the Board of Directors of
the corporate stockholder may designate.
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(2) Proof of such designation may be made by presentation of a
certified copy of the bylaws or other instrument of the corporate
stockholder.
(3) In the absence of any such designation, or in case of conflicting
designation by the corporate stockholder, the chairman of the
board, president, any vice president, secretary and treasurer of
the corporate stockholder, in that order, shall be presumed to
possess authority to vote such shares.
(b) (1) Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his or her name.
(2) Shares standing in the name of a trustee may be voted as shares
held by him or her without a transfer of such shares into his
name.
(c) (1) Shares standing in the name of a receiver may be voted by such
receiver.
(2) Shares held by or under the control of a receiver but not
standing in the name of such receiver, may be voted by such
receiver without the transfer thereof into his name if authority
to do so is contained in an appropriate order of the court by
which such receiver was appointed.
(d) A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the
pledgee.
(e) Shares of the capital stock of the Corporation belonging to the
Corporation or held by it in a fiduciary capacity shall not be voted,
directly or indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares.
(f) In the event that a stockholder is party to an agreement to which the
Corporation is also a party that requires such stockholder to vote his,
her or its shares in a specified manner, then, absent an order by a
court of competent jurisdiction directing the Corporation to act
otherwise, the stockholder may only vote his, her or its common stock
in full compliance with such obligations.
ARTICLE II
DIRECTORS
SECTION 1. Board of Directors; Exercise of Corporate Powers
(a) (1) All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation
shall be managed under the direction of, the Board of
Directors except as may be otherwise provided in the
Certificate of Incorporation or in a stockholders' agreement.
(2) If any such provision is made in the Certificate of
Incorporation or in a stockholders' agreement, the powers and
duties conferred or imposed upon the Board of Directors shall
be exercised or performed to such extent and by such person or
persons as shall be provided in the Certificate of
Incorporation or stockholders' agreement.
(b) Directors need not be residents of this state or stockholders of the
Corporation unless the Certificate of Incorporation so requires.
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(c) The Board of Directors shall have authority to fix the compensation of
members of the Corporation's Board of Directors unless otherwise provided
in the Certificate of Incorporation.
(d) A Director shall perform his or her duties as a Director, including his or
her duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he or she reasonably believes to be in
the best interests of the Corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
(e) In performing his or her duties, a Director shall be entitled to rely on
information, opinions, reports or statements, including without limitation,
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 or she does not serve, duly designated in accordance
with a provision of the Certificate of Incorporation or these Bylaws, as to
matters within its designated authority, which committee the Director
reasonably believes to merit confidence.
(f) A Director shall not be considered to be acting in good faith if he or she
has knowledge concerning the matter in question that would cause such
reliance described in Section 1(e) of this Article II to be unwarranted.
(g) A person who performs his or her duties in compliance with Section 1 of
this Article II shall have no liability by reason of being or having been a
Director of the Corporation.
(h) 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 he or she votes
against such action or abstains from voting in respect thereto because of
an asserted conflict of interest.
SECTION 2. Number; Election; Classification of members of the Corporation's
Board of Directors Vacancies
(a) (1) The Board of Directors of this Corporation shall consist of
not less than one Director.
(2) The Board shall have authority, from time to time, to increase
the number of members of the Corporation's Board of Directors
or to decrease it to not less than one member, provided that
no decrease in the number of members of the Corporation's
Board of Directors shall deprive a serving Director of the
right to serve throughout the term of his or her election.
(3) In the event that the Corporation is party to an agreement to
which a majority of its stockholders are also parties and
which requires that one or more persons or their designees be
elected as members of the Corporation's board of directors,
then, absent an order by a court of competent jurisdiction
directing the Corporation to act otherwise, such persons shall
serve as members of the Corporation's Board of Directors, in
full compliance with such obligations.
(b) Each person named in the Certificate of Incorporation as a member of
the initial Board of Directors shall serve until his or her successor
shall have been elected and qualified or until his or her earlier
resignation, removal from office, or death.
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(c) (1) At the first annual meeting of stockholders and at each
annual meeting thereafter, the stockholders shall elect
Directors to hold office until the next succeeding annual
meeting, except in case of the classification of members of
the Corporation's Board of Directors as permitted by the
Florida Business Corporation Act.
(2) Each Director shall hold office for the term for which he or
she is elected and until his or her successor shall have been
elected and qualified or until his or her earlier resignation,
removal from office, or death.
(d) (1) The stockholders, by amendment to these Bylaws, may
provide that the Directors be divided into not more than four
classes, as nearly equal in number as possible, whose terms of
office shall respectively expire at different times, but no
such term shall continue longer than four years, and at least
one fourth of the Directors shall be elected annually.
(2) If members of the Corporation's Board of Directors are
classified and the number of members of the Corporation's
Board of Directors is thereafter changed, any increase or
decrease in Directorship shall be so apportioned among the
classes as to make all classes as nearly equal in number as
possible.
(e) (1) Any vacancy occurring in the Board of Directors, including
any vacancy created by reason of an increase in the number of
members of the Corporation's Board of Directors, may be filled
only by the Board of Directors.
(2) A Director elected to fill a vacancy shall hold office only
until the next election of Directors by the stockholders.
SECTION 3. Removal of Directors
(a) At a meeting of stockholders called expressly for that purpose, any
Director or the entire Board of Directors may be removed, with or
without cause, by the vote of the holders of 60% of the shares then
entitled to vote at an election of members of the Corporation's Board
of Directors; provided that at least one Director remains in office or
one Director is elected as a replacement Director concurrently with
such removal and provided further that such removal does not contravene
contractual obligations binding on the Corporation and the holders of
more than 40% of the Corporation's common stock.
(b) In the event that the number of members of the Corporation's Board of
Directors is reduced below that number mandated in the Certificate of
Incorporation as a result of the removal of one or more Directors by
the stockholders, then the remaining Directors or the contemporaneously
elected replacement Director will promptly elect replacement Directors,
to serve until the next meeting of the Corporation's stockholders, and
until their replacements have been elected, qualified and assume their
office.
SECTION 4. Director Quorum and Voting
(a) A majority of the Directors fixed in the manner provided in these
Bylaws shall constitute a quorum for the transaction of business;
provided that, in the event that the Corporation is a party to an
agreement that requires the presence and participation of specified
directors, either generally or as to specific matters, then a quorum
will require the participation of such person or persons, in the manner
called for by such agreement.
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(b) A majority of the members of an Executive Committee or other committee
shall constitute a quorum for the transaction of business at any
meeting of such Executive Committee or other committee; provided that,
in the event that the Corporation is a party to an agreement that
requires the presence and participation of specified directors, either
generally or as to specific matters, then a quorum will require the
participation of such person or persons, in the manner called for by
such agreement.
(c) The act of a majority of the members of the Corporations Board of
Directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors; provided that, in the event that the
Corporation is a party to an agreement that requires the affirmative
vote of specified members, either generally or as to specific matters,
then action by the Board of Directors will require the affirmative vote
of such member or members, in the manner called for by such agreement.
(d) The act of a majority of the members of an Executive Committee present
at an Executive Committee meeting at which a quorum is present shall be
the act of the Executive Committee; provided that, in the event that
the Corporation is a party to an agreement that requires the
affirmative vote of specified members, either generally or as to
specific matters, then action by the Executive Committee of the Board
of Directors will require the affirmative vote of such member or
members, in the manner called for by such agreement.
(e) The act of a majority of the members of any other committee present at
a committee meeting at which a quorum is present shall be the act of
the committee; provided that, in the event that the Corporation is a
party to an agreement that requires the affirmative vote of specified
members, either generally or as to specific matters, then action by any
such committee of the Board of Directors will require the affirmative
vote of such member or members, in the manner called for by such
agreement.
(f) Directors may, if not contrary to applicable law, vote either in person
or by proxy, provided that the proxy holder must be either another
Director, an officer or a stockholder of the Corporation; provided that
any Director who elects to vote by proxy more than three times during
any single fiscal year shall, unless otherwise determined by the Board
of Directors, be automatically removed as a Director and provided
further, that, in the event that the Corporation is a party to an
agreement that requires the affirmative vote of specified members,
either generally or as to specific matters, then action by the Board of
Directors will require the affirmative vote of such member or members,
in the manner called for by such agreement.
SECTION 5. Director Conflicts of Interest
(a) 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 its Directors are Directors or officers
or are financially interested shall be either void or voidable because
of such relationship or interest or because such Director or Directors
are present at the meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or
transaction or because their votes are counted for such purpose, if:
(i) 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; or
(ii) The fact of such relationship or interest is disclosed or
known to the stockholders entitled to vote and they authorize,
approve or ratify such contract or transaction by vote or
written consent; or
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(iii) 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 stockholders.
(b) Interested Directors, whether or not voting, 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.
SECTION 6. Executive and Other Committees; Designation; Authority
(a) The Board of Directors, by resolution adopted by the full Board of
Directors, may designate from among its Directors an Executive Committee
and one or more other committees each of which, to the extent provided in
such resolution or in the Certificate of Incorporation or these Bylaws,
shall have and may exercise all the authority of the Board of Directors,
except that no such committee shall have the authority to : (i) approve or
recommend to stockholders actions or proposals required by the Florida
Business Corporation Act to be approved by stockholders; (ii) designate
candidates for the office of Director for purposes of proxy solicitation or
otherwise; (iii) fill vacancies on the Board of Directors or any committee
thereof; (iv) amend these Bylaws; (v) authorize or approve the
re-acquisition of shares unless pursuant to a general formula or method
specified by the Board of Directors; or (vi) authorize or approve the
issuance or sale of, or any contract to issue or sell, shares or designate
the terms of a series of a class of shares, unless the Board of Directors,
having acted regarding general authorization for the issuance or sale of
shares, or any contract therefor, and, in the case of a series, the
designation thereof has specified a general formula or method by resolution
or by adoption of a stock option or other plan, authorized a committee to
fix the terms upon which such shares may be issued or sold, including,
without limitation, the price, the rate or manner of payment of dividends,
provisions for redemption, sinking fund, conversion, and voting or
preferential rights, and provisions for other features of a class of
shares, or a series of a class of shares, with full power in such committee
to adopt any final resolution setting forth all the terms of a series for
filing with the Department of State under the Florida Business Corporation
Act.
(b) The Board of Directors, by resolution adopted in accordance with Section
6(a) of this Article II, may desig nate one or more members of the Board of
Directors as alternate members of any such committee, who may act in the
place and stead of any absent member or members at any meeting of such
committee.
(c) Neither the designation of any such committee, the delegation thereto of
authority, nor action by such committee pursuant to such authority shall
alone constitute compliance by a member of the Board of Directors, not a
member of the committee in question, with his responsibility to act in good
faith, in manner he reasonably believes to be in the best interests of the
Corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
SECTION 7. Place, Time, Notice and Call of Board of Directors' Meeting.
(a) Meetings of the Board of Directors, regular or special, may be held either
within or without the State of Florida.
(b) (i) A regular meeting of the Board of Directors of the Corporation shall
be held for the election of officers of the Corporation and for the
transaction of such other business as may come before such meeting as
promptly as practicable after the annual meeting of the stockholders
of this Corporation without the necessity of notice other than this
Bylaw.
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(ii) Other regular meetings of the Board of Directors of the Corporation
may be held at such places as the Board of Directors of the
Corporation may from time to time resolve without notice other than
such resolution.
(iii)Special meetings of the Board of Directors may be held at any time
upon call of the Chairman of the Board of Directors or a majority of
the Directors of the Corporation, at such time and at such place as
shall be specified in the call thereof.
(iv) (A) Notice of any special meeting of the Board of Directors must be
given at least two days prior thereto, if by written notice
delivered personally; or at least five days prior thereto, if
mailed; or at least two days prior thereto, if by telegram; or at
least two days prior thereto, if by telephone or E-mail, receipt
confirmed.
(B) If such notice is given by mail, such notice shall be deemed to
have been delivered when deposited with the United States Postal
Service addressed to the business address of such Director with
postage thereon prepaid.
(C) If notice be given by telegram, such notice shall be deemed
delivered when the telegram is delivered to the telegraph
company.
(D) If notice is given by telephone (including facsimile
transmission), such notice shall be deemed delivered when the
call is completed.
(E) If notice is given by E-mail, such notice shall be deemed
delivered when confirmation of receipt is obtained.
(c) (1) Notice of a meeting of the Board of Directors need not be given
to any Director who signs a waiver of notice either before or
after the meeting.
(2) Attendance of a Director at a meeting shall constitute a waiver
of notice of such meeting and waiver of any and all objections to
the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a Director
states, at the beginning of the meeting, any objection to the
transaction of business because the meeting is not lawfully
called or convened.
(d) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified
in the notice or waiver of notice of such meeting.
(e) (1) A majority of the Directors present, whether or not a quorum
exists, may adjourn any meeting of the Board of Directors to
another time and place.
(2) Notice of any such adjourned meeting shall be given to the
Directors who were not present at the time of the adjournment
and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other Directors.
(f) (1) Members of the Board of Directors may participate in a meeting of
such Board by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can communicate with each other at
the same time.
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(2) Participation by such means shall constitute presence in person
at a meeting.
SECTION 8. Action by Directors Without a Meeting
(a) (1) Any action required by the Florida Business Corporation Act to be
taken at a meeting of the Directors of the Corporation, or any
action which may be taken at a meeting of the Directors or a
committee thereof, may be taken without a meeting if a consent in
writing, setting forth the action so to be taken, signed by all
of the Directors, or all of the members of the committee, as the
case may be, and is filed in the minutes of the proceedings of
the Board or of the committee.
(2) Such consent shall have the same effect as a unanimous vote.
(b) If not contrary to applicable law, of members of the Corporation's Board of
Directors may take action as the Board of Directors or committees thereof
through a written consent to action signed by a number of members of the
Corporation's Board of Directors sufficient to have carried a vote of the
Board of Directors or committee thereof with all members present and
voting; provided, that all Directors not joining in such written instrument
shall be deemed for all purposes to have cast dissenting votes, and that
all Directors not parties to such instrument shall receive written notice
of all action taken through such instrument within three days after such
instrument shall have been subscribed by the requisite number of members of
the Corporation's Board of Directors required for such action, provided
that, in the event that the Corporation is a party to an agreement that
requires the affirmative vote of specified members, either generally or as
to specific matters, then action by the Board of Directors will require the
affirmative vote of such member or members, in the manner called for by
such agreement.
SECTION 9. Compensation
(a) The members of the Corporation's Board of Directors and members of the
Executive and any other committee of the Board of Directors shall be
entitled to such reasonable compensation for their services and on such
basis as shall be fixed from time to time by resolution of the
Corporation's stockholders.
(b) The members of the Board of Directors and members of any committee of
that Board of Directors shall be entitled to reimbursement for any
reasonable expenses incurred in attending any Board or committee
meeting.
(c) Any member of the Corporation's Board of Directors receiving
compensation under this Section shall not be prevented from serving the
Corporation in any other capacity and shall not be prohibited from
receiving reasonable compensation for such other services.
SECTION 10. Resignation
(a) Unless he is the sole serving Director, any Director of the Corporation
may resign at any time by providing the Board of Directors with written
notice indicating the Director's intention to resign and the effective
date thereof.
(b) A sole serving Director of the Corporation must, at least concurrently
with his or her resignation, elect one or more successor Director(s) at
least one of whom must assume his or her office concurrently with the
subject resignation, and the resignation shall be effected by providing
the successor Director(s) with written notice indicating the Director's
intention to resign and the effective date thereof.
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ARTICLE III
OFFICERS
SECTION 1. Election; Number; Terms of Office
(a) (1) The officers of the Corporation shall consist of a Chairman of
the Board of Directors whose title may be designated as
"Chairman," a Chief Executive officer, a President, a Chief
Operating Officer, a Chief Financial Officer, one or more
Vice-Presidents, a Secretary and a Treasurer, each of whom shall
be elected by the Board of Directors at such time and in such
manner as may be prescribed by these Bylaws.
(2) Such other officers and assistant officers and agents as may be
deemed necessary may be elected or appointed by the Board of
Directors.
(3) The officers of the Corporation shall be hereinafter collectively
referred to as the "Officers."
(b) All Officers and agents, as between themselves and the Corporation,
shall have such authority and perform such duties in the management of
the Corporation as are provided in these Bylaws, or as may be
determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
(c) Any two or more offices may be held by the same person, except for the
offices of President and Secretary.
(d) A failure to elect a Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer, Chief Financial Officer, a Vice
President, a Secretary or a Treasurer shall not affect the existence of
the Corporation.
SECTION 2. Removal
(a) An Officer of the Corporation shall hold office until the election and
qualification of his successor; however, any Officer of the Corporation
may be removed from office by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby,
provided that, in the event that the Corporation is a party to an
agreement that requires the affirmative vote of specified members,
either generally or as to specific matters, then action by the Board of
Directors will require the affirmative vote of such member or members,
in the manner called for by such agreement.
(b) Such removal shall be without prejudice to the contract rights, if any,
of the person so removed.
(c) Election or appointment of an officer shall not of itself create any
contract right to employment or compensa tion or create an employer -
employee relationship.
SECTION 3. Vacancies
Any vacancy in any office from any cause may be filled for the unexpired
portion of the term of such office by the Board of Directors.
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SECTION 4. Powers and duties
(a) (1) The Chairman of the Board of Directors shall preside over
meetings of the Board of Directors and the stockholders.
(2) Unless a separate Chief Executive Officer is elected, the
Chairman shall exercise the powers hereafter granted to that
office.
(3) Unless a Chairman of the Board is specifically elected, the
President shall be deemed to be the Chairman of the Board.
(b) (1) The Chief Executive Officer shall be the principal Officer of the
Corporation to whom all other Officers shall be subordinate.
(2) In the event no Chief Executive Officer is separately elected,
such office shall be assumed by the Chairman of the Board, and if
no such office has been filled, by the President.
(3) Except where by law the signature of the President is required or
unless the Board of Directors shall rule otherwise, the Chief
Executive Officer shall possess the same power as the President
to sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors.
(c) (1) The Chief Operating Officer of the Corporation shall be
responsible for management of the day to day affairs of the
Corporation, subject to compliance with the directions of the
Board of Directors and of the Chief Executive Officer.
(2) He shall be responsible for the general day-to-day supervision of
the business and affairs of the Corporation.
(3) He shall sign or countersign all certificates, contracts or other
instruments of the Corporation, as authorized by the Board of
Directors or as assigned by the Chief Executive Officer.
(4) He may, but need not, be a member of the Board of Directors.
(5) Unless otherwise provided by specific resolution of the Board of
Directors, the President shall be the Chief Operating Officer of
the Corporation.
(d) (1) In the absence of a separately elected or available Chief
Executive Officer or Chairman of the Board, the President shall
be the Chief Executive Officer of the Corporation and shall
preside at all meetings of the stockholders and the Board of
Directors.
(2) The Board of Directors will at all times retain the power to
expressly delegate the duties of the President to any other
Officer of the Corporation.
(e) (1) The Chief Financial Officer shall be responsible for coordinating
all financial aspects of the Corporation's operations, including
strategic financial planning, supervision of the Corporation's
Treasurer, Comptroller and outside auditors.
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(2) In the event an Audit Committee of the Board of Directors is
designated and serving, he shall be responsible for keeping
such committee fully and timely informed of all matters under
its jurisdiction.
(3) The Chief Financial Officer shall, unless otherwise
specifically provided by the Board of Directors, serve as the
Corporation's principal compliance officer and shall be
responsible for overseeing preparation and filing of all
reports of the Corporation's activities required to be filed,
either periodically or on a special basis with the United
States Internal Revenue Service, the Securities and Exchange
Commission and with other federal, state or local governmental
agencies.
(f) (1) The Vice President(s), if any, in the order designated by
the Board of Directors, shall exercise the functions of the
President in the event of the absence, disability, death, or
refusal to act of the President.
(2) During the time that any Vice President is properly exercising
the functions of the President, such Vice President shall have
all the powers of and be subject to all restrictions upon the
President.
(3) Each Vice President shall have such other duties as are
assigned to him from time to time by the Board of Directors
or by the President of the Corporation and shall be subject
to such specializing designations (e.g., "senior,"
executive," etc.) as the Board of Directors may select.
(g) (1) The Secretary of the Corporation shall keep the minutes of
the meetings of the stockholders of the Corporation, and,
unless provided otherwise by the Chairman at any meeting of
the Board of Directors, the Secretary shall keep the minutes
of the meetings of the Board of Directors of the Cor poration.
(2) The Secretary shall be the custodian of the minute books of
the Corporation and such other books and records of the
Corporation as the Board of Directors of the Corporation may
direct.
(3) The Secretary of the Corporation shall have the general
responsibility for maintaining the stock transfer books of the
Corporation, or of supervising the maintenance of the stock
transfer books of the Corporation by the transfer agent, if
any, of the Corporation.
(4) The Secretary shall be the custodian of the corporate seal of
the Corporation and shall affix the corporate seal of the
Corporation on contracts and other instruments as the Board of
Directors may direct.
(5) The Secretary shall perform such other duties as are assigned
from time by the Board of Directors, the Chief Executive
Officer, the Chairman, the Chief Operating Officer or the
President of the Corporation.
(h) (1) The Treasurer of the Corporation shall be directly subordinate
to the Chief Financial Officer.
(2) In the absence of a Chief Financial Officer, such office shall
be filled by the Treasurer.
(3) Unless otherwise specified by the Board of Directors, the
Treasurer shall have custody of all funds and securities owned
by the Corporation.
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(4) The Treasurer shall cause to be entered regularly in the
proper books of account of the Corporation full and accurate
accounts of the receipts and disbursements of the Corporation.
(5) The Treasurer of the Corporation shall render a statement of
the cash, financial and other accounts of the Corporation
whenever he is directed to render such a statement by the
Board of Directors or by the President of the Corporation.
(6) The Treasurer shall at all reasonable times make available the
Corporation's books and financial ac counts to any Director of
the Corporation during normal business hours.
(7) The Treasurer shall perform all other acts incident to the
Office of Treasurer of the Corporation, and he shall have such
other duties as are assigned to him from time to time by the
Board of Directors, the Chief Executive Officer, the Chairman,
the Chief Operating Officer or the President of the
Corporation.
(i) (1) The Corporation's Board of Directors shall designate a
person licensed to practice law in one of the states
comprising the United States as the Corporation's General
Counsel and Chief Legal Officer;
(2) The Corporation's General Counsel and Chief Legal Officer
shall coordinate the Corporation's legal affairs under the
directions of the Board of Directors and in coordination with
the Chief Executive Officer, to whom he or she shall report;
(3) The Board of Directors may appoint such subordinate legal
officers and assign them such functions as it may deem
appropriate.
(j) Other subordinate or assistant Officers appointed by the Board of
Directors or by the Chief Executive Officer, the Chairman, the Chief
Operating Officer or the President, if such authority is delegated to
them by the Board of Directors, shall exercise such powers and perform
such duties as may be delegated to them by the Board of Directors, the
Chief Executive Officer, the Chief Operating Officer or by the
President, as the case may be.
(k) In case of the absence or disability of any Officer of the Corporation
and of any person authorized to act in his place during such period of
absence or disability, the Board of Directors may from time to time
delegate the powers and duties of such Officer or any Director or any
other person whom it may select.
SECTION 5. Salaries
(a) The salaries of all Officers of the Corporation shall, except as
otherwise determined or required by an agreement entered into among all
the stockholders of the Corporation, be fixed by the Board of
Directors.
(b) No Officer shall be ineligible to receive such salary by reason of the
fact that he is also a Director of the Corporation and receiving
compensation therefor.
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ARTICLE IV
LOANS TO EMPLOYEES AND OFFICERS;
GUARANTEE OF OBLIGATIONS OF EMPLOYEES AND OFFICERS
(a) This Corporation may not lend money to, guarantee any obligation of, or
otherwise assist any Officer or other employee of the Corporation or of
a subsidiary, including any Officer or employee who is a Director of
the Corporation or of a subsidiary, unless, in the judgment of the
Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the Corporation and such decision has been ratified
by the Corporation's stockholders.
(b) The loan, guarantee or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board
of Directors shall approve and the Corporation's stockholders shall
ratify, including, without limitation, a pledge of shares of stock of
the Corporation.
ARTICLE V
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
SECTION 1. Certificates Representing Shares
No certificates representing shares of this Corporation need be issued
if the Corporation elects to maintain stock ownership records on a book entry
basis, if such method is permitted under applicable law; however, in the event
that such method is not permitted under applicable law, then
(a) (1) Every holder of shares of this Corporation shall be entitled to
one or more certificates, representing all shares to which he is
entitled and such certificates shall be signed by the Chairman,
Chief Executive Officer, Chief Operating Officer, the President
or a Vice President and the Secretary or an Assistant Secretary
of the Corporation and may be sealed with the seal of the
Corporation or a facsimile thereof.
(2) The signatures of the Chairman, the Chief Executive Officer, the
Chief Operating Officer, the President or Vice President and the
Secretary or Assistant Secretary may be facsimiles if the
certificate is manually signed on behalf of a transfer agent or a
registrar other than the Corporation itself or an employee of the
Corporation.
(3) In case any Officer who signed or whose facsimile signature has
been placed upon such certificate shall have ceased to be such
Officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if it were executed by
the appropriate Officer at the date of its issuance.
(b) Every certificate representing shares issued by this Corporation shall,
if shares are divided into one or more classes or series with differing
rights, state that the Corporation will furnish to any stockholder upon
request and without charge a full statement of: (i) the designations,
preferences, limitations, and relative rights of the shares of each
class or series authorized to be issued, and (ii) the variations in the
relative rights and preferences between the shares of each such series,
if the Corporation is authorized to issue any preferred or special
class in series and so far as the same have been fixed and determined,
and the authority of the Board of Directors to fix and determine, the
relative rights and preferences of subsequent series.
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(c) Every certificate representing shares which are restricted as to sale,
disposition or other transfer (including restrictions based on federal
or state securities and other laws) shall state that such shares are
restricted as to transfer and shall set forth or fairly summarize upon
the certificate, or shall state that the Corporation will furnish to
any stockholder upon request and without charge a full statement of,
such restrictions.
(d) Each certificate representing shares shall state upon the face thereof:
(i) the name of the Corporation;
(ii) that the Corporation is organized under the laws of the State
of Florida;
(iii) the name of the person or persons to whom issued;
(iv) the number and class of shares, and the designation of the
series, if any, which such certificate represents; and
(v) the par value of each share represented by such certificate,
or a statement that the shares are without par value.
(e) No certificate shall be issued for any shares until they are fully
paid for and in the event that a certificate is erroneously issued or
compensation paid is subsequently discovered to be other than as
represented (e.g., dishonored checks, securities of a corporation
acquired in a reorganization where the representations and warranties
provided prove to be materially false, etc.), then the Board of
Directors shall promulgate a certified resolution detailing the nature
of the misrepresented consideration, and shall submit such certified
resolution to the person responsible for recording and effecting
transactions in the Corporation's securities; whereupon such
securities will be restricted from transfer and treated as no longer
outstanding for all purposes unless the Corporation becomes subject to
a judgment of a court of competent jurisdiction providing otherwise.
SECTION 2. Transfer Books
(a) The Corporation shall keep at its registered office or principal place
of business or in the office of its transfer agent or registrar, a book
(or books where more than one kind, class, or series of stock is
outstanding) to be known as the Stock Book, containing the names,
alphabetically arranged, addresses and Social Security numbers of every
stockholder and the number of shares each kind, class or series of
stock held of record.
(b) Where the Stock Book is kept in the office of the transfer agent, the
Corporation shall keep at its principal office copies of the stock
lists prepared from said Stock Book and sent to it from time to time
(but not less frequently than every month) by said transfer agent.
(c) The Stock Book or stock lists shall show the current status of the
ownership of shares of the Corporation provided that, if the transfer
agent of the Corporation be located elsewhere, a reasonable time shall
be allowed for transit or mail.
SECTION 3. Transfer of Shares
(a) The name(s) and address(es) of the person(s) to whom shares of stock of
this Corporation are issued, shall be entered on the Stock Transfer
Books of the Corporation, with the number of shares and date of issue.
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(b) (1) Transfer of shares of the Corporation shall be made on the Stock
Transfer Books of the Corporation by the Secretary or the
transfer agent, subject to compliance with any restrictions
specified on such certificate, only when the holder of record
thereof or the legal representative of such holder of record or
the attorney-in-fact of such holder of record, authorized by
power of attorney duly ex ecuted and filed with the Secretary or
transfer agent of the Corporation, shall surrender the
Certificate representing such shares for cancellation.
(2) Lost, destroyed or stolen Stock Certificates shall be replaced
pursuant to Section 5 of this Article V.
(c) The person or persons in whose names shares stand on the books of the
Corporation shall be deemed by the Corporation to be the owner of such
shares for all purposes, except as otherwise provided pursuant to
Sections 10 and 11 of Article I, or Section 4 of Article V.
(d) Shares of the Corporation's capital stock shall be freely transferable
without required Board of Directors' consent, unless such shares are
subject to transfer restrictions under Securities and Exchange
Commission Rule 144 or a consent requirement has been imposed pursuant
to a binding written contract subscribed to by the holder or his or her
predecessor in interest.
(e) (1) All transactions in securities subject to any restrictions
imposed under Securities and Exchange Commission Rule 144
("restricted securities" and "Rule 144," respectively) shall, as
a condition to transfer, require the following documentation, to
be reviewed and approved by legal counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for the
shares was paid in full; detailing all transactions in the
Corporation's securities during the immediately preceding 90
days; affirming a present intent to dispose of the subject
securities; affirming that a Form 144 has been filed with
the Securities and Exchange Commission covering the proposed
transaction (and providing a copy thereof); affirming
compliance with any reporting obligations under Sections
13(d), 13(g) or 16(b) of the Exchange Act and providing such
other facts or representations as legal counsel to the
Corporation may reasonably require;
(B) A written confirmation by the Corporation's transfer agent
based on records available thereto of all transactions in
the Corporation's securities by the Holder and anyone with
whom the holder is required to aggregate sales or securities
holdings for purposes of Rule 144, as well as confirmation
of the percentage of outstanding securities of the
Corporation held of record by the Holder and anyone with
whom the holder is required to aggregate sales or securities
holdings for purposes of Rule 144;
(C) Except as provided below, a written confirmation from the
broker through whom the Holder is effecting the proposed
transaction verifying that the transaction will be effected
in full compliance with Rule 144; and
(D) A legal opinion from counsel to the Holder (who may not also
be the counsel to the Corporation) specifically addressing
all aspects of Rule 144 and detailing the manner in which
they are being complied with or the reasons that they are
not applicable.
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(2) Transactions in restricted securities that are not being effected
in reliance on Rule 144 shall require, as a condition to
transfer, the following documentation, to be reviewed and
approved by legal counsel to the Corporation:
(A) An affidavit from the holder (the "Holder") providing
details concerning acquisition of the subject shares;
providing evidence of the date when consideration for the
shares was paid in full; the identity and qualifications of
the person to whom the securities are being transferred; the
manner in which such person has been provided with required
information concerning the Corporation; affirming compliance
with any reporting obligations under Sections 13(d), 13(g)
or 16(b) of the Exchange Act and providing such other facts
or representations as legal counsel to the Corporation may
reasonably require;
(B) A legal opinion from counsel to the Holder (who may not also
be the counsel to the Corporation) addressed to the
Corporation in a manner creating enforceable privity between
such legal counsel and the Corporation, specifically
addressing all aspects of the exemptions relied on to effect
the proposed transaction without registration under
applicable federal and state securities laws and
regulations, and detailing the manner in which they are
being complied with or the reasons that they are not
applicable.
(3) No transactions in the Corporation's restricted securities
failing to materially comply with the foregoing requirements will
be honored, nor will any holding period required under Rule 144
be deemed to commence until all such requirements are materially
complied with (material compliance to be determined in the sole
discretion of the Corporation's Board of Directors).
SECTION 4. Voting Trusts
(a) (1) Any number of stockholders of the Corporation may create a voting
trust for the purpose of conferring upon a trustee or trustees
the right to vote or otherwise represent their shares, for a
period not to exceed ten years, by: (i) entering into a written
voting trust agreement specifying the terms and conditions of the
voting trust; (ii) depositing a counterpart of the agreement with
the Corporation at its registered office; and (iii) transferring
their shares to such trustee or trustees for the purposes of this
Agreement.
(2) Prior to the recording of the agreement, the stockholder
concerned shall render the stock certificate(s) described therein
to the Corporate Secretary who shall note on each certificate:
"This Certificate is subject to the provisions of a voting trust
agreement dated ..........., recorded in Minute Book
............, of the Corporation.
(b) (1) Upon the transfer of such shares, voting trust certificates shall
be issued by the trustee or trustees to the stockholders who
transfer their shares in trust.
(2) Such trustee or trustees shall keep a record of the holders of
voting trust certificates evidencing a beneficial interest in the
voting trust, giving the names and addresses of all such holders
and the number and class or the shares in respect of which the
voting trust certificates held by each are issued, and shall
deposit a copy of such record with the Corporation at its
registered office.
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(c) The counterpart of the voting trust agreement and the copy of such
record so deposited with the Corporation shall be subject to the same
right of examination by a stockholder of the Corporation, in person or
by agent or attorney, as are the books and records of the Corporation,
and such counterpart and such copy of such record shall be subject to
examination by any holder of record of voting trust certificates either
in person or by agent or attorney, at any reasonable time for any
proper purpose.
(d) (1) At any time before the expiration of a voting trust agreement as
originally fixed or as extended one or more times under this
Section 4(d), one or more holders of voting trust certificates
may, by agreement in writing, extend the duration of such voting
trust agreement, nominating the same or substitute trustees, for
an additional period not exceeding 10 years.
(2) Such extension agreement shall not affect the rights or
obligations or persons not parties to the agreement, and such
persons shall be entitled to remove their shares from the trust
and promptly to have their stock certificates reissued upon the
expiration of the original term of the voting trust agreement.
(3) The extension agreement shall in every respect comply with and be
subject to all the provisions of this Section 4, applicable to
the original voting trust agreement except that the 10 year
maximum period of duration shall commence on the date of adoption
of the extension agreement.
(e) The trustees under the terms of the agreements entered into under the
provisions of this Section 4, shall not acquire the legal title to the
shares but shall be vested only with the legal right and title to the
voting power which is incident to the ownership of the shares.
(f) Notwithstanding generally applicable prohibitions against a
corporation's voting of treasury stock, if the Corporation is the
trustee under a voting trust, it shall have full authority to vote such
shares in accordance with the terms of the voting trust agreement, even
if such agreement vests absolute and unfettered voting discretion in
the trustee and notwithstanding that the voting trust was created at
the prompting or direction of the Corporation, its officers or
Directors.
SECTION 5. Lost, Destroyed, or Stolen Certificates
No Certificate representing shares of stock in the Corporation shall be
issued in place of any Certificate alleged to have been lost, destroyed, or
stolen except on production of evidence, satisfactory to the Board of Directors,
of such loss, destruction or theft, and, if the Board of Directors so requires,
upon the furnishing of an indemnity bond in such amount (but not to exceed twice
the fair market value of the shares represented by the Certificate) and with
such terms and with such surety as the Board of Directors may, in its
discretion, require.
ARTICLE VI
BOOKS AND RECORDS
(a) The Corporation shall keep correct and complete books and records of
account and shall keep minutes of the proceedings of its stockholders,
Board of Directors and committees of the Board of Directors.
(b) Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable
time.
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(c) Any person who shall have been a holder of record of shares, or the
holder of record of voting trust certificates for, at least five
percent of the outstanding shares of any class or series of the
Corporation, upon written demand stating the purpose thereof, shall;
subject to the qualifications contained in subsection (d) hereof, have
the right to examine, in person or by agent or attorney, at any
reasonable time or times, for any purpose, its relevant books and
records of account, minutes and records of stockholders and to make
extracts therefrom.
(d) (1) No stockholder who within two years has sold or offered for sale
any list of stockholders or of holders of voting trust
certificates for shares of this Corporation or any other
corporation; has aided or abetted any person in procuring any
list of stockholders or of holders of voting trust certificates
for any such purpose; or has improperly used any information
secured through any prior examination of the books and records of
account, minutes, or record of stockholders or of holders of
voting trust certificates for shares of the Corporation of any
other corporation; shall be entitled to examine the documents and
records of the Corporation as provided in Section (c) of this
Article VI.
(2) No stockholder who does not act in good faith or for a proper
purpose in making his demand shall be entitled to examine the
documents and records of the Corporation as provided in Section
(c) of this Article VI.
(e) Unless modified by resolution of the stockholders and not otherwise
required by applicable laws, this Corporation shall prepare not later
than 90 days after the close of each fiscal year, audited financial
statements, including all required schedules, prepared in accordance
with Generally Accepted Accounting Principals ("GAAP") consistently
applied; and shall prepare not later than 45 days after the close of
each fiscal quarter (other than the fourth quarter), quarterly
unaudited financial statements, including all required schedules,
prepared in accordance with Generally Accepted Accounting Principals
("GAAP").
(f) Upon the written request of any stockholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail
to such stockholder or holder of voting trust certificates a copy of
its most recent balance sheet and profit and loss statement.
(g) Such financial statements shall be filed and kept for at least five
years in the registered office of the Corporation in the State of
Florida and shall be subject to inspection during business hours by any
stockholder or holder of voting trust certificates, in person or by
agent.
ARTICLE VII
DIVIDENDS
The stockholders of the Corporation may, from time to time, declare, and
the Corporation may pay dividends on its own shares, except when the Corporation
is insolvent or when the payment thereof would render the Corporation insolvent,
subject to the following provisions:
(a) Dividends in cash or property may be declared and paid, except as
otherwise provided in this Article VII, only out of the unreserved and
unrestricted earned surplus of the Corporation or out of capital
surplus, however arising, but each dividend paid out of capital surplus
shall be identified as a distribution of capital surplus, and the
amount per share paid from such capital surplus shall be disclosed to
the stockholders receiving the same concurrently with the distribution.
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(b) If the Corporation shall engage in the business of exploiting natural
resources or other wasting assets and if the Certificate so provides,
dividends may be declared and paid in cash out of depletion or similar
reserves, but each such dividend shall be identified as distribution of
such reserves and the amount per share paid from such reserves shall be
disclosed to the stockholders receiving the same concurrently with the
distribution thereof.
(c) Dividends may be declared and paid in the Corporation's treasury shares
(d) Dividends may be declared and paid in the Corporation's authorized but
unissued shares, out of any unreserved and unrestricted surplus of the
Corporation, upon the following conditions:
(i) If a dividend is payable in the Corporations' own shares
having a par value, such shares shall be issued at not less
than the par value thereof and there shall be transferred to
stated capital at the time such dividend is paid an amount of
surplus equal to the aggregate par value of the shares to be
issued as a dividend.
(ii) If a dividend is payable in the Corporations' own shares
without par value, such shares shall be issued at a stated
value fixed by resolution of the stockholders adopted at the
time such dividend is declared, and there shall be transferred
to stated capital at the time such dividend is paid an amount
of surplus equal to the aggregate stated value so fixed and
the amount per share so transferred to stated capital shall be
disclosed to the stockholders receiving such dividend
concurrently with the payment thereof.
(e) No dividend payable in shares of any class shall be paid to the holders
of shares of any other class unless the Certificate of Incorporation so
provides or such payment is authorized by the affirmative vote or the
written consent of the holders of at least a majority of the
outstanding shares of the class to which the payment is to be made.
(f) A split or division of the issued shares of any class into a greater
number of shares of the same class without increasing the stated
capital of the Corporation shall not be construed to be a stock
dividend within the meaning of this Article VII.
ARTICLE VIII
SEAL
The Board of Directors shall adopt a Corporate Seal which shall be circular
in form and shall have inscribed thereon the name of the Corporation, the state
of incorporation and the year of incorporation.
ARTICLE IX
AMENDMENT OF BYLAWS
The stockholders shall have the exclusive power to amend, alter, or repeal
these Bylaws, and to adopt new Bylaws.
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ARTICLE X
FISCAL YEAR
The fiscal year of this Corporation shall be determined by the Board of
Directors, unless this Corporation is a subsidiary of another Corporation which
holds more that 50% of the Corporation's common stock, in which case the
Corporation's fiscal year shall coincide with that of its Parent Corporation.
ARTICLE XI
MEDICAL REIMBURSEMENT
SECTION 1. Benefits
(a) The Corporation may, subject to approval of the Board of Directors and,
if it is a subsidiary of another Corporation which holds more that 50%
of the Corporation's common stock, subject to approval by its Parent
Corporation, reimburse all employees for expenses incurred by
themselves and their dependents, as defined in Section 152 of the
Internal Revenue Code of 1986, as amended (the "IRC"), for medical
care, as defined in IRC Section 213(e) or any successor section
thereto, subject to the conditions and limitations hereinafter set
forth.
(b) It is the intention of the Corporation that the benefits payable to
employees hereunder will be excluded from their gross income pursuant
IRC Section 105 or any successor section thereto.
(c) Notwithstanding anything in this Article to the contrary, if this
Corporation is a subsidiary of another Corporation which holds more
that 50% of the Corporation's common stock, then all actions called for
hereby requiring determination or approval by this Corporation, its
Board of Directors or officers shall be subject to such conditions or
restrictions as may be imposed by its Parent Corporation.
SECTION 2. Employees Defined
The term "employees" as used in this medical expense plan is hereby defined
to include all individuals employed by the corporation except the following:
(a) Employees who have not completed three months of service as is provided in
IRC Section 105(h)(3) (b)(i), or any successor section thereto;
(b) Employees who have not attained the age of 25 years;
(c) Employees who are part-time or seasonal as is defined in IRC Section
105(h)(3)(B)(iii) or any successor section thereto;
(d) Employees who are included in a unit of employees covered by an agreement
between employee representatives and one or more employers found to be a
collective bargaining agreement; where accident and health benefits were
the subject of good faith bargaining between such employee representatives
and such employer(s) as is defined in IRC Section 105(h)(3)(B)(iv) or any
successor section thereto;
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(e) Employees who are nonresident aliens and who receive no earned income from
the employer which constitutes income from sources within the United States
as is further defined in IRC Section 105(h)(5)(B)(v) or any successor
section thereto.
SECTION 3. Limitations
(a) The Corporation will reimburse any employee no more than $5,000.00 in any
fiscal year for medical care expenses;
(b) Reimbursement or payment provided under this plan will be made by the
Corporation only in the event and to the extent that such reimbursement or
payment is not provided under any insurance policy(ies), whether owned by
the Corporation or the employee, or under any other health and accident or
wage continuation plan;
(c) In the event that there is such an insurance policy or plan in effect
providing for reimbursement in whole or in part, then to the extent of the
coverage under such policy or plan, the Corporation will be relieved of any
and all liability hereunder.
SECTION 4. Submission of Proof
(a) Any employee applying for reimbursement under this plan will submit to the
Corporation, at least quarterly, all bills for medical care, including
premium notices for accident or health insurance, for verification by the
Corporation prior to payment.
(b) Failure to comply herewith, may at the discretion of the Board of
Directors, terminate such employee's right to said reimbursement.
SECTION 5. Discontinuation
This plan will be subject to termination at any time by vote of the Board
of Directors or at the direction of the Parent Corporation; provided, however,
that medical care expenses incurred prior to such termination will be reimbursed
or paid in accordance with the terms of this plan.
SECTION 6. Determination
(a) The Chief Executive Officer will determine all questions arising from the
administration and interpretation of the Plan except where reimbursement is
claimed by the Chief Executive Officer.
(b) Where reimbursement is claimed by the Chief Executive Officer determination
will be made by the Board of Directors.
* * *
The Undersigned, being the duly elected and acting Secretary of the
Corporation, hereby certifies that the foregoing constitute the validly adopted
and true Bylaws of the Corporation, as of the date set forth below.
Dated: March 7, 2000
/s/ Alicia Torrealba
------------------------
Secretary
(Corporate Seal)
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