Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CLAIRE'S STORES, INC.
May 29, 2007
ARTICLE I MEETINGS OF SHAREHOLDERS ........................................ 1
Section 1. Annual Meeting ........................................ 1
Section 2. Special Meetings ...................................... 1
Section 3. Place ................................................. 1
Section 4. Notice ................................................ 1
Section 5. Manner of Notice ...................................... 2
Section 6. Notice of Adjourned Meetings .......................... 2
Section 7. Fixing of Record Date ................................. 3
Section 8. Shareholders' List For Meeting ........................ 3
Section 9. Shareholder Quorum and Voting ......................... 4
Section 10. Voting Entitlement of Shares ......................... 4
Section 11. Proxies .............................................. 5
Section 12. Voting Trust ........................................ 6
Section 13. Shareholders' Agreements ............................. 7
Section 14. Action by Shareholders' Without a Meeting ............ 8
ARTICLE II DIRECTORS ...................................................... 9
Section 1. Function .............................................. 9
Section 2. Qualification ......................................... 9
Section 3. Compensation .......................................... 9
Section 4. Duties of Directors ................................... 9
Section 5. Presumption of Assent ................................. 10
Section 6. Number ................................................ 10
Section 7. Election .............................................. 10
Section 8. Term .................................................. 10
Section 9. Resignation ........................................... 10
Section 10. Vacancies ............................................ 10
Section 11. Removal of Directors ................................. 11
Section 12. Quorum and Voting .................................... 11
Section 13. Conflicts of Interest ................................ 11
Section 14. Executive and other Committees ....................... 12
Section 15. Meetings ............................................. 13
Section 16. Notice of Meetings ................................... 13
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Section 17. Waiver of Notice ..................................... 13
Section 18. Action Without a Meeting ............................. 13
Section 19. Amendment by Board of Directors ...................... 14
ARTICLE III OFFICERS ...................................................... 14
Section 1. Officers ............................................. 14
Section 2. Powers and Duties .................................... 14
Section 3. Delegation ........................................... 15
Section 4. Resignation and Removal of Officers .................. 15
Section 5. Contract Rights ...................................... 16
ARTICLE IV STOCK CERTIFICATES ............................................. 16
Section 1. Form and Content of Certificates ...................... 16
Section 2. Transfer of Stock ..................................... 16
Section 3. Lost, Stolen or Destroyed Certificates ................ 17
ARTICLE V BOOKS AND RECORDS ............................................... 17
Section 1. Corporate Records ..................................... 17
Section 2. Inspection of Records by Shareholders ................. 18
Section 3. Scope of Inspection Right ............................. 19
Section 4. Financial Statements for Shareholders ................. 19
ARTICLE VI DIVIDENDS ...................................................... 19
Section 1. Distributions to Shareholders ......................... 19
Section 2. Share Dividends ....................................... 21
ARTICLE VII CORPORATE SEAL ................................................ 21
Section 1. Corporate Seal ........................................ 21
ARTICLE VIII EXECUTION OF DOCUMENTS ....................................... 21
Section 1. Execution of Documents ................................ 21
ARTICLE IX INDEMNIFICATION ................................................ 21
Section 1. Indemnification ....................................... 21
ARTICLE X AMENDMENT ....................................................... 22
Section 1. Amendment ............................................. 22
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ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting.
The annual meeting of the shareholders of this corporation shall be held
at the time and place designated by the Board of Directors of the corporation.
The annual meeting of shareholders for any calendar year shall be held no later
than thirteen months after the last preceding annual meeting of shareholders.
Business transacted at the annual meeting shall include the election of
directors of the corporation and any proper business as may come before the
meeting.
Section 2. Special Meetings.
Special meetings of the shareholders shall be held when directed by the
Board of Directors, or when a signed and dated written demand is delivered to
the secretary of the corporation by the holders of not less than ten (10%)
percent of all votes entitled to be cast on any issue to be considered at the
proposed special meeting, describing the purposes of the proposed special
meeting. At any special meeting only such business may be transacted which is
related to the purpose or purposes set forth in the notice of such special
meeting.
Section 3. Place.
Meetings of shareholders may be held within or without the State of
Florida.
Section 4. Notice.
The corporation shall notify shareholders of the date, time and place of
each annual and special shareholders' meeting no fewer than ten (10) or more
than sixty (60) days before the meeting date. Unless the Florida Business
Corporation Act, as amended (the "Act"), or the Articles of Incorporation
require otherwise, the corporation is required to give notice only to
shareholders entitled to vote at the meeting. Notice shall be given in the
manner provided in Section 5 below, by or at the direction of the president, the
secretary, or the officer or persons calling the meeting. If the notice is
mailed at least thirty (30) days before the date of the meeting, it may be done
by a class of United States mail other than first class. Notwithstanding Section
5 below, if mailed, such notice 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.
Unless the Act or the Articles of Incorporation require otherwise, notice
of an annual meeting need not include a description of the purpose or purposes
for which the meeting is called.
Notice of a special meeting must include a description of the purpose or
purposes for which the meeting is called.
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Notwithstanding the foregoing, no notice of a shareholders' meeting need
be given to a shareholder if (a) an annual report and proxy statement for two
consecutive annual meetings of shareholders or (b) all, and at least two, checks
in payment of dividends or interest on securities during a twelve (12) 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 5. Manner of Notice.
Any notice given under these By-laws must be written and may be
communicated in person, telegraph, teletype or other form of electronic
communication, or by mail.
Written notice by the corporation to a shareholder shall be effective when
mailed, if mailed postpaid and correctly addressed to the shareholder's address
shown in the corporation's current record of shareholders.
Written notice to a domestic or foreign corporation authorized to transact
business in this state may be addressed to its registered agent at its
registered office or to the corporation or its secretary at its principal office
shown in its most recent annual report or, in the case of corporation that has
not yet delivered an annual report, in a domestic corporation's articles of
incorporation or in a foreign corporation's application for certificate of
authority.
Except as otherwise provided herein or in the Act, written notice shall be
effective at the earliest date of the following: (a) when received; (b) five
days after its deposit in the United States mail, as evidenced by the postmark,
if mailed postpaid and correctly addressed; or (c) on the date shown on the
return receipt, if sent by registered or certified mail return receipt
requested, and the receipt is signed by or on behalf of the addressee.
Section 6. Notice of Adjourned Meetings.
If an annual or special shareholders' 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 a new record date
for the adjourned meeting is or must be fixed, however, notice of the adjourned
meeting must be given as provided in Section 5 above to persons who are
shareholders as of the new record date who are entitled to notice of the
meeting.
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Section 7. Fixing of Record Date.
For the purpose of determining shareholders entitled to notice of a
shareholders' meeting, to demand a special meeting, to vote, or to take any
other action, the Board of Directors may fix the record date. 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. The record date for
determining shareholders entitled to demand a special meeting is the date the
first shareholder delivers his or her demand to the corporation.
If not otherwise provided by or pursuant to these By-laws and 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 is
the date the first signed written consent is delivered to the corporation. If
not otherwise provided by or pursuant to these By-laws and if 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 is at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
If not otherwise provided by or pursuant to these By-laws, the record date
for determining shareholders entitled to notice of and to vote at an annual or
special shareholders' meeting is the close of business on the day before the
first notice is delivered to shareholders. A record date for purposes of this
section may not be more than seventy (70) days before the meeting or action
requiring a determination of shareholders. A determination of 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 the one
hundred twenty (120) days after the date fixed for the original meeting.
Section 8. Shareholders' List For Meeting.
After fixing a record date for a meeting, the corporation shall prepare an
alphabetical list of the names of all its shareholders who are entitled to
notice of a shareholders' meeting, arranged by voting group with the address of,
and the number and class and series, if any, of shares held by, each. The
shareholders' list must be available for inspection by any shareholder for a
period of ten (10) days prior to the meeting or such shorter time as exists
between the record date and the meeting 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. A shareholder or his or her agent or
attorney is entitled on written demand to inspect the list during regular
business hours and at his or her expense during the period it is available for
inspection. The corporation shall make the shareholders' list available at the
meeting, and any shareholder or his or her agent or attorney is entitled to
inspect the list at any time during the meeting or any adjournment.
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, the meeting
shall be adjourned until such requirements are complied with on the demand of
any shareholder in person or by proxy who failed to get such
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access. Refusal or failure to comply with the requirements of this section shall
not affect the validity of any action taken at such meeting.
Section 9. Shareholder Quorum and Voting.
A majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. When a specified
item of business is required to be voted on by a class or series of stock, a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series.
If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on the subject matter shall be
the act of the shareholders unless otherwise provided by law.
After a quorum has been established at a shareholders' meeting, the
subsequent withdrawal of shareholders, so as to reduce the number of shares
entitled to vote at the meeting below the number required for a quorum, shall
not affect the validity of any action taken at the meeting or any adjournment
thereof.
Section 10. Voting Entitlement of Shares.
Except as otherwise provided below, each outstanding share, regardless of
class, is entitled to one vote on each matter submitted to a vote at a meeting
of shareholders. Only shares are entitled to vote.
The shares of the corporation are not entitled to vote if they are owned,
directly or indirectly, by a second corporation, domestic or foreign, and the
corporation owns, directly or indirectly, a majority of the shares entitled to
vote for directors of the second corporation. This paragraph does not limit the
power of the corporation to vote any shares, including its own shares, held by
it in a fiduciary capacity.
Redeemable shares are not entitled to vote on any matter, and shall not be
deemed to be outstanding after notice of redemption is mailed to the holders
thereof and a sum sufficient to redeem such shares has been deposited with a
bank, trust company, or other financial institution upon an irrevocable
obligation to pay the holders the redemption price upon surrender of the shares.
Shares standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent or proxy as the By-laws of the corporate
shareholder or, in the absence of any applicable provision, by such person as
the Board of Directors of the corporate shareholder may designate. In the
absence of any such designation, or in case of a conflicting designation by the
corporate shareholder, the chairman of the board, the president, any vice
president, the secretary and the treasurer of the corporate shareholder, in that
order, shall be presumed to be fully authorized to vote such shares.
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Shares held by an administrator, executor, guardian, personal
representative or conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his name. Shares standing in the
name of a trustee may be voted by him or her, either in person or by proxy, but
no trustee shall be entitled to vote shares held by him or her without a
transfer of such shares into his or her name or the name of his or her nominee.
Shares held by or under the control of a receiver, a trustee in bankruptcy
proceedings or an assignee for the benefit of creditors may be voted by him or
her without the transfer thereof into his or her name.
If a share or shares stand of record in the names of two or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in common,
tenants by the entirety, or otherwise, or if two or more persons have the same
fiduciary relationship respecting the same shares, unless the secretary of the
corporation is given notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, the acts with respect to voting have the following effect: (a) if
only one votes, in person or by proxy, his or her act binds all; (b) if more
than one votes, in person or by proxy, the act of the majority so voting binds
all; (c) if more than one votes, in person or by proxy, but the vote is evenly
split on any particular matter, each faction is entitled to vote the share or
shares in question proportionally; (d) if the instrument or order so filed shows
that any such tenancy is held in unequal interest, a majority or a vote evenly
split for purposes of this section shall be a majority or a vote evenly split in
interest; (e) the principles of this section shall apply, insofar as possible,
to execution of proxies, waivers, consents, or objections and for the purpose of
ascertaining the presence of a quorum.
Nothing herein contained shall prevent trustees or other fiduciaries
holding shares registered in the name of a nominee from causing such shares to
be voted by such nominee as the trustee or other fiduciary may direct. Such
nominee may vote shares as directed by a trustee or other fiduciary without the
necessity of transferring the shares to the name of the trustee or other
fiduciary.
Section 11. Proxies.
A shareholder, other person entitled to vote on behalf of a shareholder
pursuant to Section 10 above or an attorney-in-fact for a shareholder may vote
the shareholder's shares in person or by proxy.
A shareholder, other person entitled to vote on behalf of a shareholder or
an attorney-in-fact for a shareholder may appoint a proxy to vote or otherwise
act for the shareholder by signing an appointment form or by electronic
transmission. Any type of electronic transmission, including, but not limited to
telegrams, cablegrams, telephone transmissions, and transmissions through the
Internet, or photographic, photostatic or equivalent reproductions thereof,
appearing to have been, or containing or accompanied by such information or
obtained under such procedures as to reasonably ensure that the electronic
transmission was, transmitted by such person is a sufficient appointment,
subject to any verification requested by this corporation.
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Without limiting the manner in which a shareholder, other person entitled
to vote on behalf of a shareholder or an attorney-in-fact for a shareholder may
appoint a proxy to vote or otherwise act for the shareholder, a shareholder,
other person entitled to vote on behalf of a shareholder or an attorney-in-fact
for a shareholder may make such an appointment by (i) signing an appointment
form, with the signature affixed, by any reasonable means including, but not
limited to, facsimile or electronic signature, (ii) transmitting or authorizing
the transmission of an electronic transmission to the person who will be
appointed as the proxy or to a proxy solicitation firm, proxy support service
organization, registrar, or agent authorized by the person who will be
designated as the proxy to receive such transmission. However, any electronic
transmission must set forth or be submitted with information from which it can
be determined by the inspector or inspectors of election or, if no such
inspector or inspectors exist, such other person or persons making that
determination on behalf of this corporation that the electronic transmission was
authorized by the shareholder, other person entitled to vote on behalf of a
shareholder or an attorney-in-fact for a shareholder. If it is determined that
the electronic transmission is valid, the inspector or inspectors of election
or, if no such inspector or inspectors exist, such other person or persons
making that determination on behalf of this corporation shall specify the
information upon which they relied.
An appointment of a proxy is effective when received by the secretary or
other officer or agent authorized to tabulate votes. An appointment is valid for
up to eleven (11) months unless a longer period is expressly provided in the
appointment.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his or her
authority under the appointment.
If an appointment form expressly provides, any proxy holder may appoint,
in writing, a substitute to act in his or her place.
Section 12. Voting Trusts.
One or more shareholders may create a voting trust, conferring on a
trustee the right to vote or otherwise act for them, by signing an agreement
setting out the provisions of the trust as provided by law and transferring
their shares to a trustee. The trustee shall thereafter prepare a list of names
and addresses of all owners of beneficial interests in the trust, together with
the number and class of shares of each transferred to the trust, and deliver
copies of the list and agreement to the corporation's principal office. After
filing a copy of the list and agreement in the corporation's principal office.
such copies shall be open to inspection by any shareholder of the corporation
(subject to the requirements of Article V herein) or any beneficiary of the
trust under the agreement during business hours.
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Section 13. Shareholders' Agreements.
Two or more shareholders of this corporation may provide for the manner in
which they will vote their shares by signing an agreement for that purpose as
provided by law. A shareholders' agreement created hereunder as provided by law
is specifically enforceable.
Subject to and otherwise limited by Section 607.0732 of the Act, as
amended from time to time, a written agreement among the shareholders of this
corporation, provided that there are 100 or fewer shareholders of the
corporation at the time of the written agreement and the shares of the
corporation are not listed on a national securities exchange nor regularly
quoted in a national or affiliated securities market, is effective among the
shareholders and the corporation at such time as such agreement is approved and
signed by all persons who are shareholders at the time of the agreement and it
is made known to the corporation, even though it is inconsistent with one or
more of the provisions of the Act, if it:
(a) Eliminates the Board of Directors or restricts the discretion or
powers of the Board of Directors;
(b) Governs the authorization or making of distributions whether or not in
proportion to ownership of shares, subject to the limitations in Section
607.06401 of the Act;
(c) Establishes who shall be directors or officers of this corporation, or
their terms of office or manner of selection or removal;
(d) Governs, in general or in regard to specific matters, the exercise or
division of voting power by the shareholders and directors, including use of
weighted voting rights or director proxies;
(e) Establishes the terms and conditions of any agreement for the transfer
or use of property or the provision of services between this corporation and any
shareholder, director, officer, or employee of this corporation;
(f) Transfers to any shareholder or other person any authority to exercise
the corporate powers or to manage the business and affairs of the corporation,
including the resolution of any issue about which there exists a deadlock among
directors or shareholders; or
(g) Requires dissolution of the corporation at the request of one or more
of the shareholders or upon the occurrence of a specified event or contingency.
The written agreement, at such time as it is approved and signed by all of
the then shareholders of the corporation, shall thereby amend these By-laws to
reflect such agreement, and, to the extent that these By-laws are inconsistent
with any of the terms or provisions of such agreement, such terms and provisions
of the agreement shall govern.
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Section 14. Action by Shareholders Without a Meeting.
Any action required by law, these By-laws or the Articles of Incorporation
of this corporation to be taken at any annual or special meeting of the
shareholders of the corporation, or any action which may be taken at any annual
or special meeting of the shareholders of this corporation, may be taken without
a meeting, without prior notice and without a vote, if the action is taken by
the holders of outstanding stock of each voting group entitled to vote thereon
having not less than the minimum number of votes with respect to each voting
group 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. In order to be effective, the action must be evidenced by one or more
written consents describing the action taken, dated and signed by approving
shareholders having the requisite number of votes of each voting group entitled
to vote thereon, and delivered to this corporation by delivery to its principal
office in this state, its principal place of business, the corporate secretary,
or another officer or agent of this corporation having custody of the book 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 60 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 herein.
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 this state or its principal place of business, or
received by the corporate secretary or other officer or agent of the corporation
having custody of the book in which proceedings of meetings of shareholders are
recorded.
Within ten (10) days after obtaining such authorization by written
consent, notice must be given 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 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 further provisions
of the Act regarding the rights of dissenting shareholders.
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 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.
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ARTICLE II
DIRECTORS
Section 1. Function.
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, its
Board of Directors.
Section 2. Qualification.
Directors must be natural persons who are eighteen (18) years of age or
older but need not be residents of the State of Florida or shareholders of this
corporation.
Section 3. Compensation.
The Board of Directors may fix the compensation of directors.
Section 4. Duties of Directors.
A director shall discharge his or her duties as a director, including his
or her duties as a member of a committee: in good faith; with the care an
ordinarily prudent person in a like position would exercise under similar
circumstances; and in a manner he or she reasonably believes to be in the best
interests of the corporation.
In discharging his or her duties, a director is entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, if prepared or presented by:
(a) One or more officers or employees of the corporation whom the
director reasonably believes to be reliable and competent in the
matters presented;
(b) Legal counsel, public accountants or other persons as to matters the
director reasonably believes are within the persons' professional or
expert competence; or
(c) A committee of the Board of Directors of which he is not a member,
if the director reasonably believes the committee merits confidence.
In discharging his or her duties, a director may consider such factors as
the director deems relevant, including the long-term prospects and interests of
the corporation and its shareholders, and the social, economic, legal, or other
effects of any action on the employees, suppliers, customers of the corporation
or its subsidiaries, the communities and society in which the corporation or its
subsidiaries operate, and the economy of the state and the nation.
A director is not acting in good faith if he or she has knowledge
concerning the matter in question that makes reliance otherwise permitted by
this section unwarranted. A director is not liable for any action taken as a
director, or any failure to take any action, if he or she performed the duties
of his or her office in compliance with this section.
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Section 5. Presumption of Assent.
A director of the corporation who is present at a meeting of its 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 6. Number.
This corporation shall initially have two (2) directors. The number of
directors may be increased or decreased from time to time as determined by a
majority of the entire Board of Directors of this corporation or by amendment to
these By-laws, except that the number of directors shall at all times be at
least one.
Section 7. Election.
Directors are elected at the first annual shareholders' meeting and at
each annual meeting thereafter.
Section 8. Term.
The terms of the initial directors of the corporation expire at the first
shareholders' meeting at which directors are elected. The terms of all other
directors expire at the next annual shareholders' meeting following their
election. A decrease in the number of directors does not shorten an incumbent
director's term. The term of a director elected to fill a vacancy expires at the
next shareholders' meeting at which directors are elected. Despite the
expiration of a director's term, he or she continues to serve until his or her
successor is elected and qualifies or until there is a decrease in the number of
directors.
Section 9. Resignation.
A director may resign at any time by delivering written notice to the
Board of Directors or its chairman or to the corporation. A resignation is
effective when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later date, the Board of
Directors may fill the pending vacancy before the effective date if the Board of
Directors provides that the successor does not take office until the effective
date.
Section 10. Vacancies.
Whenever a 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.
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A vacancy that will occur at a specific later date (by reason 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 11. Removal of Directors.
The shareholders may remove one or more directors with or without cause at
a meeting of shareholders, provided the notice of the meeting states that the
purpose, or one of the purposes, of the meeting is removal of the director. If a
director is elected by a voting group of shareholders, only the shareholders of
that voting group may participate in the vote to remove him or her.
Section 12. Quorum and Voting.
A quorum of the Board of Directors consists of a majority of the number of
directors. 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.
Section 13. Conflicts of Interest.
No contract or other transaction between this corporation and one or more
of its directors or any other corporation, firm, association or entity in which
one or more of the directors are directors or officers or are financially
interested shall be either void or voidable because of such relationship or
interest or because such director or directors are present at the meeting of the
Board of Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction or because his or their votes are counted for such
purpose, if:
(a) the fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or
ratifies the contract or transaction by a vote or consent sufficient
for the purpose without counting the votes or consents of such
interested directors; or
(b) the fact of such relationship or interest is disclosed or known to
the shareholders entitled to vote 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, committee or
the shareholders.
For purposes of subparagraph (a) above only, a conflict of interest
transaction is authorized, approved, or ratified if it receives the affirmative
vote of a majority of the directors on the Board of Directors, or on the
committee, who have no relationship or interest in the transaction described in
this section, but a transaction may not be authorized, approved, or ratified
under this section by a single director. If a majority of the directors who have
no such relationship or interest in the transaction vote to authorize, approve
or ratify the transaction, a quorum is present for the purposes for taking
action under subparagraph (a) above. The presence of, or a vote cast by, a
director with such relationship or interest in the transaction does not affect
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the validity of any action taken under subparagraph (a) above if the transaction
is otherwise authorized, approved, or ratified as provided in that subparagraph,
but such presence or vote of those directors may be counted for purposes of
determining whether the transaction is approved under other sections of the Act.
For purposes of subparagraph (b) above, a conflict of interest transaction
is authorized, approved or ratified if it receives the vote of a majority of the
shares entitled to be counted under this section. Shares owned by or voted under
the control of a director who has a relationship or interest in the transaction
described in this section may not be counted in a vote of shareholders to
determine whether to authorize, approve or ratify a conflict of interest
transaction under subparagraph (b) above. The vote of those shares, however, is
counted in determining whether the transaction is approved under other sections
of the Act. A majority of the shares, whether or not present, that are entitled
to be counted in a vote on the transaction under this section constitutes a
quorum for the purpose of taking action under this section.
Section 14. Executive and Other Committees.
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, consisting of a minimum of two (2) directors
who serve at the pleasure of the Board of Directors, 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 committee shall have the
authority to:
(a) Approve or recommend to shareholders actions or proposals required
by law to be approved by shareholders;
(b) Fill vacancies on the Board of Directors or any committee thereof;
(c) Adopt, amend or repeal the 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 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.
The provisions of Section 12 above and Sections 15, 16 and 17 below, which
govern meetings, notice and waiver of notice, and quorum and voting requirements
of the Board of Directors, shall apply to committees and their members as well.
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Section 15. Meetings.
The Board of Directors may hold regular or special meetings in or out of
the State of Florida. 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 were not present at the time of the adjournment and, unless the time and
place of the adjourned meeting are announced at the time of the adjournment. to
the other directors. Meetings of the Board of Directors may be called by the
chairman of the Board or by the president of the corporation or by at least two
directors. The Board of Directors may permit any or all directors to participate
in a regular or 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 16. Notice of Meetings.
Regular meetings of the Board of Directors may be held without notice of
the date, time, place or purpose of the meeting. Special meetings of the Board
of Directors must be preceded by at least two (2) days notice of the date, time
and place of the meeting. The notice need not describe the purpose of the
special meeting unless required by the articles of incorporation or these
By-laws.
Section 17. 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 a 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 18. Action Without a Meeting.
Any action required or permitted to be taken at a Board of Directors'
meeting or committee meeting may be taken without a meeting if the action is
taken by all members of the Board of Directors or the committee. The actions
must be evidenced by one or more written consents describing the action taken
and signed by each director or committee member.
Action taken under this section is effective when the last director signs
the consent, unless the consent specifies a different effective date. A consent
signed under this section has the effect of a meeting vote and may be described
as such in any document.
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Section 19. Amendment by Board of Directors.
The corporation's Board of Directors may adopt one or more amendments to
the corporation's Articles of Incorporation without shareholder action:
(1) To delete the names and addresses of the initial directors;
(2) To delete the name and address of the initial registered agent or
registered office, if a statement of change is on file with the
Department of State;
(3) To delete any other information contained in the Articles of
Incorporation that is solely of historical interest;
(4) To delete the authorization for a class or series of shares
authorized as provided by law, if no shares of such class or series
have been issued;
(5) To change the par value for a class or series of shares;
(6) To change the corporate name by substituting the word "corporation,"
"Incorporated," or "company," or the abbreviation "corp.," "Inc.,"
or "Co.," for a similar word or abbreviation in the name, or by
adding, deleting, or changing a geographical attribution for the
name;
(7) To change each issued and unissued authorized share of an
outstanding class into a greater number of whole shares if the
corporation has only shares of that class outstanding; or
(8) To make any other change expressly permitted by the Act to be made
without shareholder action.
ARTICLE III
OFFICERS
Section 1. Officers.
The Board of Directors may elect from its own members a chairman of the
Board and may elect a president and such vice presidents and a treasurer as in
the opinion of the Board of Directors the business of the corporation requires.
The Board of Directors shall elect a secretary and shall delegate to the
secretary responsibility for preparing minutes of the directors' and
shareholders' meetings and for authenticating records of the corporation. The
Board of Directors or the president may appoint one or more other officers or
assistant officers. The same individual may simultaneously hold more than one
office in the corporation.
Section 2. Powers and Duties.
The officers of the corporation shall have the following duties:
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(a) The chairman of the Board, if elected, or failing his or her
election, the president, shall preside at all meetings of the
shareholders and Board of Directors and shall have such other powers
and perform such other duties as may be prescribed from time to time
by the Board of Directors.
(b) The president shall be the chief executive, operating and
administrative officer of the corporation, shall have general charge
and supervision of its business, affairs, administration and
operations subject to the direction of the Board of Directors, and
shall, in the absence or failing the election of a chairman of the
Board, preside at all meetings of the shareholders and the Board of
Directors. The president shall have such other powers and perform
such other duties as may from time to time be assigned to him or her
by the Board of Directors.
(c) Each of the vice presidents, if elected, shall have such powers and
shall perform such duties as may from time to time be assigned to
him or her by the Board of Directors.
(d) The secretary shall be the custodian of, and shall maintain, all of
the corporate records except the financial records, shall
authenticate all corporate records, shall prepare and record the
minutes of all meetings of the shareholders and Board of Directors,
send out all notices of meetings, and shall have such other powers
and shall perform such other duties as may be prescribed by the
Board of Directors or the president.
(e) The treasurer shall be the custodian of all corporate funds,
securities and financial records, shall keep full and accurate
accounts of receipts and disbursements and render accounts thereof
at the annual meetings of shareholders and whenever else required by
the Board of Directors or the president, and shall have such other
powers and perform such other duties as may be prescribed by the
Board of Directors or the president.
Section 3. Delegation.
In the event of the absence of any officer of this corporation or for any
other reason that the Board of Directors may deem sufficient, the Board of
Directors may at any time and from time to time delegate all or any part of the
powers or duties of any officer to any other officer or officers or to any
director or directors.
Section 4. Resignation and Removal of Officers.
An officer may resign at any time by delivering notice to the corporation.
A resignation is effective when the notice is delivered unless the notice
specifies a later effective date. If a resignation is made effective at a later
date and the corporation accepts the future effective date, the Board of
Directors may fill the pending vacancy before the effective date if the Board of
Directors provides that the successor does not take office until the effective
date.
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The Board of Directors may remove any officer at any time with or without
cause. Any officer or assistant officer, if appointed by the president, may
likewise be removed by the president.
Section 5. Contract Rights.
The appointment of an officer does not itself create contract rights. An
officer's removal does not effect the officer's contract rights, if any. with
the corporation. An officer's resignation does not affect the corporation's
contract rights, if any, with the officer.
ARTICLE IV
STOCK CERTIFICATES
Section 1. Form and Content of Certificates.
Shares shall be represented by certificates. At a minimum, each share
certificate must state on its face the name of the corporation, that the
corporation is organized under the laws of the State of Florida, the name of the
person to whom it is issued, the number and class of shares and the designation
of the series, if any, the certificate represents.
If the corporation is authorized to issue different classes of shares or
different series within a class, the designations, relative rights, preferences,
and limitations applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and the authority of
the Board of Directors to determine variations for future series) must be
summarized on the front or back of each certificate. Alternatively, each
certificate may state conspicuously on its front or back that the corporation
will furnish the shareholder a full statement of this information on request and
without charge.
Each share certificate must be signed (either manually or in facsimile) by
the president or a vice president and the secretary or an assistant secretary of
the corporation, and shall bear the corporate seal, if one has been adopted by
the Board of Directors, or its facsimile.
If the person who signed (either manually or in facsimile) a share
certificate no longer holds office when the certificate is issued, the
certificate is nevertheless valid.
Section 2. Transfer of Stock.
Subject to any restrictions on the transfer or registration of transfer of
the shares represented by a stock certificate which have been imposed or adopted
as authorized by the Act, the corporation shall register a stock certificate
presented to it for transfer if the certificate is properly endorsed by the
holder of record or by his or her duly authorized attorney and is accompanied
with any additional documents, instruments, certificates, signature guaranties
or other items required from time to time by the Board of Directors in its sole
discretion.
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Section 3. Lost, Stolen or Destroyed Certificates.
The corporation shall issue a new stock certificate in the place of any
certificate previously issued if the holder of record of the certificate (a)
makes proof in affidavit form that it has been lost, destroyed or wrongfully
taken; (b) requests the issue of a new certificate before the corporation has
notice that the certificate has been acquired by a purchaser for value in good
faith and without notice of any adverse claim; (c) gives bond or other security
or indemnity in such form as the corporation may direct to indemnify the
corporation, the transfer agent, and registrar against any claim that may be
made on account of the alleged loss, destruction, or theft of a certificate; and
(d) satisfies any other reasonable requirements imposed by the corporation.
ARTICLE V
BOOKS AND RECORDS
Section 1. Corporate Records.
The corporation shall keep as permanent records minutes of all meetings of
its shareholders and its 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. The corporation shall maintain accurate
accounting records.
The corporation or its agent shall maintain a record of its 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. The corporation shall maintain its records in
written form or in another form capable of conversion into written form within a
reasonable time. The corporation shall keep a copy of the following records:
(a) Its Articles or Restated Articles of Incorporation and all
amendments to them currently in effect;
(b) Its By-laws or Restated By-laws and all amendments to them currently
in effect;
(c) Resolutions adopted by its Board of Directors creating one or more
classes or series of shares and fixing their relative rights,
preferences, and limitations, if shares issued pursuant to those
resolutions are outstanding;
(d) The minutes of all shareholders' meetings and records of all action
taken by shareholders without a meeting for the past three (3)
years;
(e) Written communications to all shareholders' generally or all
shareholders of a class or series within the past three (3) years,
including the financial statements required to be furnished for the
past three (3) years under Section 4 of this Article V;
(f) A list of the names and business street addresses of its current
directors and officer; and
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(g) Its most recent annual report delivered to the Department of State.
Section 2. Inspection of Records by Shareholders.
A shareholder of the corporation is entitled to inspect and copy, during
regular business hours at the corporation's principal office, any of the records
of the corporation described in subparagraphs (a) through (g) in Section 1 above
if he or she gives the corporation written notice of his or her demand at least
five (5) business days before the date on which he or she wishes to inspect and
copy.
A shareholder of the corporation is entitled to inspect and copy, during
regular business hours at a reasonable location specified by the corporation,
any of the following records of the corporation if the shareholder meets the
requirements of this section and gives the corporation written notice of his or
her demand at least five (5) business days before the date on which he or she
wishes to inspect and copy:
(a) Excerpts from minutes of any meeting of the Board of Directors,
records of any action of a committee of the Board of Directors while
acting in place of the Board of Directors on behalf of the
corporation, minutes of any meeting of the shareholders, and records
of action taken by the shareholders or Board of Directors without a
meeting, to the extent not otherwise subject to inspection under
these By-laws;
(b) Accounting records of the corporation;
(c) The record of shareholders; and
(d) Any other books and records.
A shareholder may inspect and copy the records described in subparagraphs (a)
through (d) in the preceding paragraph only if:
(a) His or her demand is made in good faith and for a proper purpose;
(b) He or she describes with reasonable particularity his or her purpose
and the records he or she desires to inspect; and
(c) The records are directly connected with his or her purpose.
This section does not affect the right of a shareholder to inspect and
copy records under Article I, Section 8 of these By-laws, or, if the shareholder
is in litigation with the corporation, to the same extent as any other litigant;
or the power of a court, independently of the Act, to compel the production of
corporate records for examination.
For purposes of this section, the term "shareholder" includes a beneficial
owner whose shares are held in a voting trust or by a nominee on his or her
behalf; and a "proper purpose" means a purpose reasonably related to such
person's interest as a shareholder.
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Section 3. Scope of Inspection Right.
A shareholder's agent or attorney has the same inspection and copying
rights as the shareholder he represents. The right to copy and/or to have
converted unwritten records into written form and/or to otherwise inspect the
corporate records, including expenses and charges therefore, shall be the same
as provided or permitted by law.
Section 4. Financial Statements for Shareholders.
Unless modified by resolution of the shareholders within one hundred
twenty (120) days of the close of each fiscal year, the corporation shall
furnish its shareholders annual financial statements which may be consolidated
or combined statements of the corporation and one or more of its subsidiaries,
as appropriate, that include a balance sheet as of the end of the fiscal year,
an income statement for that year, and a statement of cash flows for that year.
If financial statements are prepared for the corporation on the basis of
generally accepted accounting principles, the annual financial statements must
also be prepared on that basis.
If the annual financial statements are reported upon by a public
accountant, his or her report must accompany them. If not, the statements must
be accompanied by a statement of the president or the person responsible for the
corporation's accounting records:
(a) Stating his or her reasonable belief whether the statements were
prepared on the basis of generally accepted accounting principles
and, if not, describing the basis of preparation; and
(b) Describing any respects in which the statements were not prepared on
a basis of accounting consistent with the statements prepared for
the preceding year.
A corporation shall mail the annual financial statements to each
shareholder within one hundred twenty (120) days after the close of each fiscal
year or within such additional time thereafter as is reasonably necessary to
enable the corporation to prepare its financial statements if, for reasons
beyond the corporation's control, it is unable to prepare its financial
statements within the prescribed period. Thereafter, on written request from a
shareholder who was not mailed the statements, the corporation shall mail him or
her the latest annual financial statements.
ARTICLE VI
DIVIDENDS
Section 1. Distributions to Shareholders.
The Board of Directors may authorize and the corporation may make
distributions to its shareholders subject to restriction by its Articles of
Incorporation and/or the Act.
If the Board of Directors does not fix the record date for determining
shareholders entitled to a distribution (other than one involving a purchase,
redemption or other acquisition of
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the corporation's shares), it is the date the Board of Directors authorizes the
distribution. No distribution may be made if, after giving it effect:
(a) the corporation would not be able to pay its debts as they become
due in the usual course of business; or
(b) the corporation's total assets would be less than the sum of its
total liabilities plus the amount that would be needed, if the
corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of shareholders
whose preferential rights are superior to those receiving the
distribution.
The Board of Directors may base a determination that a distribution is not
prohibited either on financial statements prepared on the basis of accounting
practices and principles that are reasonable in the circumstances or on a fair
valuation or other method that is reasonable in the circumstances. In the case
of any distribution based upon such a valuation, each such distribution shall be
identified as a distribution based upon a current valuation of assets, and the
amount per share paid on the basis of such valuation shall be disclosed to the
shareholders concurrent with their receipt of the distribution.
Except as otherwise provided herein, the effect of a distribution under
this section is measured:
(i) In the case of distribution by purchase, redemption or other
acquisition of the corporation's shares, as of the earlier of:
(1) The date money or other property is transferred or debt
incurred by the corporation; or
(2) The date the shareholder ceases to be a shareholder with
respect to the acquired shares;
(ii) In the case of any other distribution of indebtedness, as of the
date the indebtedness is distributed;
(iii) In all other cases, as of:
(1) The date the distribution is authorized if the payment occurs
within one hundred twenty (120) days after the date of
authorization; or
(2) The date the payment is made if it occurs more than one
hundred twenty (120) days after the date of authorization.
The corporation's indebtedness to a shareholder incurred by reason of a
distribution made in accordance with this section is at parity with the
corporation's indebtedness to its general
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unsecured creditors, except to the extent subordinated by agreement.
Indebtedness of the corporation, including indebtedness issued as a
distribution, is not considered a liability for purposes of determinations under
this section if its terms provide that payment of principal and interest are
made only if and to the extent that payment of a distribution to shareholders
could then be made under this section. If the indebtedness is issued as a
distribution, each payment of principal or interest is treated as a
distribution, the effect of which is measured on the date the payment is
actually made.
Section 2. Share Dividends.
Shares may be issued pro rata and without consideration to the
corporation's shareholders or to the shareholders of one or more classes or
series. An issuance of shares under this subsection is a share dividend.
Shares of one class or series may not be issued as a share dividend in
respect of shares of another class or series unless so authorized by the
corporation's articles of incorporation, approved by a majority of the votes
entitled to be cast by the class or series to be issued, or there are no
outstanding shares of the class or series to be issued. If the Board of
Directors does not fix the record date for determining shareholders entitled to
a share dividend, it is the date the Board of Directors authorizes the share
dividend.
ARTICLE VII
CORPORATE SEAL
Section I. Corporate Seal.
If the Board of Directors elects for the corporation to have a corporate
seal, the Board of Directors must approve the form thereof.
ARTICLE VIII
EXECUTION OF DOCUMENTS
Section 1. Execution of Documents.
All contracts, instruments, agreements, bills payable, notes, checks,
drafts, warrants or other obligations of this corporation shall be made in the
name of the corporation and shall be signed by such officer or officers as the
Board of Directors may from time to time designate.
ARTICLE IX
INDEMNIFICATION
Section 1. Indemnification.
The corporation shall indemnify any officer or director of the
corporation, or any former officer or director of the corporation, to the
fullest extent permitted by law and as provided in the Articles of Incorporation
of the corporation.
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ARTICLE X
AMENDMENT
Section 1. Amendment.
These By-laws may be altered, amended or repealed by either the Board of
Directors or the shareholders, but the Board of Directors may not alter, amend
or repeal the By-laws generally or a particular By-law provision adopted by the
shareholders if the shareholders expressly provide that the By-laws generally or
a particular By-law provision is not subject to amendment, alteration or repeal
by the Board of Directors.
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