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* * * * * * *
AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of November 19, 1996)
* * * * * * *
2
AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of November 19, 1996)
TABLE OF CONTENTS
Title Page
ARTICLE I
OFFICES 1
Section 1. Principal Office. 1
Section 2. Other Offices. 1
ARTICLE II
STOCKHOLDERS 1
Section 1. Annual Meeting 1
Section 2. Special Meetings 1
Section 3. Place of Meeting 1
Section 4. Notice of Meeting 2
Section 5. Notice of Adjourned Meeting 2
Section 6. Waiver of Call and Notice of Meeting 2
Section 7. Quorum 2
Section 8. Adjournment; Quorum for Adjourned Meeting 2
Section 9. Voting on Matters Other than
Election of Directors 3
Section 10. Voting for Directors 3
Section 11. Voting Lists 3
Section 12. Voting of Shares 3
Section 13. Proxies 3
Section 14. Informal Action by Stockholders 4
Section 15. Inspectors 4
ARTICLE III
BOARD OF DIRECTORS 4
Section 1. General Powers 4
Section 2. Number, Election, Tenure and Qualifications 4
Section 3. Annual Meeting 5
Section 4. Regular Meetings 5
Section 5. Special Meetings 5
Section 6. Notice 5
Section 7. Quorum 5
Section 8. Adjournment; Quorum for Adjourned Meeting 5
Section 9. Manner of Acting 6
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Section 10. Removal 6
Section 11. Vacancies 6
Section 12. Compensation 6
Section 13. Presumption of Assent 6
Section 14. Informal Action by Board 6
Section 15. Meeting by Telephone, Etc. 7
ARTICLE IV
OFFICERS 7
Section 1. Number 7
Section 2. Appointment and Term of Office 7
Section 3. Resignation 7
Section 4. Removal 7
Section 5. Vacancies 7
Section 6. Duties of Officers 7
Section 7. Salaries 8
Section 8. Delegation of Duties 8
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES 8
Section 1. Creation of Committees 8
Section 2. Executive Committee 8
Section 3. Other Committees 9
Section 4. Removal or Dissolution 9
Section 5. Vacancies on Committees 9
Section 6. Meetings of Committees 9
Section 7. Absence of Committee Members 10
Section 8. Quorum of Committees 10
Section 9. Manner of Acting of Committees 10
Section 10. Minutes of Committees 10
Section 11. Compensation 10
Section 12. Informal Action 10
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS 10
Section 1. General 10
Section 2. Actions by or in the Right of the Corporation 11
Section 3. Determination that Indemnification Is Proper 12
Section 4. Evaluation and Authorization 12
Section 5. Prepayment of Expenses 12
Section 6. Prompt Consideration 13
Section 7. Nonexclusivity and Limitations 13
Section 8. Continuation of Indemnification Right 13
Section 9. Insurance 14
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ARTICLE VII
INTERESTED PARTIES 14
Section 1. General 14
Section 2. Determination of Quorum 14
Section 3. Approval by Stockholders 14
ARTICLE VIII
CERTIFICATES OF STOCK 15
Section 1. Certificates for Shares 15
Section 2. Signatures of Past Officers 15
Section 3. Transfer Agents and Registrars 15
Section 4. Transfer of Shares 16
Section 5. Lost Certificates 16
ARTICLE IX
RECORD DATE 16
Section 1. Record Date for Stockholder Actions 16
Section 2. Record Date for Dividend and
Other Distributions 17
ARTICLE X
DIVIDENDS 17
ARTICLE XI
FISCAL YEAR 17
ARTICLE XII
SEAL 17
ARTICLE XIII
STOCK IN OTHER CORPORATIONS 17
ARTICLE XIV
AMENDMENTS 18
ARTICLE XV
EMERGENCY BY-LAWS 18
Section 1. Scope of Emergency By-laws 18
Section 2. Call and Notice of Meeting 18
Section 3. Quorum and Voting 18
Section 4. Appointment of Temporary Directors 18
Section 5. Modification of Lines of Succession 19
Section 6. Change of Principal Office 19
Section 7. Limitation of Liability 19
Section 8. Amendment or Repeal 19
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ARTICLE XVI
PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION 19
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AMENDED AND RESTATED
BY-LAWS
OF
PUBLIX SUPER MARKETS, INC.
(Effective as of November 19, 1996)
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of
Publix Super Markets, Inc. (the "Corporation") shall initially
be located in Polk County, Florida. Its location may thereafter
be changed to be at such place within or without the State of
Florida as the Board of Directors of the Corporation (the "Board
of Directors" or the "Board") shall from time to time determine.
Section 2. Other Offices. The Corporation may also
have offices at such other places both within and without the
State of Florida as the Board of Directors or the officers of
the Corporation acting within their authority may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the
stockholders shall be held between January 1 and December 31,
inclusive, in each year for the purpose of electing directors
and for the transaction of such other proper business as may
come before the meeting. The exact date of the meeting shall be
established by the Board of Directors from time to time.
Section 2. Special Meetings. Special meetings of the
stockholders may be called, for any purpose or purposes, by the
Board of Directors or the Chairman of the Board. Special
meetings of the stockholders shall be called by the Chairman of
the Board, the President or the Secretary if the holders of not
less than ten (10) percent of all the votes entitled to be cast
on any issue proposed to be considered at such special meeting
sign, date and deliver to the Secretary one or more written
demands for a special meeting, describing the purpose(s) for
which it is to be held. Special meetings of the stockholders of
the Corporation may not be called by any other person or
persons. Notice and call of any such special meeting shall
state the purpose or purposes of the proposed meeting, and
business transacted at any special meeting of the stockholders
shall be limited to the purposes stated in the notice thereof.
Section 3. Place of Meeting. The Board of Directors
may designate any place, either within or without the State of
Florida, as the place of meeting for any annual or special
meeting of the stockholders. If no designation is made, the
place of meeting shall be the principal office of the
Corporation in the State of Florida.
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Section 4. Notice of Meeting. Written notice stating
the place, day and hour of an annual or special meeting and, in
the case of a special meeting, the purpose or purposes for which
it is called shall be given no fewer than ten (10) nor more than
sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, except that no
notice of a meeting need be given to any stockholders for which
notice is not required to be given under applicable law. Notice
may be delivered personally, via United States mail, telegraph,
teletype, facsimile or other electronic transmission, or by
private mail carriers handling nationwide mail services, by or
at the direction of the President, the Secretary, the Board of
Directors, or the person(s) calling the meeting. If mailed via
United States mail, such notice shall be deemed to be delivered
when deposited in the United States mail, addressed to the
stockholder at the stockholder's address as it appears on the
stock transfer books of the Corporation, with postage thereon
prepaid. If the notice is mailed at least thirty (30) days
before the date of the meeting, the mailing may be by a class of
United States mail other than first class.
Section 5. Notice of Adjourned Meeting. If a
stockholders' meeting is adjourned to a different date, time or
place, notice need not be given of the new date, time or place
if the new date, time or place is announced at the meeting
before an adjournment is taken; and any business may be
transacted at the adjourned meeting that might have been
transacted on the original date of the meeting. If, however, a
new record date for the adjourned meeting is or must be fixed
under law, notice of the adjourned meeting must be given to
persons who are stockholders as of the new record date and who
are otherwise entitled to notice of such meeting.
Section 6. Waiver of Call and Notice of Meeting. Call
and notice of any stockholders' meeting may be waived by any
stockholder before or after the date and time stated in the
notice. Such waiver must be in writing signed by the
stockholder and delivered to the Corporation. Neither the
business to be transacted at nor the purpose of any meeting need
be specified in such waiver. A stockholder's attendance at a
meeting (a) waives such stockholder's ability to object to lack
of notice or defective notice of the meeting, unless the
stockholder at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting, and
(b) waives such stockholder's ability to object to consideration
of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the
stockholder objects to considering the matter when it is
presented.
Section 7. Quorum. Except as otherwise provided in
these By-laws or in the Articles of Incorporation of the
Corporation , a majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at any meeting of the stockholders.
Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting, unless a new
record date is or must be set for that adjourned meeting; and
the withdrawal of stockholders after a quorum has been
established at a meeting shall not affect the validity of any
action taken at the meeting or any adjournment thereof.
Section 8. Adjournment; Quorum for Adjourned Meeting.
If less than a majority of the outstanding shares are
represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without
further notice. At such adjourned meeting at which a quorum
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shall be present, any business may be transacted which might
have been transacted at the meeting as originally noticed.
Section 9. Voting on Matters Other than Election of
Directors. At any meeting at which a quorum is present, action
on any matter other than the election of directors shall be
approved if the votes cast by the holders of shares represented
at the meeting and entitled to vote on the subject matter
favoring the action exceed the votes cast opposing the action,
unless a greater number of affirmative votes or voting by
classes is required by law, the Articles of Incorporation of the
Corporation or these By-laws.
Section 10. Voting for Directors. Directors shall be
elected by a plurality of the votes cast by the shares entitled
to vote at a meeting at which a quorum is present.
Section 11. Voting Lists. At least ten (10) days prior
to each meeting of stockholders, the officer or agent having
charge of the stock transfer books for shares of the Corporation
shall make a complete list of the stockholders entitled to vote
at such meeting, or any adjournment thereof, with the address
and the number, class and series (if any) of shares held by
each. The list shall be subject to inspection by any
stockholder during normal business hours for at least ten (10)
days prior to the meeting. The list also shall be available at
the meeting and shall be subject to inspection by any
stockholder at any time during the meeting or its adjournment.
The list shall be prima facie evidence as to who are the
stockholders entitled to examine such list or the transfer books
and to vote at any meeting of the stockholders.
If the requirements of this Section have not been
substantially complied with, the meeting shall be adjourned on
the demand of any stockholder (in person or by proxy) until
there has been substantial compliance with the requirements. If
no demand for adjournment is made, failure to comply with the
requirements of this Section does not affect the validity of any
action taken at the meeting.
Section 12. Voting of Shares. Except as otherwise
provided in the Articles of Incorporation of the Corporation,
each stockholder entitled to vote shall be entitled at every
meeting of the stockholders to one vote in person or by proxy on
each matter for each share of voting stock held by such
stockholder. Such right to vote shall be subject to the right
of the Board of Directors to fix a record date for voting
stockholders as hereinafter provided. Treasury shares, and
shares of stock of the Corporation owned directly or indirectly
by another corporation the majority of the voting stock of which
is owned or controlled by the Corporation, shall not be voted at
any meeting and shall not be counted in determining the total
number of outstanding shares.
Section 13. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy, executed in writing and delivered
to the Corporation in the original or transmitted via telegram,
or as a photographic, photostatic or equivalent reproduction of
a written proxy by the stockholder or by the stockholder's duly
authorized attorney-in-fact. No proxy shall be valid after
eleven (11) months from its date, unless the proxy provides for
a longer period. Each proxy shall be filed with the Secretary
before or at the time of the meeting. A proxy may be revoked at
the pleasure of the record owner of the shares to which it
relates, unless the proxy provides otherwise. In the event
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that a proxy shall designate two or more persons to act as
proxies, a majority of such persons present at the meeting, or,
if only one is present, that one, shall have all of the powers
conferred by the proxy upon all the persons so designated,
unless the instrument shall provide otherwise.
Section 14. Informal Action by Stockholders. Unless
otherwise provided in the Articles of Incorporation of the
Corporation, any action required or permitted to be taken at a
meeting of the stockholders may be taken by means of one or more
written consents that satisfy the requirements set forth below.
In such event, no meeting, prior notice or formal vote shall be
required. To be effective, a written consent (which may be in
one or more counterparts) shall set forth the action taken and
shall be signed by stockholders holding shares representing not
less than the minimum number of votes of each voting group
entitled to vote thereon that would be necessary to authorize or
take such action at a meeting at which all voting groups and
shares entitled to vote thereon were present and voted. No
written consent shall be effective unless, within sixty (60)
days of the date of the earliest dated consent delivered to the
Secretary, written consent signed by the number of stockholders
required to take action is delivered to the Secretary. If
authorization of an action is obtained by one or more written
consents but less than all stockholders so consent, then within
ten (10) days after obtaining the authorization of such action
by written consents, notice must be given to each stockholder
who did not consent in writing and to each stockholder who is
not entitled to vote on the action. The notice shall fairly
summarize the material features of the authorized action and, if
the action be such for which dissenters' rights are provided
under the Florida Business Corporation Act, the notice shall
contain a clear statement of the right of stockholders
dissenting therefrom to be paid the fair value of their shares
upon compliance with the provisions of the Florida Business
Corporation Act regarding the rights of dissenting stockholders.
Section 15. Inspectors. For each meeting of the
stockholders, the Board of Directors or the Chairman of the
Board may appoint two inspectors to supervise the voting. If
inspectors are so appointed, all questions respecting the
qualification of any vote, the validity of any proxy and the
acceptance or rejection of any vote shall be decided by such
inspectors. Before acting at any meeting, the inspectors shall
take an oath to execute their duties with strict impartiality
and according to the best of their ability. If any inspector
shall fail to be present or shall decline to act, the Chairman
of the Board shall appoint another inspector to act in his or
her place. In case of a tie vote by the inspectors on any
question, the presiding officer shall decide the issue.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of
the Corporation shall be managed by its Board of Directors,
which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law, the Articles of
Incorporation of the Corporation or these By-laws directed or
required to be exercised or done only by the stockholders.
Section 2. Number, Election, Tenure and Qualifications.
The number of directors of the Corporation shall be not less
than three (3) nor more than fifteen (15). The exact number of
directors shall be fixed by resolution adopted by a vote of a
majority of the then authorized number of directors; provided
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that no decrease in the number of directors shall have the
effect of shortening the term of any then incumbent director.
At each annual meeting of stockholders, the stockholders shall
elect directors to hold office until the next succeeding annual
meeting. Each director shall hold office until his or her term
of office expires and until such director's successor is elected
and qualifies, unless such director sooner dies, resigns or is
removed by the stockholders at any annual or special meeting.
It shall not be necessary for directors to be stockholders or
residents of the State of Florida. All directors shall be
natural persons who are 18 years of age or older.
Section 3. Annual Meeting. Promptly after each annual
meeting of stockholders, the Board of Directors shall hold its
annual meeting for the purpose of the election of officers and
the transaction of such other business as may come before the
meeting. If such meeting is held at the same place as and
immediately following such annual meeting of stockholders and if
a majority of the directors are present at such place and time,
no prior notice of such meeting shall be required to be given to
the directors.
Section 4. Regular Meetings. Regular meetings of the
Board of Directors may be held without notice at such time and
at such place as shall be determined from time to time by the
Board of Directors.
Section 5. Special Meetings. Special meetings of the
Board of Directors may be called by the Chairman of the Board,
the President or any two directors. The person or persons
authorized to call special meetings of the Board of Directors
may fix the place for holding any special meetings of the Board
of Directors called by such person or persons. If no such
designation is made, the place of meeting shall be the principal
office of the Corporation in the State of Florida.
Section 6. Notice. Whenever notice of a meeting is
required, written notice stating the place, day and hour of the
meeting shall be delivered at least two (2) days prior thereto
to each director, either personally, or by first-class United
States mail, telegraph, teletype, facsimile or other form of
electronic communication, or by private mail carriers handling
nationwide mail services, to the director's business address.
If notice is given by first-class United States mail, such
notice shall be deemed to be delivered five (5) days after
deposited in the United States mail so addressed with postage
thereon prepaid or when received, if such date is earlier. If
notice is given by telegraph, teletype, facsimile transmission
or other form of electronic communication or by private mail
carriers handling nationwide mail services, such notice shall be
deemed to be delivered when received by the director. Any
director may waive notice of any meeting, either before, at or
after such meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except
where a director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting
is not lawfully called or convened and so states at the
beginning of the meeting or promptly upon arrival at the
meeting.
Section 7. Quorum. A majority of the total number of
directors as determined from time to time to comprise the Board
of Directors shall constitute a quorum.
Section 8. Adjournment; Quorum for Adjourned Meeting.
If less than a majority of the total number of directors are
present at a meeting, a majority of the directors so present may
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adjourn the meeting from time to time without further notice.
At any adjourned meeting at which a quorum shall be present, any
business may be transacted that might have been transacted at
the meeting as originally noticed.
Section 9. Manner of Acting. If a quorum is present
when a vote is taken, the act of a majority of the directors
present at the meeting shall be the act of the Board of
Directors unless otherwise provided in the Articles of
Incorporation of the Corporation.
Section 10. Removal. Any director may be removed by the
stockholders, with or without cause, at any meeting of the
stockholders called expressly for that purpose. Any such
removal shall be without prejudice to the contract rights, if
any, of the person removed.
Section 11. Vacancies. Any vacancy occurring in the
Board of Directors, including any vacancy created by reason of
an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors,
though less than a quorum of the Board of Directors, or by the
stockholders, unless otherwise provided in the Articles of
Incorporation of the Corporation. The term of a director
elected to fill a vacancy shall expire at the next following
annual meeting of stockholders, and the person elected shall
hold office until such time and until such director's successor
is elected and qualifies, unless such director sooner dies,
resigns or is removed by the stockholders at any annual or
special meeting.
Section 12. Compensation. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors, a stated salary as directors and/or such other
reasonable compensation as may be determined by the Board from
time to time. No payment shall preclude any director from
serving the Corporation in any other capacity and receiving
compensation therefor.
Section 13. Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall
be presumed to have assented to the action taken unless such
director objects at the beginning of the meeting (or promptly
upon his or her arrival) to the holding of the meeting or the
transacting of specified business at the meeting or such
director votes against such action or abstains from voting in
respect of such matter.
Section 14. Informal Action by Board. Any action
required or permitted to be taken by any provisions of law, the
Articles of Incorporation of the Corporation or these By-laws at
any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if each and every member
of the Board or of such committee, as the case may be, signs a
written consent thereto and such written consent is filed in the
minutes of the proceedings of the Board or such committee, as
the case may be. Action taken under this section is effective
when the last director signs the consent, unless the consent
specifies a different effective date, in which case it is
effective on the date so specified.
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Section 15. Meeting by Telephone, Etc. Directors or the
members of any committee thereof shall be deemed present at a
meeting of the Board of Directors or of any such committee, as
the case may be, if the meeting is conducted using a conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other at
the same time.
ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation
shall consist of a Chairman of the Board, a Chairman of the
Executive Committee, a President, a Secretary and a Treasurer,
each of whom shall be appointed by the Board of Directors. The
Board of Directors may also appoint one or more vice presidents,
one or more assistant secretaries and assistant treasurers and
such other officers as the Board of Directors shall deem appro
priate. The same individual may simultaneously hold more than
one office in the Corporation.
Section 2. Appointment and Term of Office. The
officers of the Corporation shall be appointed annually by the
Board of Directors at its annual meeting. If the appointment of
officers shall not be made at such meeting, such appointment
shall be made as soon thereafter as is convenient. Each officer
shall hold office until such officer's successor is appointed
and qualifies, unless such officer sooner dies, resigns or is
removed by the Board. The appointment of an officer does not
itself create contract rights. The failure to elect a Chairman
of the Board, a Chairman of the Executive Committee, a
President, a Secretary or a Treasurer shall not affect the
existence of the Corporation.
Section 3. Resignation. An officer may resign at any
time by delivering notice to the Corporation. A resignation
shall be effective when the notice is delivered unless the
notice specifies a later effective date. An officer's
resignation shall not affect the Corporation's contract rights,
if any, with the officer.
Section 4. Removal. The Board of Directors may remove
any officer at any time with or without cause. An officer's
removal shall not affect the officer's contract rights, if any,
with the Corporation.
Section 5. Vacancies. A vacancy in any office because
of death, resignation, removal, disqualification or otherwise
may be filled by the Board of Directors for the unexpired
portion of the term.
Section 6. Duties of Officers.
(a) The Chairman of the Board of the Corporation
shall be the chief executive officer of the Corporation and
shall, subject to the direction of the Board, have general
charge of the business and affairs of the Corporation. The
Chairman of the Board shall preside at all meetings of the Board
of Directors and of the stockholders.
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(b) The Chairman of the Executive Committee shall,
during the absence, sickness or other disability of the Chairman
of the Board, serve as the chief executive officer of the
Corporation. The Chairman of the Executive Committee shall
preside over meetings of the Executive Committee.
(c) The President shall be the chief operating and
administrative officer of the Corporation.
(d) The Secretary shall (i) be responsible for
preparing minutes of the directors' and stockholders' meetings
and for authenticating records of the Corporation, (ii) see that
all notices are duly given in accordance with the provisions of
the Articles of Incorporation of the Corporation, these By-laws
or as required by law, (iii) maintain custody of the corporate
records and the corporate seal, and (iv) have general charge of
the stock transfer books of the Corporation.
(e) The Treasurer shall (i) have charge and custody
of and be responsible for all funds of the Corporation and (ii)
receive and give receipts for monies due and payable to the
Corporation from any source whatsoever, and deposit monies in
the name of the Corporation in the banks, trust companies or
other depositaries as shall be selected by the Corporation.
(f) Subject to the foregoing, the officers of the
Corporation shall have such powers and duties as ordinarily
pertain to their respective offices and such additional powers
and duties specifically conferred by law, the Articles of
Incorporation of the Corporation and these By-laws, or as may be
assigned to them from time to time by the Board of Directors or
an officer authorized by the Board of Directors to prescribe the
duties of other officers.
Section 7. Salaries. The salaries of the officers
shall be fixed from time to time by the Board of Directors, and
no officer shall be prevented from receiving a salary by reason
of the fact that the officer is also a director of the
Corporation.
Section 8. Delegation of Duties. In the absence or
disability of any officer of the Corporation, or for any other
reason deemed sufficient by the Board of Directors, the Board
may delegate the powers or duties of such officer to any other
officer or to any other director for the time being.
ARTICLE V
EXECUTIVE AND OTHER COMMITTEES
Section 1. Creation of Committees. The Board of
Directors may designate an Executive Committee and one or more
other committees. Each committee so designated shall consist of
two (2) or more of the directors of the Corporation.
Section 2. Executive Committee. The Executive
Committee, if there shall be one, shall consult with and advise
the officers of the Corporation in the management of its
business. It shall have, and may exercise, except to the extent
otherwise provided in the resolution of the Board of Directors
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creating such Executive Committee, such powers of the Board of
Directors as can be lawfully delegated by the Board. Included
solely for information purposes, the following is a list of the
actions that, under Florida law in effect at the time of the
adoption of these By-laws, may not be delegated to a committee,
but the list shall be deemed automatically revised without
further action by the Board of Directors or the stockholders of
this Corporation upon and to the extent of any amendment to such
law:
(a) approve or recommend to stockholders actions or
proposals required by law to be approved by stockholders;
(b) fill vacancies on the Board of Directors or any
committee of the Board;
(c) adopt, amend or repeal these By-laws;
(d) authorize or approve the reacquisition of shares
unless pursuant to a general formula or method specified by the
Board of Directors; or
(e) authorize or approve the issuance or sale of
shares, or any contract to sell shares, or designate the terms
of a series or class of shares.
Section 3. Other Committees. Such other committees, to
the extent provided in the resolution or resolutions creating
them, shall have such functions and may exercise such powers of
the Board of Directors as can be lawfully delegated by the
Board. Notwithstanding the foregoing, no committee shall have
the authority to take any action listed in subsections (a)
through (e), inclusive, of Section 2 of this Article V.
Section 4. Removal or Dissolution. Any Committee of
the Board of Directors may be dissolved by the Board at any
meeting; and any member of such committee may be removed by the
Board of Directors with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person
so removed.
Section 5. Vacancies on Committees. Vacancies on any
committee of the Board of Directors shall be filled by the Board
of Directors at any meeting.
Section 6. Meetings of Committees. Regular meetings of
any committee of the Board of Directors may be held without
notice at such time and at such place as shall from time to time
be determined by such committee. Special meetings of any such
committee may be called by any member thereof upon two (2) days
notice of the date, time and place of the meeting given to each
of the other members of such committee, or on such shorter
notice as may be agreed to in writing by each of the other
members of such committee. Notice shall be given either
personally or in the manner provided in Section 6 of Article III
of these By-laws (pertaining to notice for directors' meetings).
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Section 7. Absence of Committee Members. The Board of
Directors may designate one or more directors as alternate
members of any committee of the Board of Directors, who may
replace at any meeting of such committee any member not able to
attend.
Section 8. Quorum of Committees. At all meetings of
committees of the Board of Directors, a majority of the total
number of members of the committee as determined from time to
time shall constitute a quorum for the transaction of business.
Section 9. Manner of Acting of Committees. If a quorum
is present when a vote is taken, the act of a majority of the
members of any committee of the Board of Directors present at
the meeting shall be the act of such committee.
Section 10. Minutes of Committees. Each committee of
the Board of Directors shall keep regular minutes of its
proceedings and report the same to the Board of Directors when
requested.
Section 11. Compensation. Members of any committee of
the Board of Directors may be paid compensation in accordance
with the provisions of Section 12 of Article III of these By-
laws (pertaining to compensation of directors).
Section 12. Informal Action. Any committee of the Board
of Directors may take such informal action and hold such
informal meetings as allowed by the provisions of Sections 14
and 15 of Article III of these By-laws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. General.
(a) To the fullest extent permitted by law and
consistent with the principles set forth in Section 1(c) below,
the Corporation shall indemnify any person who is or was a
party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or other type of proceeding
(other than an action by or in the right of the Corporation),
whether civil, criminal, administrative, investigative or
otherwise, and whether formal or informal, by reason of the fact
that such person is or was a director or officer of the
Corporation or is or was serving at the request of the
Corporation as a director, officer, trustee or fiduciary of
another corporation, partnership, joint venture, trust
(including without limitation an employee benefit trust), or
other enterprise.
(b) To the fullest extent permitted by law and
consistent with the principles set forth in Section 1(c) below,
the Corporation shall be entitled but shall not be obligated to
indemnify any person who is or was a party, or is threatened to
be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (other than an action by or in
the right of the Corporation), whether civil, criminal,
administrative, investigative or otherwise, and whether formal
or informal, by reason of the fact that such person is or was an
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employee or agent of the Corporation or is or was serving at the
request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise.
(c) Any person for whom indemnification is required
or authorized under Section 1(a) or Section 1(b) above shall be
indemnified against all liabilities, judgments, amounts paid in
settlement, penalties, fines (including an excise tax assessed
with respect to any employee benefit plan) and expenses
(including attorneys' fees, paralegals' fees and court costs)
actually and reasonably incurred in connection with any such
action, suit or other proceeding, including any appeal thereof.
Indemnification shall be available only if the person to be
indemnified acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best
interests of the Corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. The termination of any such
action, suit or other proceeding by judgment, order, settlement
or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner that such
person reasonably believed to be in, or not opposed to, the best
interests of the Corporation or, with respect to any criminal
action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
Section 2. Actions by or in the Right of the
Corporation.
(a) To the fullest extent permitted by law and
consistent with the principles set forth in Section 2(c) below,
the Corporation shall indemnify any person who is or was a
party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or other type of proceeding
(as further described in Section 1 of this Article VI) by or in
the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a director or
officer of the Corporation or is or was serving at the request
of the Corporation as a director, officer, trustee or fiduciary
of another corporation, partnership, joint venture, trust or
other enterprise.
(b) To the fullest extent permitted by law and
consistent with the principles set forth in Section 2(c) below,
the Corporation shall be entitled but shall not be obligated to
indemnify any person who is or was a party, or is threatened to
be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (as further described in
Section 1 of this Article VI) by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that such person is or was an employee or agent of the
Corporation or is or was serving at the request of the
Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(c) Any person for whom indemnification is required
or authorized under Section 2(a) or Section 2(b) above shall be
indemnified against expenses (including attorneys' fees,
paralegals' fees and court costs) and amounts paid in settlement
not exceeding, in the judgment of the Board of Directors, the
estimated expenses of litigating the action, suit or other
proceeding to conclusion, that are actually and reasonably
incurred in connection with the defense or settlement of such
action, suit or other proceeding, including any appeal thereof.
Indemnification shall be available only if the person to be
indemnified acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best
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interests of the Corporation. Notwithstanding the foregoing, no
indemnification shall be made under this Section 2 in respect of
any claim, issue or matter as to which such person shall have
been adjudged to be liable unless, and only to the extent that,
the court in which such action, suit or other proceeding was
brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for
such expenses that such court shall deem proper.
Section 3. Determination that Indemnification Is
Proper. Indemnification pursuant to Section 1 or Section 2 of
this Article VI, unless otherwise made pursuant to a
determination by a court, shall be made by the Corporation only
as authorized in the specific case upon a determination that the
indemnification is proper in the circumstances because the
indemnified person has met the applicable standard of conduct
set forth in Section 1 or Section 2 of this Article VI. Such
determination shall be made under one of the following
procedures:
(a) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to the
action, suit or other proceeding to which the indemnification
relates;
(b) if such a quorum is not obtainable or, even if
obtainable, by majority vote of a committee duly designated by
the Board of Directors (the designation being one in which
directors who are parties may participate) consisting solely of
two or more directors not at the time parties to such action,
suit or other proceeding;
(c) by independent legal counsel (i) selected by the
Board of Directors in accordance with the requirements of
subsection (a) or by a committee designated under subsection (b)
or (ii) if a quorum of the directors cannot be obtained and a
committee cannot be designated, selected by majority vote of the
full Board of Directors (the vote being one in which directors
who are parties may participate); or
(d) by the stockholders by a majority vote of a
quorum consisting of stockholders who were not parties to such
action, suit or other proceeding or, if no such quorum is
obtainable, by a majority vote of stockholders who were not
parties to such action, suit or other proceeding.
Section 4. Evaluation and Authorization. Evaluation of
the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as is
prescribed in Section 3 of this Article VI for the determination
that indemnification is permissible; provided, however, that if
the determination as to whether indemnification is permissible
is made by independent legal counsel, the persons who selected
such independent legal counsel shall be responsible for
evaluating the reasonableness of expenses and may authorize
indemnification.
Section 5. Prepayment of Expenses. Expenses (including
attorneys' fees, paralegals' fees and court costs) incurred by a
director or officer in defending a civil or criminal action,
suit or other proceeding referred to in Section 1 or Section 2
of this Article VI may, in the discretion of this Corporation,
to the full extent permitted by law, be paid by the Corporation
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in advance of the final disposition thereof. Any such payment
shall be made only upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if such
person is ultimately found not to be entitled to indemnification
by the Corporation pursuant to this Article VI.
Section 6. Prompt Consideration. Any request for
indemnification or advancement of expenses shall be promptly
considered by the Corporation.
Section 7. Nonexclusivity and Limitations. The
indemnification and advancement of expenses provided pursuant to
this Article VI shall not be deemed exclusive of any other
rights to which a person may be entitled under any law, By-law,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity
and as to action in any other capacity while holding office with
the Corporation. Such indemnification and advancement of
expenses shall continue as to any person who has ceased to be a
director or officer and shall inure to the benefit of such
person's heirs and personal representatives. The Board of
Directors may, at any time, approve indemnification of or
advancement of expenses to any other person that the Corporation
has the power by law to indemnify. In all cases not
specifically provided for in this Article VI, indemnification or
advancement of expenses shall not be made to the extent that
such indemnification or advancement of expenses is expressly
prohibited by law.
Section 8. Continuation of Indemnification Right.
(a) The right of indemnification and advancement of
expenses under this Article VI for directors and officers shall
be a contract right inuring to the benefit of the directors and
officers entitled to be indemnified hereunder. No amendment or
repeal of this Article VI shall adversely affect any right of
such director or officer existing at the time of such amendment
or repeal. Indemnification and advancement of expenses as
provided for in this Article VI shall continue as to a person
who has ceased to be a director or officer and shall inure to
the benefit of the heirs, executors and administrators of such
person.
(b) Unless expressly otherwise provided when
authorized or ratified by this Corporation, indemnification and
advancement of expenses that have been specifically authorized
and approved by the Corporation for a particular employee or
agent shall continue as to a person who has ceased to be an
employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
(c) For purposes of this Article VI, the term
"corporation" includes, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director or officer
of a constituent corporation, or is or was serving at the
request of a constituent corporation as a director, officer,
trustee or fiduciary of another corporation, partnership, joint
venture, trust or other enterprise, is in the same position
under this Article VI with respect to the resulting or surviving
corporation as such person would have been with respect to such
constituent corporation if its separate existence had continued.
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Section 9. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or who
is or was serving at the request of the Corporation as a
director, officer, trustee, fiduciary, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise. Such insurance may cover any liability asserted
against such person and incurred by such person in any such
capacity or arising out of such person's status as such, whether
or not the Corporation is obligated to or would have the power
to indemnify such person against the liability under Section 1
or Section 2 of this Article VI.
ARTICLE VII
INTERESTED PARTIES
Section 1. General. No contract or other transaction
between the Corporation and any one or more of its directors or
any other corporation, firm, association or entity in which one
or more of its directors are directors or officers or are finan
cially interested shall be either void or voidable because of
such relationship or interest, because such director or
directors were present at the meeting of the Board of Directors
or of a committee thereof that authorizes, approves or ratifies
such contract or transaction, or because such director's or
directors' votes are counted for such purpose, as long as one or
more of the following requirements is satisfied:
(a) the fact of such relationship or interest is disclosed
or known to the Board of Directors or committee that authorizes,
approves or ratifies the contract or transaction by a vote or
consent sufficient for the purpose without counting the votes or
consents of such interested directors;
(b) the fact of such relationship or interest is disclosed
or known to the stockholders entitled to vote on the matter, and
they authorize, approve or ratify such contract or transaction
by vote or written consent; or
(c) the contract or transaction is fair and reasonable as
to the Corporation at the time it is authorized by the Board of
Directors, a committee thereof or the stockholders.
Section 2. Determination of Quorum. Common or
interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or a
committee thereof that authorizes, approves or ratifies a
contract or transaction referred to in Section 1 of this
Article VII.
Section 3. Approval by Stockholders. For purposes of
Section 1(b) of this Article VII, a conflict of interest
transaction shall be authorized, approved or ratified if it
receives the vote of a majority of the shares entitled to be
counted under this Section 3. Shares owned by or voted under
the control of a director who has a relationship or interest in
the transaction described in Section 1 of this Article VII may
not be counted in a vote of stockholders to determine whether to
authorize, approve or ratify a conflict of interest transaction
under Section 1(b) of this Article VII. The vote of the shares
owned by or voted under the control of a director who has a
relationship or interest in the transaction described in
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Section 1 of this Article VII shall be counted, however, in
determining whether the transaction is approved under other
sections of these By-laws and applicable law. A majority of
those shares that would be entitled, if present, to be counted
in a vote on the transaction under this Section 3 shall
constitute a quorum for the purpose of taking action under this
Section 3.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 1. Certificates for Shares. Shares may but
need not be represented by certificates. The rights and
obligations of stockholders shall be identical whether or not
their shares are represented by certificates. If shares are
represented by certificates, each certificate shall be in such
form as the Board of Directors may from time to time prescribe
and shall be signed (either manually or in facsimile) by the
Chairman of the Board or the President (and may be signed
(either manually or in facsimile) by the Secretary or an
Assistant Secretary and/or sealed with the seal of the
Corporation or its facsimile). Each certificate shall set forth
the holder's name and the number of shares represented by the
certificate, and shall state such other matters as may be
required by law. The certificates shall be numbered and entered
on the books of the Corporation as they are issued. If shares
are not represented by certificates, then, within a reasonable
time after issue or transfer of shares without certificates, the
Corporation shall send the stockholder a written statement in
such form as the Board of Directors may from time to time
prescribe, certifying as to the number of shares owned by the
stockholder and as to such other information as would have been
required to be on certificates for such shares.
If and to the extent the Corporation is authorized to issue
shares of more than one class or more than one series of any
class, every certificate representing shares shall set forth or
fairly summarize upon the face or back of the certificate, or
shall state that the Corporation will furnish to any stockholder
upon request and without charge a full statement of:
(a) the designations, relative rights, preferences and
limitations of the shares of each class or series authorized to
be issued;
(b) the variations in rights, preferences and limitations
between the shares of each such series, if the Corporation is
authorized to issue any preferred or special class in series
insofar as the same have been fixed and determined; and
(c) the authority of the Board of Directors to fix and
determine the variations, relative rights and preferences of
future series.
Section 2. Signatures of Past Officers. If the person
who signed (either manually or in facsimile) a share certificate
no longer holds office when the certificate is issued, the
certificate shall nevertheless be valid.
Section 3. Transfer Agents and Registrars. The Board
of Directors may, in its discretion, appoint responsible banks
or trust companies in such city or cities as the Board may deem
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advisable from time to time to act as transfer agents and
registrars of the stock of the Corporation. When such
appointments shall have been made, no stock certificate shall be
valid until countersigned by one of such transfer agents and
registered by one of such registrars.
Section 4. Transfer of Shares. Transfers of shares of
the Corporation shall be made upon its books by the holder of
the shares in person or by the holder's lawfully constituted
representative, upon surrender of the certificate of stock for
cancellation if such shares are represented by a certificate of
stock or by delivery to the Corporation of such evidence of
transfer as may be required by the Corporation if such shares
are not represented by certificates. The person in whose name
shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes; and
the Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any
other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the
State of Florida.
Section 5. Lost Certificates. The Board of Directors
may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by
the Corporation and alleged to have been lost or destroyed, upon
the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or the owner's
legal representative, to pay a reasonable charge for issuing the
new certificate, to advertise the matter in such manner as it
shall require and/or to give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged
to have been lost or destroyed.
ARTICLE IX
RECORD DATE
Section 1. Record Date for Stockholder Actions. The
Board of Directors is authorized from time to time to fix in
advance a date as the record date for the determination of the
stockholders entitled to notice of and to vote at any meeting of
the stockholders and any adjournment thereof (unless a new
record date must be established by law for such adjourned
meeting), or of the stockholders entitled to give such consent
or take such action, as the case may be. In no event may a
record date so fixed by the Board of Directors precede the date
on which the resolution establishing such record date is adopted
by the Board of Directors; and such record date may not be more
than seventy (70) nor less than ten (10) days before the date of
any meeting of the stockholders, before a date in connection
with the obtaining of the consent of stockholders for any
purpose, or before the date of any other action requiring a
determination of the stockholders. Only those stockholders
listed as stockholders of record as of the close of business on
the date so fixed as the record date shall be entitled to notice
of and to vote at such meeting and any adjournment thereof, or
to exercise such rights or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of
the Corporation after any such record date fixed as aforesaid.
If the Board of Directors fails to establish a record date as
provided herein, the record date shall be deemed to be the date
ten (10) days prior to the date of the stockholders' meeting.
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Section 2. Record Date for Dividend and Other
Distributions. The Board of Directors is authorized from time
to time to fix in advance a date as the record date for the
determination of the stockholders entitled to receive a dividend
or other distribution. Only those stockholders listed as
stockholders of record as of the close of business on the date
so fixed as the record date shall be entitled to receive the
dividend or other distribution, as the case may be,
notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. If
the Board of Directors fails to establish a record date as
provided herein, the record date shall be deemed to be the date
of authorization of the dividend or other distribution.
ARTICLE X
DIVIDENDS
The Board of Directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares of
capital stock in the manner and upon the terms and conditions
provided by the Articles of Incorporation of the Corporation and
by law. Subject to the provisions of the Articles of
Incorporation of the Corporation and to law, dividends may be
paid in cash or property, including shares of stock or other
securities of the Corporation.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be the period
selected by the Board of Directors as the fiscal year. Unless
and until changed by the Board of Directors, the fiscal year of
the Corporation shall end on the last Saturday of each year.
ARTICLE XII
SEAL
The corporate seal shall have the name of the Corporation
and the word "SEAL" inscribed thereon. It may be a facsimile,
engraved, printed or impression seal.
ARTICLE XIII
STOCK IN OTHER CORPORATIONS
Shares of stock in other corporations held by the
Corporation shall be voted by such officer or officers or other
agent of the Corporation as the Board of Directors shall from
time to time designate for the purpose or by a proxy thereunto
duly authorized by said Board.
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ARTICLE XIV
AMENDMENTS
These By-laws may be altered, amended or repealed and new
By-laws may be adopted either by the Board of Directors or by
the holders of a majority of the issued and outstanding shares
of stock of the Corporation entitled to vote; provided, however,
that the Board of Directors may not alter, amend or repeal any
By-law adopted by the stockholders if the stockholders
specifically provided that the By-law is not subject to
amendment or repeal by the Board.
ARTICLE XV
EMERGENCY BY-LAWS
Section 1. Scope of Emergency By-laws. The emergency
By-laws provided in this Article XV shall be operative during
any emergency, notwithstanding any different provision set forth
in the preceding Articles hereof; provided, however, that to the
extent not inconsistent with the provisions of this Article XV
and the emergency By-laws, the By-laws provided in the preceding
Articles shall remain in effect during such emergency. For
purposes of the emergency By-law provisions of this Article XV,
an emergency shall exist if a quorum of the Corporation's
directors cannot readily be assembled because of some
catastrophic event. Upon termination of the emergency, these
emergency By-laws shall cease to be operative.
Section 2. Call and Notice of Meeting. During any
emergency, a meeting of the Board of Directors may be called by
any officer or director of the Corporation. Notice of the date,
time and place of the meeting shall be given by the person
calling the meeting to such of the directors as it may be
feasible to reach by any available means of communication. Such
notice shall be given at such time in advance of the meeting as
circumstances permit in the judgment of the person calling the
meeting.
Section 3. Quorum and Voting. At any such meeting of
the Board of Directors, a quorum shall consist of any one or
more directors, and the act of the majority of the directors
present at such meeting shall be the act of the Corporation.
Section 4. Appointment of Temporary Directors.
(a) The director or directors who are able to be
assembled at a meeting of directors during an emergency may
assemble for the purpose of appointing, if such directors deem
it necessary, one or more temporary directors (the "Temporary
Directors") to serve as directors of the Corporation during the
term of any emergency.
(b) If no directors are able to attend a meeting of
directors during an emergency, then such stockholders as may
reasonably be assembled shall have the right, by majority vote
of those assembled, to appoint Temporary Directors to serve on
the Board of Directors until the termination of the emergency.
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(c) If no stockholders can reasonably be assembled in
order to conduct a vote for Temporary Directors, then the
Chairman of the Board or his or her successor as determined
under an emergency succession plan adopted by the Board of
Directors under Section 5 of this Article XV shall be deemed a
Temporary Director of the Corporation, and such Chairman of the
Board or his or her successor, as the case may be, shall have
the right to appoint additional Temporary Directors to serve
with him or her on the Board of Directors of the Corporation
during the term of the emergency.
(d) Temporary Directors shall have all of the rights,
duties and obligations of directors appointed pursuant to
Article III hereof; provided, however, that a Temporary Director
may be removed from the Board of Directors at any time by the
person or persons responsible for appointing such Temporary
Director, or by vote of the majority of the stockholders present
at any meeting of the stockholders during an emergency. In any
event, the Temporary Director shall automatically be deemed to
have resigned from the Board of Directors upon the termination
of the emergency in connection with which the Temporary Director
was appointed.
Section 5. Modification of Lines of Succession. Either
before or during any emergency, the Board of Directors may
provide, and from time to time modify, lines of succession in
the event that during such an emergency any or all officers or
agents of the Corporation shall for any reason be rendered
incapable of discharging their duties.
Section 6. Change of Principal Office. The Board of
Directors may, either before or during any such emergency, and
effective during such emergency, change the principal office of
the Corporation or designate several alternative head offices or
regional offices, or authorize the officers of the Corporation
to do so.
Section 7. Limitation of Liability. No officer,
director or employee acting in accordance with these emergency
By-laws during an emergency shall be liable except for willful
misconduct.
Section 8. Amendment or Repeal. These emergency By-
laws shall be subject to amendment or repeal by further action
of the Board of Directors or by action of the stockholders, but
no such amendment or repeal shall modify the provisions of
Section 7 above with regard to actions taken prior to the time
of such amendment or repeal. Any amendment of these emergency
By-laws may make any further or different provision that may be
practical or necessary under the circumstances of the emergency.
ARTICLE XVI
PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION
Any provision of the Articles of Incorporation of this
Corporation shall, subject to law, control and take precedence
over any provision of these By-laws inconsistent therewith.
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