Exhibit 3.2
BYLAWS
OF
STEIN MART, INC.
(a Florida corporation)
Restated September 2003
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions
Section 1.1 Definitions...........................................-1-
ARTICLE 2
Offices
Section 2.1 Principal and Business Offices........................-1-
Section 2.2 Registered Office ...................................-1-
ARTICLE 3
Shareholders
Section 3.1 Annual Meeting........................................-2-
Section 3.2 Special Meetings......................................-2-
Section 3.3 Place of Meeting......................................-2-
Section 3.4 Notice of Meeting.....................................-2-
Section 3.5 Waiver of Notice......................................-3-
Section 3.6 Fixing of Record Date.................................-3-
Section 3.7 Shareholders' List for Meetings.......................-4-
Section 3.8 Quorum................................................-5-
Section 3.9 Voting of Shares......................................-5-
Section 3.10 Vote Required.........................................-5-
Section 3.11 Conduct of Meeting....................................-6-
Section 3.12 Inspectors of Election................................-6-
Section 3.13 Proxies...............................................-7-
Section 3.14 Action by Shareholders Without Meeting................-7-
Section 3.15 Acceptance of Instruments Showing Shareholder Action..-8-
Section 3.16 Advance Notice of Shareholder Nominees and Shareholder-9-
ARTICLE 4
Board of Directors
Section 4.1 General Powers and Number............................-10-
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Page
Section 4.2 Qualifications.......................................-10-
Section 4.3 Term of Office.......................................-10-
Section 4.4 Removal..............................................-10-
Section 4.5 Resignation..........................................-10-
Section 4.6 Vacancies............................................-11-
Section 4.7 Compensation.........................................-11-
Section 4.8 Regular Meetings.....................................-11-
Section 4.9 Special Meetings.....................................-11-
Section 4.10 Notice...............................................-12-
Section 4.11 Waiver of Notice.....................................-12-
Section 4.12 Quorum and Voting....................................-12-
Section 4.13 Conduct of Meetings..................................-12-
Section 4.14 Committees...........................................-13-
Section 4.15 Action Without Meeting...............................-14-
ARTICLE 5
Officers
Section 5.1 Number...............................................-14-
Section 5.2 Election and Term of Office..........................-15-
Section 5.3 Removal..............................................-15-
Section 5.4 Resignation..........................................-15-
Section 5.5 Vacancies............................................-15-
Section 5.6 Chairman of the Board................................-15-
Section 5.7 Vice-Chairman of the Board...........................-15-
Section 5.8 Chief Executive Officer..............................-16-
Section 5.9 President............................................-16-
Section 5.10 Chief Merchandising Officer..........................-17-
Section 5.11 Vice Presidents......................................-17-
Section 5.12 Secretary............................................-17-
Section 5.13 Chief Financial Officer..............................-18-
Section 5.14 Controller and Assistant Secretaries.................-18-
Section 5.15 Other Assistants and Acting Officers.................-18-
Section 5.16 Salaries.............................................-18-
ARTICLE 6
Contracts, Checks and Deposits; Special Corporate Acts
Section 6.1 Contracts............................................-18-
Section 6.2 Loans................................................-19-
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Page
Section 6.3 Checks, Drafts, etc..................................-19-
Section 6.4 Deposits.............................................-19-
Section 6.5 Voting of Securities Owned by Corporation............-19-
ARTICLE 7
Certificates for Shares; Transfer of Shares
Section 7.1 Consideration for Shares.............................-19-
Section 7.2 Certificates for Shares..............................-20-
Section 7.3 Transfer of Shares...................................-20-
Section 7.4 Restrictions on Transfer.............................-21-
Section 7.5 Lost, Destroyed, or Stolen Certificates..............-21-
Section 7.6 Stock Regulations....................................-21-
ARTICLE 8
Seal
Section 8.1 Seal.................................................-21-
ARTICLE 9
Books and Records
Section 9.1 Books and Records....................................-21-
Section 9.2 Shareholders' Inspection Rights......................-22-
Section 9.3 Distribution of Financial Information................-22-
Section 9.4 Other Reports........................................-22-
ARTICLE 10
Indemnification
Section 10.1 Provision of Indemnification.........................-22-
ARTICLE 11
Amendments
Section 11.1 Power to Amend.......................................-23-
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ARTICLE 1
Definitions
Section 1.1 Definitions. The following terms shall have the following
meanings for purposes of these bylaws:
"Act" means the Florida Business Corporation Act, as it may be amended
from time to time, or any successor legislation thereto.
"Deliver" or "delivery" includes delivery by hand; United States mail;
facsimile, telegraph, teletype or other form of electronic transmission; or
private mail carriers handling nationwide mail services.
"Distribution" means a direct or indirect transfer of money or other
property (except shares in the corporation) or an incurrence of indebtedness by
the corporation to or for the benefit of shareholders in respect of any of the
corporation's shares. A distribution may be in the form of a declaration or
payment of a dividend; a purchase, redemption, or other acquisition of shares; a
distribution of indebtedness; or otherwise.
"Principal office" means the office (within or without the State of
Florida) where the corporation's principal executive offices are located, as
designated in the articles of incorporation or other initial filing until an
annual report has been filed with the Florida Department of State, and
thereafter as designated in the annual report.
ARTICLE 2
Offices
Section 2.1 Principal and Business Offices. The corporation may have
such principal and other business offices, either within or without the State of
Florida, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
Section 2.2 Registered Office. The registered office of the corporation
required by the Act to be maintained in the State of Florida may but need not be
identical with the principal office if located in the State of Florida, and the
address of the registered office may be changed from time to time by the Board
of Directors or by the registered agent. The business office of the registered
agent of the corporation shall be identical to such registered office.
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ARTICLE 3
Shareholders
Section 3.1 Annual Meeting. The annual meeting of shareholders shall be
held within six months after the close of each fiscal year of the corporation on
a date and at a time and place designated by the Board of Directors, for the
purpose of electing directors and for the transaction of such other business as
may come before the meeting. If the election of directors shall not be held on
the day fixed as herein provided for any annual meeting of shareholders, or at
any adjournment thereof, the Board of Directors shall cause the election to be
held at a special meeting of shareholders as soon thereafter as is practicable.
Section 3.2 Special Meetings.
(a) Call by Directors or President. Special meetings of
shareholders, for any purpose or purposes, may be called by the Board of
Directors or the President.
(b) Call by Shareholders. The corporation shall call a
special meeting of shareholders in the event that the holders of at least ten
percent of all of the votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting sign, date, and deliver to the
Secretary one or more written demands for the meeting describing one or more
purposes for which it is to be held. The corporation shall give notice of such a
special meeting within sixty days after the date that the demand is delivered to
the corporation.
Section 3.3 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 shareholders. If no designation is made,
the place of meeting shall be the principal office of the corporation.
Section 3.4 Notice of Meeting.
(a) Content and Delivery. Written notice stating the date,
time, and place of any meeting of shareholders and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten days nor more than sixty days before the date of the
meeting by or at the direction of the President or the Secretary, or the officer
or persons duly calling the meeting, to each shareholder of record entitled to
vote at such meeting and to such other persons as required by the Act. Unless
the Act requires otherwise, notice of an annual meeting need not include a
description of the purpose or purposes for which the meeting is called. If
mailed, notice of a meeting of shareholders shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his or her
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid.
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(b) Notice of Adjourned Meetings. If an annual or special
meeting of shareholders is adjourned to a different date, time, or place, the
corporation shall not be required to give notice of the new date, time, or place
if the new date, time, or place is announced at the meeting before adjournment;
provided, however, that if a new record date for an adjourned meeting is or must
be fixed, the corporation shall give notice of the adjourned meeting to persons
who are shareholders as of the new record date who are entitled to notice of the
meeting.
(c) No Notice Under Certain Circumstances. Notwithstanding
the other provisions of this Section, no notice of a meeting of shareholders
need be given to a shareholder if: (1) an annual report and proxy statement for
two consecutive annual meetings of shareholders, or (2) all, and at least two
checks in payment of dividends or interest on securities during a twelve-month
period, have been sent by first-class, United States mail, addressed to the
shareholder at his or her address as it appears on the share transfer books of
the corporation, and returned undeliverable. The obligation of the corporation
to give notice of a shareholders' meeting to any such shareholder shall be
reinstated once the corporation has received a new address for such shareholder
for entry on its share transfer books.
Section 3.5 Waiver of Notice.
(a) Written Waiver. A shareholder may waive any notice
required by the Act or these bylaws before or after the date and time stated for
the meeting in the notice. The waiver shall be in writing and signed by the
shareholder entitled to the notice, and be delivered to the corporation for
inclusion in the minutes or filing with the corporate records. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of shareholders need be specified in any written waiver of notice.
(b) Waiver by Attendance. A shareholder's attendance at a
meeting, in person or by proxy, waives objection to all of the following: (1)
lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting; and (2) consideration of a particular matter at the meeting that
is not within the purpose or purposes described in the meeting notice, unless
the shareholder objects to considering the matter when it is presented.
Section 3.6 Fixing of Record Date.
(a) General. The Board of Directors may fix in advance a date
as the record date for the purpose of determining shareholders entitled to
notice of a shareholders' meeting, entitled to vote, or take any other action.
In no event may a record date fixed by the Board of Directors be a date
preceding the date upon which the resolution fixing the record date is adopted
or a date more than seventy days before the date of meeting or action requiring
a determination of shareholders.
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(b) Special Meeting. The record date for determining
shareholders entitled to demand a special meeting shall be the close of business
on the date the first shareholder delivers his or her demand to the corporation.
(c) Shareholder Action by Written Consent. If no prior action
is required by the Board of Directors pursuant to the Act, the record date for
determining shareholders entitled to take action without a meeting shall be the
close of business on the date the first signed written consent with respect to
the action in question is delivered to the corporation, but if prior action is
required by the Board of Directors pursuant to the Act, such record date shall
be the close of business on the date on which the Board of Directors adopts the
resolution taking such prior action unless the Board of Directors otherwise
fixes a record date.
(d) Absence of Board Determination for Shareholders' Meeting.
If the Board of Directors does not determine the record date for determining
shareholders entitled to notice of and to vote at an annual or special
shareholders' meeting, such record date shall be the close of business on the
day before the first notice with respect thereto is delivered to shareholders.
(e) Adjourned Meeting. A record date for determining
shareholders entitled to notice of or to vote at a shareholders' meeting is
effective for any adjournment of the meeting unless the Board of Directors fixes
a new record date, which it must do if the meeting is adjourned to a date more
than 120 days after the date fixed for the original meeting.
(f) Certain Distributions. If the Board of Directors does not
determine the record date for determining shareholders entitled to a
distribution (other than one involving a purchase, redemption, or other
acquisition of the corporation's shares or a share dividend), such record date
shall be the close of business on the date on which the Board of Directors
authorizes the distribution.
Section 3.7 Shareholders' List for Meetings.
(a) Preparation and Availability. After a record date for a
meeting of shareholders has been fixed, the corporation shall prepare an
alphabetical list of the names of all of the shareholders entitled to notice of
the meeting. The list shall be arranged by class or series of shares, if any,
and show the address of and number of shares held by each shareholder. Such list
shall be available for inspection by any shareholder for a period of ten days
prior to the meeting or such shorter time as exists between the record date and
the meeting date, and continuing through the meeting, at the corporation's
principal office, at a place identified in the meeting notice in the city where
the meeting will be held, or at the office of the corporation's transfer agent
or registrar, if any. A shareholder or his or her agent may, on written demand,
inspect the list, subject to the requirements of the Act, during regular
business hours and at his or her expense, during the period that it is available
for inspection pursuant to this Section.
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The corporation shall make the shareholders' list available at the meeting and
any shareholder or his or her agent or attorney may inspect the list at any time
during the meeting or any adjournment thereof.
(b) Prima Facie Evidence. The shareholders' list is prima
facie evidence of the identity of shareholders entitled to examine the
shareholders' list or to vote at a meeting of shareholders.
(c) Failure to Comply. If the requirements of this Section
have not been substantially complied with, or if the corporation refuses to
allow a shareholder or his or her agent or attorney to inspect the shareholders'
list before or at the meeting, on the demand of any shareholder, in person or by
proxy, who failed to get such access, the meeting shall be adjourned until such
requirements are complied with.
(d) Validity of Action Not Affected. Refusal or failure to
prepare or make available the shareholders' list shall not affect the validity
of any action taken at a meeting of shareholders.
Section 3.8 Quorum.
(a) What Constitutes a Quorum. Shares entitled to vote as a
separate voting group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Except as otherwise provided
in the Act, a majority of the votes entitled to be cast on the matter shall
constitute a quorum of the voting group for action on that matter.
(b) Presence of Shares. Once a share is represented for any
purpose at a meeting, other than for the purpose of objecting to holding the
meeting or transacting business at the meeting, it is considered present for
purposes of determining whether a quorum exists for the remainder of the meeting
and for any adjournment of that meeting unless a new record date is or must be
set for the adjourned meeting.
(c) Adjournment in Absence of Quorum. Where a quorum is not
present, the holders of a majority of the shares represented and who would be
entitled to vote at the meeting if a quorum were present may adjourn such
meeting from time to time.
Section 3.9 Voting of Shares. Except as provided in the articles of
incorporation or the Act, each outstanding share, regardless of class, is
entitled to one vote on each matter voted on at a meeting of shareholders.
Section 3.10 Vote Required.
(a) Matters Other Than Election of Directors. If a quorum
exists, except in the case of the election of directors, action on a matter
shall be approved if the
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votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the articles of incorporation or the Act requires a
greater number of affirmative votes.
(b) Election of Directors. Unless otherwise provided in the
articles of incorporation, each director shall be elected by a plurality of the
votes cast by the shares entitled to vote in the election of directors at a
meeting at which a quorum is present. Each shareholder who is entitled to vote
at an election of directors has the right to vote the number of shares owned by
him or her for as many persons as there are directors to be elected.
Shareholders do not have a right to cumulate their votes for directors.
Section 3.11 Conduct of Meeting. The Chairman of the Board of
Directors, and in his absence, the Chief Executive Officer and in his absence,
the President, and in his absence, a Vice President in the order provided under
the Section of these bylaws titled "Vice Presidents," and in their absence, any
person chosen by the shareholders present shall call a shareholders' meeting to
order and shall act as presiding officer of the meeting, and the Secretary of
the corporation shall act as secretary of all meetings of the shareholders, but,
in the absence of the Secretary, the presiding officer may appoint any other
person to act as secretary of the meeting. The presiding officer of the meeting
shall have broad discretion in determining the order of business at a
shareholders' meeting. The presiding officer's authority to conduct the meeting
shall include, but in no way be limited to, recognizing shareholders entitled to
speak, calling for the necessary reports, stating questions and putting them to
a vote, calling for nominations, and announcing the results of voting. The
presiding officer also shall take such actions as are necessary and appropriate
to preserve order at the meeting. The rules of parliamentary procedure need not
be observed in the conduct of shareholders' meetings; however, meetings shall be
conducted in accordance with accepted usage and common practice with fair
treatment to all who are entitled to take part.
Section 3.12 Inspectors of Election. Inspectors of election may be
appointed by the Board of Directors to act at any meeting of shareholders at
which any vote is taken. If inspectors of election are not so appointed, the
presiding officer of the meeting may, and on the request of any shareholder
shall, make such appointment. The inspectors of election shall determine the
number of shares outstanding, the voting rights with respect to each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity, and effect of proxies; receive votes, ballots, consents, and waivers;
hear and determine all challenges and questions arising in connection with the
vote; count and tabulate all votes, consents, and waivers; determine and
announce the result; and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. No inspector, whether appointed by the
Board of Directors or by the person acting as presiding officer of the meeting,
need be a shareholder.
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Section 3.13 Proxies
(a) Appointment. At all meetings of shareholders, a
shareholder may vote his or her shares in person or by proxy. A shareholder may
appoint a proxy to vote or otherwise act for the shareholder by signing an
appointment form, either personally or by his or her attorney-in-fact. If an
appointment form expressly provides, any proxy holder may appoint, in writing, a
substitute to act in his or her place. A telegraph, telex, or a cablegram, a
facsimile transmission of a signed appointment form, or a photographic,
photostatic, or equivalent reproduction of a signed appointment form is a
sufficient appointment form.
(b) When Effective. An appointment of a proxy is effective
when received by the Secretary or other officer or agent of the corporation
authorized to tabulate votes. An appointment is valid for up to eleven months
unless a longer period is expressly provided in the appointment form. An
appointment of a proxy is revocable by the shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest.
Section 3.14 Action by Shareholders Without Meeting.
(a) Requirements for Written Consents. Any action required
or permitted by the Act to be taken at any annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without a
vote if one or more written consents describing the action taken shall be signed
and dated by the holders of outstanding stock entitled to vote thereon having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Such consents must be delivered to the principal office
of the corporation in Florida, the corporation's principal place of business,
the Secretary, or another officer or agent of the corporation having custody of
the books in which proceedings of meetings of shareholders are recorded. No
written consent shall be effective to take the corporate action referred to
therein unless, within sixty days of the date of the earliest dated consent
delivered in the manner required herein, written consents signed by the number
of holders required to take action are delivered to the corporation by delivery
as set forth in this Section.
(b) Revocation of Written Consents. Any written consent may
be revoked prior to the date that the corporation receives the required number
of consents to authorize the proposed action. No revocation is effective unless
in writing and until received by the corporation at its principal office in
Florida or its principal place of business, or received by the Secretary or
other officer or agent having custody of the books in which proceedings of
meetings of shareholders are recorded.
(c) Notice to Nonconsenting Shareholders. Within ten days
after obtaining such authorization by written consent, notice must be given in
writing to those shareholders who have not consented in writing or who are not
entitled to vote on the action. The notice shall fairly summarize the material
features of the authorized action
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and, if the action be such for which dissenters' rights are provided under the
Act, the notice shall contain a clear statement of the right of shareholders
dissenting therefrom to be paid the fair value of their shares upon compliance
with the provisions of the Act regarding the rights of dissenting shareholders.
(d) Same Effect as Vote at Meeting. A consent signed under
this Section has the effect of a meeting vote and may be described as such in
any document. Whenever action is taken by written consent pursuant to this
Section, the written consent of the shareholders consenting thereto or the
written reports of inspectors appointed to tabulate such consents shall be filed
with the minutes of proceedings of shareholders.
Section 3.15 Acceptance of Instruments Showing Shareholder Action. If
the name signed on a vote, consent, waiver, or proxy appointment corresponds to
the name of a shareholder, the corporation, if acting in good faith, may accept
the vote, consent, waiver, or proxy appointment and give it effect as the act of
a shareholder. If the name signed on a vote, consent, waiver, or proxy
appointment does not correspond to the name of a shareholder, the corporation,
if acting in good faith, may accept the vote, consent, waiver, or proxy
appointment and give it effect as the act of the shareholder if any of the
following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
(b) The name signed purports to be that of a administrator,
executor, guardian, personal representative, or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote, consent,
waiver, or proxy appointment;
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy, or assignee for the benefit of creditors of the
shareholder and, if the corporation requests, evidence of this status acceptable
to the corporation is presented with respect to the vote, consent, waiver, or
proxy appointment;
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the corporation
requests, evidence acceptable to the corporation of the signatory's authority to
sign for the shareholder is presented with respect to the vote, consent, waiver,
or proxy appointment; or
(e) Two or more persons are the shareholder as cotenants or
fiduciaries and the name signed purports to be the name of at least one of the
co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver, or proxy appointment if the
Secretary or other officer or agent of the corporation who is authorized to
tabulate votes,
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acting in good faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for the shareholder.
Section 3.16. Advance Notice of Shareholder Nominees and Shareholder
Proposals. Subject to the rights of holders of any class or series of stock
having a preference over the common stock as to dividends or upon liquidation,
(a) nominations for the election of directors, and
(b) business proposed to be brought before any shareholder
meeting may be made by the board of directors or the Corporate Governance
Committee or by any shareholder holding (x) such minimum number of shares of the
stock of the corporation and (y) for such time periods, each as required by Rule
14a-8(b) promulgated under the Securities Exchange Act of 1934, as amended (the
"Ownership Requirements"), if such nomination or business proposed is otherwise
proper business before such meeting. However, any such shareholder may nominate
one or more persons for election as directors at a meeting or propose business
to be brought before a meeting, or both, only if such shareholder has given
timely notice in proper written form of his or her intent to make such
nomination or nominations or to propose such business. To be timely, such
shareholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than one hundred twenty
(120) calendar days in advance of the first anniversary date of mailing of the
corporation's proxy statement released to shareholders in connection with the
previous year's annual meeting of shareholders; provided, however, that in the
event that no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year's proxy statement, notice by the
shareholder to be timely must be so received a reasonable time before the date
of mailing to shareholders of the corporation's proxy statement for the annual
meeting in question is made. To be in proper form, a shareholder's notice to the
secretary shall set forth:
(i) the name and address of the shareholder who intends
to make the nominations or propose the business
and, as the case may be, of the person or persons
to be nominated or of the business to be proposed;
(ii) a representation that the shareholder satisfies the
Ownership Requirements and, if applicable, intends
to appear in person or by proxy at the meeting to
nominate the person or persons or to propose such
other business specified in the notice;
(iii) if applicable, a description of all arrangements or
understandings between the shareholder and each
nominee and any other person or persons (naming
such person or
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persons) pursuant to which the nomination or
nominations are to be made by the shareholder;
(iv) such other information regarding each nominee or
each matter of business to be proposed by such
shareholder as would be required to be included
in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission had
the nominee been nominated, or intended to be
nominated, or the matter been proposed, or intended
to be proposed by the board of directors; and
(v) the consent of each nominee to serve as director of
the corporation if so elected.
The chairman of the meeting shall refuse to acknowledge the nomination of any
person or the proposal of any business not made in compliance with the foregoing
procedure.
ARTICLE 4
Board of Directors
Section 4.1 General Powers and Number. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation managed under the direction of, the Board of Directors. The
corporation shall have twelve (12) directors as of September 2003. The number of
directors may be increased or decreased from time to time by vote of a majority
of the full Board of Directors, but shall never be less than one nor more than
fifteen.
Section 4.2 Qualifications. Directors must be natural persons who are
eighteen years of age or older but need not be residents of this state or
shareholders of the corporation.
Section 4.3 Term of Office. Each director shall hold office until the
next annual meeting of shareholders and until his or her successor shall have
been elected and, if necessary, qualified, or until there is a decrease in the
number of directors which takes effect after the expiration of his or her term,
or until his or her prior death, resignation or removal.
Section 4.4 Removal. The shareholders may remove one or more directors
with or without cause. A director may be removed by the shareholders at a
meeting of shareholders, provided that the notice of the meeting states that the
purpose, or one of the purposes, of the meeting is such removal.
Section 4.5 Resignation. A director may resign at any time by
delivering written notice to the Board of Directors or its Chairman (if any) or
to the corporation. A
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director's resignation is effective when the notice is delivered unless the
notice specifies a later effective date.
Section 4.6 Vacancies.
(a) Who May Fill Vacancies. Except as provided below,
whenever any vacancy occurs on the Board of Directors, including a vacancy
resulting from an increase in the number of directors, it 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 shareholders. If the directors first
fill a vacancy, the shareholders shall have no further right with respect to
that vacancy, and if the shareholders first fill the vacancy, the directors
shall have no further rights with respect to that vacancy.
(b) Directors Electing by Voting Groups. Whenever the
holders of shares of any voting group are entitled to elect a class of one or
more directors by the provisions of the articles of incorporation, vacancies in
such class may be filled by holders of shares of that voting group or by a
majority of the directors then in office elected by such voting group or by a
sole remaining director so elected. If no director elected by such voting group
remains in office, unless the articles of incorporation provide otherwise,
directors not elected by such voting group may fill vacancies.
(c) Prospective Vacancies. A vacancy that will occur at a
specific later date, because of a resignation effective at a later date or
otherwise, may be filled before the vacancy occurs, but the new director may not
take office until the vacancy occurs.
Section 4.7 Compensation. The Board of Directors, irrespective of any
personal interest of any of its members, may establish reasonable compensation
of all directors for services to the corporation as directors, officers, or
otherwise, or may delegate such authority to an appropriate committee. The Board
of Directors also shall have authority to provide for or delegate authority to
an appropriate committee to provide for reasonable pensions, disability or death
benefits, and other benefits or payments, to directors, officers, and employees
and to their families, dependents, estates, or beneficiaries on account of prior
services rendered to the corporation by such directors, officers, and employees.
Section 4.8 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this bylaw immediately before
or after the annual meeting of shareholders and each adjourned session thereof.
The place of such regular meeting shall be the same as the place of the meeting
of shareholders which precedes it, or such other suitable place as may be
announced at such meeting of shareholders. The Board of Directors may provide,
by resolution, the date, time, and place, either within or without the State of
Florida, for the holding of additional regular meetings of the Board of
Directors without other notice than such resolution.
Section 4.9 Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, President or directors
consisting of at least
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one-third of the Board of Directors. The person or persons calling the meeting
may fix any place, either within or without the State of Florida, as the place
for holding any special meeting of the Board of Directors, and if no other place
is fixed, the place of the meeting shall be the principal office of the
corporation in the State of Florida.
Section 4.10 Notice. Unless the articles of incorporation provide for a
longer or shorter period, special meetings of the Board of Directors must be
preceded by at least two days' notice of the date, time, and place of the
meeting. The notice need not describe the purpose of the special meeting.
Section 4.11 Waiver of Notice. Notice of a meeting of the Board of
Directors need not be given to any director who signs a waiver of notice either
before or after the meeting. 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 or promptly upon arrival at the meeting, any objection
to the transaction of business because the meeting is not lawfully called or
convened.
Section 4.12 Quorum and Voting. A quorum of the Board of Directors
consists of a majority of the number of directors prescribed by these bylaws. If
a quorum is present when a vote is taken, the affirmative vote of a majority of
directors present is the act of the Board of Directors. A director who is
present at a meeting of the Board of Directors or a committee of the Board of
Directors when corporate action is taken is deemed to have assented to the
action taken unless: (a) he or she objects at the beginning of the meeting (or
promptly upon his or her arrival) to holding it or transacting specified
business at the meeting; or (b) he or she votes against or abstains from the
action taken.
Section 4.13 Conduct of Meetings.
(a) Presiding Officer. The Chairman of the Board of
Directors shall preside at meetings of the Board of Directors. The Chairman, and
in his absence, the Vice-Chairman of the Board, and in his absence, any director
chosen by the directors present, shall call meetings of the Board of Directors
to order and shall act as presiding officer of the meeting.
(b) Minutes. The Secretary of the corporation shall act as
secretary of all meetings of the Board of Directors but in the absence of the
Secretary, the presiding officer may appoint any other person present to act as
secretary of the meeting. Minutes of any regular or special meeting of the Board
of Directors shall be prepared and distributed to each director.
(c) Adjournments. 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. Notice of any such adjourned meeting shall
be given to the directors who are not
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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.
(d) Participation by Conference Call or Similar Means. The
Board of Directors may permit any or all directors to participate in a regular
or a special meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
Section 4.14 Committees.
(a) In General. The Board of Directors, by resolution
adopted by a majority of the full Board of Directors, may designate from among
its members an executive committee and one or more other committees each of
which, to the extent provided in such resolution, 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 shareholders actions or
proposals required by the Act to be approved by
shareholders;
(ii) fill vacancies on the Board of Directors or any
committee thereof;
(iii) adopt, amend, or repeal these bylaws;
(iv) authorize or approve the reacquisition of shares
unless pursuant to a general formula or method
specified by the Board of Directors; or
(v) authorize or approve the issuance or sale or
contract for the sale of shares, or determine the
designation and relative rights, preferences, and
limitations of a voting group;
except that the Board of Directors may authorize a committee (or a senior
executive officer of the corporation) to do so within limits specifically
prescribed by the Board of Directors. Each committee must have two or more
members, who shall serve at the pleasure of the Board of Directors. The Board of
Directors, by resolution adopted in accordance with this Section, may designate
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. The provisions of these bylaws that govern meetings, notice and
waiver of notice, and quorum and voting requirements of the Board of Directors
apply to committees and their members as well. Directors shall be designated as
"Independent Directors" if they meet the independence requirements of the NASDAQ
and/or such other applicable laws or regulations as are in effect from time to
time.
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(b) Executive Committee. The Corporation shall have an
Executive Committee that shall be made up of any two directors who are
Independent Directors and any one additional director who is a member of
management. Subject to the limitations specified by the Florida Business
Corporation Act, the Executive Committee is hereby authorized to exercise all of
the powers of the Board of Directors when the Board of Directors is not in
session.
(c) Corporate Governance Committee. The Corporation shall have
a Corporate Governance Committee that shall be made up of all members of the
corporation's Board of Directors who are Independent Directors. The Board of
Directors shall adopt from time to time a Charter for the Corporate Governance
Committee that shall set forth the duties and authorities of such committee. The
Board of Directors may from time to time appoint a "Lead Director" who shall
serve as chairman of the Corporate Governance Committee and have such other
duties and authorities as are provided from time to time in the Charter for the
Corporate Governance Committee.
(d) Audit Committee. The Corporation shall have an Audit
Committee that shall be made up of any two or more directors who are Independent
Directors. The Board of Directors shall adopt from time to time a Charter for
the Audit Committee that shall set forth the duties and authorities of such
committee.
(e) Compensation Committee. The Corporation shall have an
Compensation Committee that shall be made up of any two or more directors who
are Independent Directors. The Board of Directors shall adopt from time to time
a Charter for the Compensation Committee that shall set forth the duties and
authorities of such committee.
Section 4.15 Action Without Meeting. Any action required or permitted
by the Act to be taken at a meeting of the Board of Directors or a committee
thereof may be taken without a meeting if the action is taken by all members of
the Board or of the committee. The action shall be evidenced by one or more
written consents describing the action taken, signed by each director or
committee member and retained by the corporation. Such action shall be effective
when the last director or committee member signs the consent, unless the consent
specifies a different effective date. A consent signed under this Section has
the effect of a vote at a meeting and may be described as such in any document.
ARTICLE 5
Officers
Section 5.1 Number. The principal officers of the corporation shall be
a Chief Executive Officer, a President and Chief Operating Officer, a Chief
Merchandising Officer, the number of Vice Presidents, if any, as authorized from
time to time by the
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Board of Directors, a Secretary, and a Chief Financial Officer, each of whom
shall be elected by the Board of Directors. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board of
Directors. The Board of Directors may also authorize any duly appointed officer
to appoint one or more officers or assistant officers. The same individual may
simultaneously hold more than one office. There shall also be a Chairman of the
Board of Directors and one or more Vice-chairman of the Board of Directors as
elected by the Board of Directors from time to time.
Section 5.2 Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected annually by
the Board of Directors at the first meeting of the Board of Directors held after
each annual meeting of the shareholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as is
practicable. Each officer shall hold office until his or her successor shall
have been duly elected or until his or her prior death, resignation, or removal.
Section 5.3 Removal. The Board of Directors may remove any officer and,
unless restricted by the Board of Directors, an officer may remove any officer
or assistant officer appointed by that officer, at any time, with or without
cause and notwithstanding the contract rights, if any, of the officer removed.
The appointment of an officer does not of itself create contract rights.
Section 5.4 Resignation. An officer may resign at any time by
delivering notice to the corporation. The resignation shall be effective when
the notice is delivered, unless the notice specifies a later effective date and
the corporation accepts the later effective date. If a resignation is made
effective at a later date and the corporation accepts the future effective date,
the pending vacancy may be filled before the effective date but the successor
may not take office until the effective date.
Section 5.5 Vacancies. A vacancy in any principal office because of
death, resignation, removal, disqualification, or otherwise, shall be filled as
soon thereafter as practicable by the Board of Directors for the unexpired
portion of the term. Prior to a meeting of the Board of Directors, the CEO shall
have the authority to appoint a replacement officer to serve until the Board of
Directors shall act on such officer.
Section 5.6 Chairman of the Board. The Chairman of the Board (the
"Chairman") shall, when present, preside at all meetings of the shareholders and
the Board of Directors.
Section 5.7 Vice-Chairman of the Board. The Vice-Chairman of the Board
shall If the Chairman is not present, preside at all meetings of the
shareholders and Board of Directors and if no Vice-Chairman is present, the
Board of Directors shall designate a person to serve as chairman of any the
meeting of the Board of Directors.
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Section 5.8 Chief Executive Officer. The Chief Executive Officer (the
"CEO") shall be the principal executive officer of the corporation and, subject
to the direction of the Board of Directors, shall in general supervise and
control all of the business operations and affairs of the corporation, the daily
operations of which shall be under the control of the President. The CEO shall
have authority, subject to such rules as may be prescribed by the Board of
Directors, to direct the President in the performance of the President's duties.
The CEO shall have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such agents and employees of the corporation as
he or she shall deem necessary, to prescribe their powers, duties and
compensation, and to delegate authority to them. Such agents and employees shall
hold office at the discretion of the CEO. The CEO shall have authority to sign
certificates for shares of the corporation the issuance of which shall have been
authorized by resolution of the Board of Directors, and to execute and
acknowledge, on behalf of the corporation, all deeds, mortgages, bonds,
contracts, leases, reports, and all other documents or instruments necessary or
proper to be executed in the course of the corporation's regular business, or
which shall be authorized by resolution of the Board of Directors; and, except
as otherwise provided by law or the Board of Directors, the CEO may authorize
the President, any Vice President or other officer or agent of the corporation
to execute and acknowledge such documents or instruments in his place and stead.
In general he or she shall perform all duties incident to the office of CEO and
such other duties as may be prescribed by the Board of Directors from time to
time.
Section 5.9 President. The President shall be the principal operating
officer of the corporation and, subject to the direction of the Board of
Directors and the CEO, shall in general supervise and control all of the
business operations and affairs of the corporation. The President shall have
authority, subject to such rules as may be prescribed by the Board of Directors
and/or the CEO, to appoint such agents and employees of the corporation as he
shall deem necessary, to prescribe their powers, duties and compensation, and to
delegate authority to them. Such agents and employees shall hold office at the
discretion of the President. The President shall have authority to sign
certificates for shares of the corporation the issuance of which shall have been
authorized by resolution of the Board of Directors, and to execute and
acknowledge, on behalf of the corporation, all deeds, mortgages, bonds,
contracts, leases, reports, and all other documents or instruments necessary or
proper to be executed in the course of the corporation's regular business, or
which shall be authorized by resolution of the Board of Directors; and, except
as otherwise provided by law or the Board of Directors and/or the CEO, the
President may authorize any Vice President or other officer or agent of the
corporation to execute and acknowledge such documents or instruments in his
place and stead. In general he or she shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors and/or the CEO from time to time. Moreover, in the absence of the CEO,
or in the event of the CEO's inability or refusal to act or in the event it
shall be impracticable for the CEO to act personally, the President shall
perform the duties of the CEO, and when so acting, shall have all the power of
and be subject to all restrictions upon the CEO.
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Section 5.10 Chief Merchandising Officer. The Chief Merchandising
Officer shall be principally responsible for selection and acquisition of the
merchandise offered for sale by the corporation and shall be third in command
following the CEO and the President. In the absence of the CEO and the President
or in the event of the CEO's and the President's death, inability or refusal to
act, or in the event for any reason it shall be impracticable for the CEO or the
President to act personally, the Chief Merchandising Officer shall perform the
duties of the CEO and the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the CEO and the President
Section 5.11 Vice Presidents. In the absence of the CEO, the President
and the Chief Merchandising Officer, or in the event of the CEO's, the
President's and the Chief Merchandising Officer's death, inability or refusal to
act, or in the event for any reason it shall be impracticable for the CEO or the
President or the Chief Merchandising Officer to act personally, the Vice
President, if any (or in the event there be more than one Vice President, the
Senior Vice President, or if no one has been appointed to that position or in
his absence, or if there if more than one Senior Vice President, then the Vice
Presidents in the order designated by the Board of Directors, of if no such
order has been designated by the Board of Directors, the order designated by the
CEO, shall perform the duties of the CEO, the President and the Chief
Merchandising Officer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the CEO, the President and the Chief
Merchandising Officer. Any Vice President may sign certificates for shares of
the corporation the issuance of which shall have been authorized by resolution
of the Board of Directors; and shall perform such other duties and have such
authority as from time to time may be delegated or assigned to him or her by the
CEO, the President, the Chief Merchandising Officer or by the Board of
Directors. The execution of any instrument of the corporation by any Vice
President shall be conclusive evidence, as to third parties, of his or her
authority to act in the stead of the CEO.
Section 5.12 Secretary. The Secretary shall: (a) keep, or cause to be
kept, minutes of the meetings of the shareholders and of the Board of Directors
(and of committees thereof) in one or more books provided for that purpose
(including records of actions taken by the shareholders or the Board of
Directors (or committees thereof) without a meeting); (b) be custodian of the
corporate records and of the seal of the corporation, if any, and if the
corporation has a seal, see that it is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (c)
authenticate the records of the corporation; (d) maintain, or cause to be
maintained, a record of the shareholders of the corporation, in a form that
permits preparation of a list of the names and addresses of all shareholders, by
class or series of shares and showing the number and class or series of shares
held by each shareholder; (e) have general charge of the stock transfer books of
the corporation; and (f) in general perform all duties incident to the office of
Secretary and have such other duties and exercise such authority as from time to
time may be delegated or assigned by the CEO, the President or by the Board of
Directors.
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Section 5.13 Chief Financial Officer. The Chief Financial Officer (the
"CFO") shall: (a) serve as the treasurer of the corporation and have charge and
custody of and be responsible for all funds and securities of the corporation;
(b) maintain appropriate accounting records; (c) receive and give receipts for
moneys due and payable to the corporation from any source whatsoever, and
deposit all such moneys in the name of the corporation in such banks, trust
companies, or other depositaries as shall be selected in accordance with the
provisions of these bylaws; and (d) in general perform all of the duties
incident to the office of CFO and have such other duties and exercise such other
authority as from time to time may be delegated or assigned by the President or
by the Board of Directors.
Section 5.14 Comptroller and Assistant Secretaries. There shall be a
Comptroller and such number of Assistant Secretaries and assistants to the Chief
Financial Officer and Comptroller as the Board of Directors may from time to
time authorize or as are appointed by the CEO, the Chief Financial Officer or
the Secretary. The Comptroller, Assistant Secretaries and other assistants, in
general, shall perform such duties and have such authority as shall from time to
time be delegated or assigned to them by the CFO or the Secretary respectively,
or by the CEO, the President, the Chief Merchandising Officer or the Board of
Directors.
Section 5.15 Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint, or to authorize any duly appointed
officer of the corporation to appoint, any person to act as assistant to any
officer, or as agent for the corporation in his or her stead, or to perform the
duties of such officer whenever for any reason it is impracticable for such
officer to act personally, and such assistant or acting officer or other agent
so appointed by the Board of Directors or an authorized officer shall have the
power to perform all the duties of the office to which he or she is so appointed
to be an assistant, or as to which he or she is so appointed to act, except as
such power may be otherwise defined or restricted by the Board of Directors or
the appointing officer.
Section 5.16 Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or by a duly authorized
committee thereof, and no officer shall be prevented from receiving such salary
by reason of the fact that he or she is also a director of the corporation.
ARTICLE 6
Contracts, Checks and Deposits; Special Corporate Acts
Section 6.1 Contracts. The Board of Directors may authorize any officer
or officers, or any agent or agents to enter into any contract or execute or
deliver any instrument in the name of and on behalf of the corporation, and such
authorization may be general or confined to specific instances. In the absence
of other designation, all deeds, mortgages, and instruments of assignment or
pledge made by the corporation shall be executed in the name of the corporation
by the President or one of the Vice Presidents; the Secretary or an Assistant
Secretary, when necessary or required, shall
18
attest and affix the corporate seal, if any, thereto; and when so executed no
other party to such instrument or any third party shall be required to make any
inquiry into the authority of the signing officer or officers.
Section 6.2 Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such indebtedness
shall be issued in its name unless authorized by or under the authority of a
resolution of the Board of Directors. Such authorization may be general or
confined to specific instances.
Section 6.3 Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, notes, or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by or under the authority of a resolution of the Board of Directors.
Section 6.4 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies, or other depositaries as may be selected by or
under the authority of a resolution of the Board of Directors.
Section 6.5 Voting of Securities Owned by Corporation. Subject always
to the specific directions of the Board of Directors, (a) any shares or other
securities issued by any other corporation and owned or controlled by this
corporation may be voted at any meeting of security holders of such other
corporation by the President of this corporation if he or she be present, or in
his or her absence, by any Vice President of this corporation who may be
present, and (b) whenever, in the judgment of the President, or in his or her
absence, of any Vice President, it is desirable for this corporation to execute
a proxy or written consent in respect of any such shares or other securities,
such proxy or consent shall be executed in the name of this corporation by the
President or one of the Vice Presidents, if any, of this corporation, without
necessity of any authorization by the Board of Directors, affixation of
corporate seal, if any, or countersignature or attestation by another officer.
Any person or persons designated in the manner above stated as the proxy or
proxies of this corporation shall have full right, power, and authority to vote
the shares or other securities issued by such other corporation and owned or
controlled by this corporation the same as such shares or other securities might
be voted by this corporation.
ARTICLE 7
Certificates for Shares; Transfer of Shares
Section 7.1 Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible or
intangible property or benefit to the corporation, including cash, promissory
notes, services performed, promises to perform services evidenced by a written
contract, or other securities of the corporation. Before the corporation issues
shares, the Board of Directors shall
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determine that the consideration received or to be received for the shares to be
issued is adequate. The determination of the Board of Directors is conclusive
insofar as the adequacy of consideration for the issuance of shares relates to
whether the shares are validly issued, fully paid, and nonassessable. The
corporation may place in escrow shares issued for future services or benefits or
a promissory note, or make other arrangements to restrict the transfer of the
shares, and may credit distributions in respect of the shares against their
purchase price, until the services are performed, the note is paid, or the
benefits are received. If the services are not performed, the note is not paid,
or the benefits are not received, the corporation may cancel, in whole or in
part, the shares escrowed or restricted and the distributions credited.
Section 7.2 Certificates for Shares. Every holder of shares in the
corporation shall be entitled to have a certificate representing all shares to
which he or she is entitled unless the Board of Directors authorizes the
issuance of some or all shares without certificates. Any such authorization
shall not affect shares already represented by certificates until the
certificates are surrendered to the corporation. If the Board of Directors
authorizes the issuance of any shares without certificates, within a reasonable
time after the issue or transfer of any such shares, the corporation shall send
the shareholder a written statement of the information required by the Act to be
set forth on certificates, including any restrictions on transfer. Certificates
representing shares of the corporation shall be in such form, consistent with
the Act, as shall be determined by the Board of Directors. Such certificates
shall be signed (either manually or in facsimile) by the President or any Vice
President or any other persons designated by the Board of Directors and may be
sealed with the seal of the corporation or a facsimile thereof. All certificates
for shares shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the stock transfer
books of the corporation. Unless the Board of Directors authorizes shares
without certificates, all certificates surrendered to the corporation for
transfer shall be canceled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
canceled, except as provided in these bylaws with respect to lost, destroyed, or
stolen certificates. The validity of a share certificate is not affected if a
person who signed the certificate (either manually or in facsimile) no longer
holds office when the certificate is issued.
Section 7.3 Transfer of Shares Prior to due presentment of a
certificate for shares for registration of transfer, the corporation may treat
the registered owner of such shares as the person exclusively entitled to vote,
to receive notifications, and otherwise to have and exercise all the rights and
power of an owner. Where a certificate for shares is presented to the
corporation with a request to register a transfer, the corporation shall not be
liable to the owner or any other person suffering loss as a result of such
registration of transfer if (a) there were on or with the certificate the
necessary endorsements, and (b) the corporation had no duty to inquire into
adverse claims or has discharged any such duty. The corporation may require
reasonable assurance that such endorsements are genuine and effective and
compliance with such
20
other regulations as may be prescribed by or under the authority of the Board of
Directors.
Section 7.4 Restrictions on Transfer. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation as required by
the Act of any restriction imposed by the corporation upon the transfer of such
shares.
Section 7.5 Lost, Destroyed, or Stolen Certificates. Unless the Board
of Directors authorizes shares without certificates, where the owner claims that
certificates for shares have been lost, destroyed, or wrongfully taken, a new
certificate shall be issued in place thereof if the owner (a) so requests before
the corporation has notice that such shares have been acquired by a bona fide
purchaser, (b) files with the corporation a sufficient indemnity bond if
required by the Board of Directors or any principal officer, and (c) satisfies
such other reasonable requirements as may be prescribed by or under the
authority of the Board of Directors.
Section 7.6 Stock Regulations. The Board of Directors shall have the
power and authority to make all such further rules and regulations not
inconsistent with law as they may deem expedient concerning the issue, transfer,
and registration of shares of the corporation.
ARTICLE 8
Seal
Section 8.1 Seal. The Board of Directors may provide for a corporate
seal for the corporation.
ARTICLE 9
Books and Records
Section 9.1 Books and Records.
(a) The corporation shall keep as permanent records minutes
of all meetings of the shareholders and Board of Directors, a record of all
actions taken by the shareholders or Board of Directors without a meeting, and a
record of all actions taken by a committee of the Board of Directors in place of
the Board of Directors on behalf of the corporation.
(b) The corporation shall maintain accurate accounting records
(c) The corporation or its agent shall maintain a record of
the shareholders in a form that permits preparation of a list of the names and
addresses of all shareholders in alphabetical order by class of shares showing
the number and series of shares held by each.
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(d) The corporation shall keep a copy of all written
communications within the preceding three years to all shareholders generally or
to all shareholders of a class or series, including the financial statements
required to be furnished by the Act, and a copy of its most recent annual report
delivered to the Department of State.
Section 9.2 Shareholders' Inspection Rights. Shareholders are entitled
to inspect and copy records of the corporation as permitted by the Act.
Section 9.3 Distribution of Financial Information. The corporation
shall prepare and disseminate financial statements to shareholders as required
by the Act.
Section 9.4 Other Reports. The corporation shall disseminate such other
reports to shareholders as are required by the Act, including reports regarding
indemnification in certain circumstances and reports regarding the issuance or
authorization for issuance of shares in exchange for promises to render services
in the future.
ARTICLE 10
Indemnification
Section 10.1 Provision of Indemnification. The corporation shall, to
the fullest extent permitted or required by the Act, including any amendments
thereto (but in the case of any such amendment, only to the extent such
amendment permits or requires the corporation to provide broader indemnification
rights than prior to such amendment), indemnify its Directors against any and
all Liabilities, and advance any and all reasonable Expenses, incurred thereby
in any Proceeding to which any such Director is a Party because he or she is or
was a Director of the corporation. The rights to indemnification granted
hereunder shall not be deemed exclusive of any other rights to indemnification
against Liabilities or the advancement of Expenses which a Director may be
entitled under any written agreement, Board resolution, vote of shareholders,
the Act, or otherwise. The corporation may, but shall not be required to,
supplement the foregoing rights to indemnification against Liabilities and
advancement of Expenses by the purchase of insurance on behalf of any one or
more of such Directors whether or not the corporation would be obligated to
indemnify or advance Expenses to such Director under this Article. For purposes
of this Article, the terms "Directors" includes former directors and any
directors who are or were serving at the request of the corporation as
directors, officers, employees, or agents of another corporation, partnership,
joint venture, trust, or other enterprise, including, without limitation, any
employee benefit plan (other than in the capacity as agents separately retained
and compensated for the provision of goods or services to the enterprise,
including, without limitation, attorneys-at-law, accountants, and financial
consultants). All other capitalized terms used in this Article and not otherwise
defined herein shall have the meaning set forth in Section 607.0850, Florida
Statutes (1991), as in effect on the date hereof. The provisions of this Article
are intended solely for the benefit of the indemnified parties described herein,
their heirs and personal representatives and shall
22
not create any rights in favor of third parties. No amendment to or repeal of
this Article shall diminish the rights of indemnification provided for herein
prior to such amendment or repeal.
ARTICLE 11
Amendments
Section 11.1 Power to Amend. These bylaws may be amended or repealed by
either the Board of Directors or the shareholders, unless the articles of
incorporation or the Act reserves the power to amend these bylaws generally or
any particular bylaw provision, as the case may be, exclusively to the
shareholders or unless the shareholders, in amending or repealing these bylaws
generally or any particular bylaw provision, provide expressly that the Board of
Directors may not amend or repeal these bylaws or such bylaw provision, as the
case may be.