Restated Bylaws of
Lorilei Communications, 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.
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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.
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(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.
(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.
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(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.
(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.
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(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 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 obligations 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.
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(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. 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.
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(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
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.
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(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.
(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.
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(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. (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.
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(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.
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(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.
(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.
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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.
(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.
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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
(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.
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(b) The Board of Directors, by resolution adopted in accordance with Section
6(a) of this Article II, may designate 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.
(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.
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(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.
(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.
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(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 compensation 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.
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(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.
(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 Corporation.
(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.
Page 241
(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.
(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 accounts 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.
Page 242
(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.
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.
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(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.
(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.
Page 244
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.
(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 executed
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.
Page 245
(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.
(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;
Page 246
(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.
(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.
Page 247
(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:
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(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.
(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.
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ARTICLE IX
AMENDMENT OF BYLAWS
The stockholders shall have the exclusive power to amend, alter, or repeal
these Bylaws, and to adopt new Bylaws.
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:
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(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;
(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.
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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: May 11, 2000
/s/ Leigh A. Cunningham
------------------------
Secretary
(Corporate Seal)
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