EXHIBIT 3.41 BYLAWS OF AMERICAN INTERNET, AS AMENDED
Bylaws
of
American Internet Technical Center, 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.
(2) The meeting shall be held on the 15th day of October of each
year or on such other day as the Board of Directors may
specify.
(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
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.
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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 pur poses 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) At any time, upon the written direction of any person or persons
entitled to call a special meet ing 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. 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) 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. 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
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a special meeting, shall set forth the purpose(s) for which
the meeting is called, not less than 10 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 records 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
records 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 Records; Record Date; Stockholders' List
(a) In order to determine the holders of record of the capital stock of the
Corporation who are en titled 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 records shall be closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting
of stockholders, such records shall be closed for at least 10 days
immediately preceding such meeting.
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(c) In lieu of closing the stock transfer records, 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 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 records 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 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
records 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 records shall be prima facie evidence as to
the stockholders entitled to examine such list or stock transfer
records 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 re quirements 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.
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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 Chairman of the meeting or 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 all 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.
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(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.
Election 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 Articles of Incorporation, each
stockholder shall be en titled, 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 stock transfer records 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, vote by voice or
vote by written consent in lieu of meeting.
(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
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(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, without prior
notice 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.
(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 General 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 stockholder action is taken by written consent in lieu of meeting
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 ap plicable proxy or informational rules adopted
pursuant to the Securities Exchange Act of 1934, as amended (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
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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
pledger 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) 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. 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.
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(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 ob tained in violation of any applicable laws,
including, without limitation, the requirements 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.
(b) 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. 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.
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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 Articles
of Incorporation or in a stockholders' agreement.
(2) If any such provision is made in the Articles 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 Articles of Incorporation
or stockholders' agreement.
(3) In the event that the Corporation, pursuant to due and valid
authorization by the Board of Directors, enters into an
agreement relied on by a third party which requires specific
actions by the Board of Directors in the future (e.g., the
granting of proxies to vote shares in a subsidiary or the
election of a person, or the designee of a person to a
corporate office), then the Corporation's future Boards of
Directors shall be bound to honor such agreement, unless such
agreement is inconsistent with applicable laws.
(b) Directors need not be residents of this state or stockholders of the
Corporation unless the Ar ticles of Incorporation so require.
(c) The Board of Directors shall have authority to fix the compensation of
Directors based on recommendations of its compensation committee unless
otherwise provided in the Articles 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 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 Articles of
Incorporation or these Bylaws, as to matters within its designated
authority, which committee the Director reasonably believes to merit
confidence.
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(f) A Director shall not be considered to be acting in good faith if he or
she has knowledge con cerning 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 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 Directors or to decrease it to not less than one
member, provided that no decrease in the number of Directors
shall deprive a serving Director of the right to serve
throughout the term of his or her election.
(3) Whenever the Board of Directors is comprised of three or more
members, at least on such member shall be a person other than
a holder of ten percent or more of any class of the
Corporation's capital stock, an officer or employee of the
Corporation, or a person related to any such person (such
director or directors being hereinafter referred to as
"Independent Director(s)".
(b) Each person named in the Articles of Incorporation as a member of the
initial Board of Direc tors 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 Director 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.
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(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 Directors are classified and the number 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
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 50% plus one of the shares
entitled to attend and vote at the election of Directors; provided that
at least one Director remains in office or one Director is elected as a
replacement Director concurrently with such removal.
(b) In the event that the number of Directors is reduced below the number
mandated in the Articles 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.
(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.
(c) The act of a majority of the Directors present at a Board meeting at
which a quorum is present shall be the act of the Board of Directors.
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(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.
(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, unless the committee is required to maintain a
membership comprised of a majority of Independent Directors, in which
case an act of the committee will require the affirmative vote of a
majority of all Independent Directors who are eligible to attend and
vote as well as a majority of those present and voting.
(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; however, 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.
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:
(1) The fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes,
approves or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes
or consents of such interested Directors; or
(2) The fact of such relationship or interest is disclosed or
known to the stockholders en titled to vote and they
authorize, approve or ratify such contract or transaction by
vote or written consent; or
(3) The contract or transaction is fair and reasonable as to the
Corporation at the time it is authorized by the Board, 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
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c) 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 Articles 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.
(d) The Board, by resolution adopted in accordance with Section 6(a) of
this Article II, may desig nate one or more 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.
(e) 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.
(f) The Board of Directors shall at every organizational meeting thereof
designate the following committees comprised in each case of a majority
of Independent Directors:
(1) An audit committee;
(7) A derivative litigation committee;
(8) A compensation committee;
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(9) A regulatory compliance committee; and
(10) A nominating committee.
(g) The audit committee shall be responsible for selection of the auditor
for the Corporation's financial statements, which must be a certified
public accountant that is a member of the AICPA's Securities Practice
Section and already successfully subjected to peer review, for
supervision of the annual audit and for review of all financial data
submitted by the Corporation to the Commission.
(h) (1) No stockholder may assert a derivative cause of action on
behalf of the Corporation, rather, any claims that would give
rise to derivative causes of action shall be submitted in
writing, specifying the nature of the cause of action and
providing all evidence associated with such claim, to a the
derivative litigation committee of the Board of Directors.
(2) The derivative litigation committee shall be comprised of
members who do not also serve as officers of the Corporation
and who are not reasonably involved with the subject cause of
action.
(3) In the event that, due to the nature of the litigation
involved, no such directors are serving, then its duties shall
be delegated by the Board of Directors to a specially selected
legal counsel who is not otherwise representing the
Corporation, provided that no attorney so designated or his or
her partners hold shares of the Corporation's securities, hold
any office or position with the Corporation or be related by
marriage or through siblings, parents or children to any
officer or director of the Corporation.
(4) The decision to litigate, or not to litigate by such special
committee or special counsel shall be binding on the
Corporation and the submitting stockholder or stockholders
unless the foregoing procedure has not been initiated within
30 days after completion of the submission by the subject
litigant.
(g) (1) The compensation committee shall have exclusive
jurisdiction to develop compensation plans and alternatives
for all executive officers and directors of the Corporation,
and shall be responsible for development, implementation and
awards under any benefit plans covering the Corporation's
directors, officers or employees which, after proposal by the
compensation committee, are adopted by the Board of Directors
or the stockholders of the Corporation.
(2) Plans or proposals developed by the compensation committee
must be submitted for ratification to the Board of Directors,
and, if approved thereby, shall, if required by applicable
laws, be submitted for ratification to the Corporation's
stockholders.
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(3) The Corporation's chief financial officer, a designee of the
Corporation's auditors and a designee of the Corporation's
general counsel shall serve as ex officio, non-voting members
of the compensation committee.
(c) The regulatory compliance committee shall be responsible for review and
approval of all filings by the Corporation with the Commission and any
other federal regulatory body with which the Corporation is regularly
required to file information involving matters not under the
jurisdiction of the audit committee, and shall supervise the
preparation by the Corporation's general counsel of summary materials
concerning all such reports as may be required to permit all members of
the Board of Directors to make informed decisions concerning approval
or ratification of any such reports.
(d) The nominating committee shall conduct ongoing searches for candidates
to corporate offices, for candidates to the Corporation's board of
directors and for membership in committees of the Corporation's board
of directors, and, in each instance when it makes recommendations for
any such position, shall submit more qualified candidates, if
reasonably possible, than there are positions to fill so that the Board
of Directors and stockholders will be presented with more than one
alternative.
(e) Any committee, may, if required for purposes of independence, be
comprised of a single voting member.
(f) Notwithstanding the foregoing, in the event that the Corporation is a
controlled subsidiary of another corporation and the parent corporation
is ultimately responsible for the matters delegated to the audit
committee, derivative litigation committee, compensation committee,
regulatory compliance committee, or nominating committee, then the
requirements for such committees as to this Corporation may be
dispensed with.
SECTION 7. Place, Time, Notice and Call 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) (1) 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.
(b) 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
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without notice other than such resolution.
(c) 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.
(d) (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, by
telegram, by telephone, by e-mail or by facsimile
transmission; or at least five days prior thereto if
mailed.
(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 or e-mail), such notice shall be deemed
delivered when the call is completed.
(E) Notwithstanding the foregoing: if an emergency
meeting of the Board of Directors or any committee
thereof is required and notice as provided above
cannot be reasonably provided within the time periods
required, then:
(a) Notice shall be provided by all of the
foregoing means and to all members, whether
or not at the locations normally established
for receipt of notice, establishing that an
emergency meeting will be held at a
specified time through teleconference in
which each member must be able to
participate, if he or she so elect;
(b) The time set for the emergency meeting must
be the maximum amount of time following the
provision or attempted provision of notice
as is reasonable under the circumstances;
(c) If a quorum is established, then temporary
required actions may be authorized, subject
to ratification at a regularly called
special meeting to be held within two days
after at the emergency meeting, and if not
so ratified, any such actions shall be
immediately discontinued, and to the extent
reasonably possible, undone.
(c) (1) Notice of a meeting of the Board of Directors need not be given
to any Director who
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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 of 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 hear 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.
(b) If not contrary to applicable law, Directors may take action as the
Board of Directors or com mittees thereof through a written consent to
action signed by a number 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 Directors required for such
action.
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SECTION 9. Compensation
(a) The 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 Board of Directors, based on
proposals submitted by the compensation committee of the Board of
Directors.
(b) 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 Director 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 or she 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.
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, provided that there are
three or more directors then serving, 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.
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(2) Such other officers and assistance 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 suc cessor; however, any Officer of the
Corporation may be removed from office by the Board of Directors or, if
appointed by another Officer pursuant to authority delegated by the
Board of Directors, by such appointing Officer, whenever in its, his or
her judgment the best interests of the Corporation will be served
thereby.
(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.
SECTION 4. Powers and duties
(a) Chairman:
The Chairman of the Board of Directors (hereinafter referred to as the
"Chairman"):
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(1) Shall preside over meetings of the Board of Directors and the
stockholders.
(2) Unless a separate Chief Executive Officer is elected, shall
exercise the powers hereafter granted to that office.
(3) Unless a Chairman of the Board is specifically elected, shall
be the President.
(b) Chief Executive Officer:
(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) Chief Operating Officer
(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) The Chief Operating Officer shall be responsible for the
general day-to-day supervision of the business and affairs of
the Corporation.
(3) The Chief Operating Officer 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) Unless otherwise provided by specific resolution of the Board
of Directors, the President shall be the Chief Operating
Officer of the Corporation.
(d) President
(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.
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(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) Chief Financial Officer
(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,
subject to the supervision of the audit committee, for
coordination with the Corporation's outside auditors.
(2) The Chief Financial Officer shall be responsible for keeping
the audit 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 Commission and with other
federal, state or local governmental agencies.
(4) The Chief Financial Officer shall be responsible for keeping
the regulatory committee fully and timely informed of all
matters under its jurisdiction.
(f) Vice President(s)
(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) Secretary
(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.
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(2) The Secretary shall, unless a chief legal officer is elected,
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 records of
the Corporation, or of supervising the maintenance of the
stock transfer records of the Corporation by the transfer
agent, if any, of the Corporation.
(3) 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.
(4) 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) Treasurer
(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.
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(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) General Counsel & Chief Legal Officer:
(1) The 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.
(1) Other subordinate, deputy or assistant officers may be
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.
(2) Persons so appointed 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, that appointed them, 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 be fixed by the
Board of Directors based on recommendations by the compensation
committee of 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 lend money to, guarantee any obligation of, or
otherwise assist any Of ficer 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, whenever, in the judgment of the
Directors, such loan, guarantee or assistance may reasonably be
expected to benefit the Corporation.
(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 including, without limitation, a pledge of
shares of stock of the Corporation.
(c) Nothing in this Article shall be deemed to deny, limit or restrict the
powers of guarantee or warranty of this Corporation at common law or
under any statute.
ARTICLE V
STOCK CERTIFICATES; VOTING TRUSTS; TRANSFERS
SECTION 1. Certificates Representing Shares
To the extent legally permitted by the laws of the United States and
the State of Florida, in the event that the Corporation has 100 or more
stockholders, records of the holders of the Corporation's capital stock shall be
maintained through stock transfer record entry with a transfer agent registered
and in good standing with the Commission and certificates evincing ownership of
capital stock shall not be issued, except at the request of a stockholder in
which case they shall be issued as provided below, at the stockholders' expense:
(a) (1) Subject to the foregoing, every holder of shares of this
Corporation shall be entitled to one or more certificates
representing all shares to which he, she or it 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.
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(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:
(1) The name of the Corporation;
(2) That the Corporation is organized under the laws of the State
of Florida;
(3) The name of the person or persons to whom issued;
(4) The number and class of shares, and the designation of the
series, if any, which such certificate represents;
(5) The date of issuance; and
(6) 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, services provided where other
than as represented, 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.
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(6) For purposes of Commission Rule 144, the holding period for the
company's securities shall be the initial date recorded in the
Corporation's stock transfer record entry system for the issuance or
transfer thereto to the subject holder, subject to the tacking
provisions of such rule, unless a failure of consideration is
determined to exist pursuant to the preceding paragraph, in which case
the holding period will be deemed to have tolled until a legally
binding determination is obtained concerning when the subject
securities were, in fact, fully paid for.
SECTION 2. Transfer records
(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
stock transfer record (or stock transfer records where more than one
kind, class, or series of stock is outstanding) to be known as the
Official Stock Transfer Registry, 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 Transfer Registry is kept in the office of the transfer
agent, the Corporation shall keep at its chief administrative offices
copies of the stock lists prepared from said Stock Transfer Registry
and sent to it from time to time (but not less frequently than every
month) by the transfer agent.
(c) The Stock Transfer Registry 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, not to exceed
three days.
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
records 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 records 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
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transfer agent of the Corporation, shall direct that such
transfer be effected in a written instrument complying with
the securities industry requirements for stock and bond
powers, bearing a medallion guarantee or such other
requirements as may from time to time be promulgated by the
Commission, and, if a certificate therefor has been issued,
shall require surrender the Certificate representing such
shares for cancellation concurrently with the request for
transfer.
(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 stock transfer
records 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:
(1) Such shares are subject to transfer restrictions under
applicable Commission rules;
(2) Transfer of the shares has been restricted due to lack of
consideration, fraud in the inducement or other legally
cognizable reasons heretofore described; or
(3) 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 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 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;
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(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;
(B) If the Corporation has a class of securities registered
under Section 12 of the Exchange Act, an affidavit from
the Holder affirming that all reports required to be
filed by the Holder with the Commission pursuant to
Sections, 13, 14 and 16 of the Exchange Act (e.g.,
Forms 3, 4 and 5, and Schedules 13D or 13G), have been
filed; and
(C) 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
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without registration under applicable federal and
state securities laws and regulations, detailing the
manner in which they are being complied with or the
reasons that they are not applicable and, if the
Corporation has a class of securities registered
under Section 12 of the Exchange Act, asserting that
after diligent inquiry, such counsel confirms that
all reports required to be filed by the Holder with
the Commission pursuant to Sections, 13, 14 and 16 of
the Exchange Act (e.g., Forms 3, 4 and 5, and
Schedules 13D or 13G), have been filed.
(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 Board of Directors or a court of
competent jurisdiction located in the county where the
Corporation's Chief Legal Officer maintains its principal
offices).
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, if certificates have been issued, tender 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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(3) The Corporation shall have no liability to any stockholder
participating in a voting trust as a result of any actions or
failures to act by the trustee.
(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 or any other provisions in these
Bylaws, 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,
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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 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.
(1) 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 at least five business days prior
written demand stating the purpose thereof, shall;
subject to the qualifications contained in subsection
(2) hereof, have the right to examine, in person or by
agent or attorney, at any reasonable business time or
times, for any purpose, its relevant books and records
of account, minutes and records of stockholders and to
make extracts therefrom, provided that, to the extent
legally permitted, such person shall be required to
reimburse the Corporation for the actual costs of any
reasonable expenses occasioned thereby.
(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, this Corporation
shall prepare not later than 70 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 40 days
after the close of each fiscal
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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 chief administrative office of the Corporation and shall
be subject to inspection during business hours by any stockholder or
holder of voting trust certificates, in person or by agent, provided
that, to the extent legally permitted, such person shall be required to
reimburse the Corporation for the actual costs of any reasonable
expenses occasioned thereby.
(8) Notwithstanding the foregoing, in the event that this Corporation is
part of a group of corporation's which, pursuant to GAAP, is eligible
to have financial statements prepared on a consolidated basis, then the
inclusion of the Corporation's financial data, prepared in accordance
with GAAP, shall satisfy the requirements of this Article, unless
otherwise required under applicable provisions of federal securities
laws.
ARTICLE VII
DIVIDENDS & OTHER STOCKHOLDER BENEFITS
SECTION 1. Dividends
The Board of Directors of the Corporation may, from time to time,
declare, and the Corpora tion may pay dividends on its own shares, except when
the Corporation is insolvent or when the pay ment 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.
(b) If the Corporation shall engage in the business of exploiting natural
resources or other wasting assets and if the Articles of Incorporation
so provide, 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.
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(c) Dividends may be declared and paid in the Corporation's treasury
shares, in shares of the capital stock or other securities of the
Corporation's subsidiaries, in the shares of capital stock or other
securities of other issuers held by the Corporation or in any other
assets owned by the Corporation which are capable of equitable
distribution to the Corporation's stockholders, in proportion to their
ownership of equity interests in the Corporation, or in classes or
series thereof, inter se.
(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:
(1) 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.
(2) If a dividend is payable in the Corporations' own shares
without par value, such shares shall be issued at a stated
value fixed by the Board of Directors by resolution 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 Articles of Incorporation so
provide 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 in 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.
SECTION 2. Other Stockholder Benefits
The Board of Directors may, subject to the restrictions involving
impairment of the Corporation's capital applicable to declaration of dividends,
enter into arrangements with any other person or entity, including affiliates of
the Corporation or its officers, directors or stockholders, designed to provide
a benefit or benefits directly to the Corporation's stockholders, including,
without limitation, the payment for services provided by the Corporation by
making distributions of assets, rights or benefits directly to the Corporation's
stockholders.
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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 incor poration.
ARTICLE IX
INDEMNIFICATION
(a) This Corporation shall indemnify its officers, Directors and authorized
agents for all liabilities incurred directly, indirectly or
incidentally to services performed for the Corporation, or for other
entities at the request of the Corporation, to the fullest extent
permitted under Florida law now existing or hereinafter enacted.
(b) Funds required to pay expenses reasonably necessary to defend
allegations that would raise the foregoing right of indemnifications
shall be advanced by this Corporation at any time that the person
claiming such expenses appears reasonably likely to become entitled to
indemnification and enters into a binding agreement with this
Corporation to repay advances for such expenditures in the event that
he, she or it is eventually found not to be entitled thereto.
(c) In the event that there are any questions raised concerning the
legality of indemnification, they will be referred by the Board of
Directors to the derivative litigation committee for resolution, or if
such committee is disqualified, to an independent legal counsel in the
manner established in these Bylaws for making decisions involving
derivative litigation.
ARTICLE X
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to amend, alter, or repeal
these Bylaws, and to adopt new bylaws unless the bylaw involved was passed by
the stockholders' in a resolution reserving the right to its amendment or repeal
to the stockholders.
ARTICLE XI
FISCAL YEAR
The fiscal year of this Corporation shall be determined by the Board of
Directors and, subject to compliance with applicable laws, may be modified from
time to time by the Board of Directors.
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ARTICLE XII
MEDICAL REIMBURSEMENT
SECTION 1. Benefits
(a) The Corporation may, subject to approval by the Board of Directors of a
plan proposed by its compensation committee, reimburse all employees
for expenses incurred by themselves and their dependents, as defined in
Section 152 (or any successor provision thereto) 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.
SECTION 2. Employees Defined
The term "employees" as used in this medical expense plan is hereby
defined to include all in dividuals 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;
(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.
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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; 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
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, in which such case determination will be
made by the compensation committee of the Board of Directors.
The Undersigned, being the duly elected and acting Secretary of the
Corporation, hereby cer tifies that the foregoing constitute the validly adopted
and true Bylaws of the Corporation, as of the date set forth below.
Dated: June 25, 1999 ------------------------
Michael D. Umile
Secretary
(Corporate Seal)
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