BYLAWS
OF
MODIS PROFESSIONAL SERVICES, INC.
(a Florida corporation)
(as amended 5/26/99)
Page
ARTICLE 1 Definitions...............................................1
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Section 1.1 Definitions.............................1
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ARTICLE 2 Offices...................................................1
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Section 2.1 Principal and Business Offices..........1
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Section 2.2 Registered Office.......................1
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ARTICLE 3 Shareholders..............................................2
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Section 3.1 Annual Meeting..........................2
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Section 3.2 Special Meetings........................2
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Section 3.3 Place of Meeting........................2
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Section 3.4 Notice of Meeting.......................2
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Section 3.5 Waiver of Notice........................3
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Section 3.6 Fixing of Record Date...................3
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Section 3.7 Shareholders' List for Meetings.........4
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Section 3.8 Quorum..................................5
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Section 3.9 Voting of Shares........................5
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Section 3.10 Vote Required..........................5
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Section 3.11 Conduct of Meeting.....................6
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Section 3.12 Inspection of Election.................6
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Section 3.13 Proxies................................6
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Section 3.14 Shareholder Nominations and Proposals..7
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Section 3.15 Action by Shareholders Without Meeting.7
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Section 3.16 Acceptance of Instruments
Showing Shareholder Action.............8
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ARTICLE 4 Board of Directors........................................8
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Section 4.1 General Powers and Number...............8
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Section 4.2 Qualifications..........................9
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Section 4.3 Term of Office..........................9
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Section 4.4 Removal.................................9
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Section 4.5 Resignation.............................9
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Section 4.6 Vacancies...............................9
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Section 4.7 Compensation............................9
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Section 4.8 Regular Meetings........................10
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Section 4.9 Special Meetings........................10
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Section 4.10 Notice.................................10
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Section 4.11 Waiver of Notice.......................10
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Section 4.12 Quorum and Voting......................10
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Section 4.13 Conduct of Meetings....................10
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Section 4.14 Committees.............................11
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Section 4.15 Action Without Meeting.................12
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ARTICLE 5 Officers..................................................12
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Section 5.1 Number..................................12
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Section 5.2 Election and Term of Office.............12
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Section 5.3 Removal.................................12
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Section 5.4 Resignation.............................12
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Section 5.5 Vacancies...............................13
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Section 5.6 President...............................13
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Section 5.7 Chief Operating Officer.................13
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Section 5.8 Vice Presidents.........................13
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Section 5.9 Secretary...............................13
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Section 5.10 Treasurer..............................14
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Section 5.11 Assistant Secretaries and
Assistant Treasurers....................14
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Section 5.12 Other Assistants and Acting Officers...14
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Section 5.13 Salaries...............................14
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ARTICLE 6 Contracts, Checks and Deposits; Special Corporate Acts....15
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Section 6.1 Contracts...............................15
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Section 6.2 Checks, Drafts, etc.....................15
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Section 6.3 Deposits................................15
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Section 6.4 Voting of Securities Owned
by Corporation..........................15
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ARTICLE 7 Certificates for Shares; Transfer of Shares...............16
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Section 7.1 Consideration for Shares................16
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Section 7.2 Certificates for Shares.................16
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Section 7.3 Transfer of Shares......................16
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Section 7.4 Restrictions on Transfer................17
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Section 7.5 Lost, Destroyed, or Stolen Certificates.17
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Section 7.6 Stock Regulations.......................17
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ARTICLE 8 Seal......................................................17
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Section 8.1 Seal....................................17
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ARTICLE 9 Books and Records.........................................17
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Section 9.1 Books and Records........................17
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Section 9.2 Shareholders' Inspection Rights.........18
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Section 9.3 Distribution of Financial Information...18
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Section 9.4 Other Reports...........................18
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ARTICLE 10 Indemnification............................................18
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Section 10.1 Provision of Indemnification............18
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ARTICLE 11 Amendments................................................19
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Section 11.1 Power to Amend..........................19
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ARTICLE 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; and
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 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.
ARTICLE 3
Shareholders
Section 3.1 Annual Meeting. The annual meeting of the shareholders shall be
held on a dated 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.
Call by Directors or President. Special meetings of shareholders, for any
purpose or purposes, may be called by the Board of Directors, the Chairman
of the Board (if any) or the President.
Call by Shareholders. The corporation shall call a special meeting of
shareholders in the event that the holders of at least forty (40%) 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.
(1) 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 record
books of the corporation, with postage thereon prepaid.
(2) 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.
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.
(1) 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.
(2) 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.
(1) 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.
(2) 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.
(3) 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. 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.
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 date before
the first notice with respect thereto is delivered to shareholders.
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.
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.
(1) 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 is available
for inspection pursuant to this Section. 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.
(2) 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.
(3) 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.
(4) 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.
(1) 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. If the corporation has
only one class of stock outstanding, such class shall constitute a separate
voting group for purposes of this Section. 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.
(2) 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.
(3) 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.
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 votes cast within the voting group favoring the action exceed the votes
cast opposing the action, unless the Act requires a greater number of
affirmative votes.
Election of Directors. 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 as 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 if there be none, or in his or her absence, the President, and in his or her
absence, a Vice President in the order provided under the Section of these
bylaws entitled "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 Inspection 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.
Section 3.13. Proxies.
(1) 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.
(2) 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 Shareholder Nominations and Proposals. Any shareholder
nomination for director or proposal for action at a forthcoming shareholder
meeting must be delivered to the corporation no later than the deadline for
submitting shareholder proposals pursuant to Securities Exchange Commission
Regulations Section 240.14a-8. The presiding officer at any shareholder meeting
shall not be required to recognize any nomination or proposal which did not
comply with such deadline.
Section 3.15 Action by Shareholders Without Meeting.
(1) 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.
(2) 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.
(3) 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 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.
(4) 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 3.16 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:
(1) The shareholder is an entity and the name signed purports to be
that of an officer or agent of the entity;
(2) The name signed purports to be that of an 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;
(3) 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;
(4) 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
(5) Two or more persons are the shareholder as covenants 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.
(6) The corporation may reject a vote, consent, waiver, or proxy
appointment if the Secretary or other officer of agent of the corporation
who is authorized to tabulate votes, 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.
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 seven (7) directors initially. The number of directors
may be increased or decreased from time to time by vote of a majority of the
entire Board of Directors, but shall never be less than four nor more than
eleven.
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 director's resignation is effective when the notice is delivered
unless the notice specifies a later effective date.
Section 4.6 Vacancies.
(1) 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.
(2) 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.
(3) 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 a 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 the 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 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 notice
other than such resolution.
Section 4.9 Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board (if any), the President or one-third
of the members 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. 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 described 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.
(1) Presiding Officer. The Board of Directors may elect from among its
members a Chairman of the Board of Directors, who shall preside at meetings
of the Board of Directors. The Chairman, and if there be none, or in his or
her absence, the President, and in his or her absence, a Vice President in
the order provided under the Section of these bylaws titled "Vice
Presidents", and in their 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.
(2) 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.
(3) 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 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.
(4) 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. 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 (which may include, by way
of example and not as a limitation, a Compensation Committee, an Audit Committee
and a Nominating Committee) 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:
(1) approve or recommend to shareholders actions or proposals required
by the Act to be approved by shareholders;
(2) fill vacancies on the Board of Directors or any committee thereof;
(3) adopt, amend, or repeal these bylaws;
(4) authorize or approve the reacquisition of shares unless pursuant
to a general formula or method specified by the Board of Directors; or
(5) 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 which govern meetings, notice and
waiver or notice, and quorum and voting requirements of the Board of
Directors apply to committees and their members as well.
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 may 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 may be a
President, a Chief Operating Officer, the number of Vice Presidents, if any, as
authorized from time to time by the Board of Directors, a Secretary and a
Treasurer, 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.
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.
Section 5.6 President. The President 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 and
affairs of the corporation. The President shall, when present, preside at all
meetings of the shareholders and, if no Chairman of the Board has been elected,
shall preside at all meetings of the Board of Directors. The President 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 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, 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 or her 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
from time to time.
Section 5.7 Chief Operating Officer. The Chief Operating Officer shall: (a)
be responsible for supervising and controlling the daily operations of the
corporation; and (b) in general perform all duties incident to the office of
Chief Operating officer and have such other duties and exercise such authority
as from time to time may be delegated or assigned by the President or by the
Board of Directors.
Section 5.8 Vice Presidents. In the absence of the President or in the
event of the President's death, inability or refusal to act, or in the event for
any reason it shall be impracticable for the President to act personally, the
Vice President, if any (or in the event there be more than one Vice President,
the Vice Presidents in the order designated by the Board of Directors, or in the
absence of any designation, then in the order of their election), shall perform
the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. 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 President 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 President.
Section 5.9 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 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 President or by the Board of Directors.
Section 5.10 Treasurer. The Treasurer shall: (a) 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 monies due and
payable to the corporation from any source whatsoever, and deposit all such
monies 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
Treasurer 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. If required by the Board of Directors, the Treasurer shall give a
bond for the faithful discharge of his or her duties in such sum and with such
surety or sureties as the Board of Directors shall determine.
Section 5.11 Assistant Secretaries and Assistant Treasurers. There shall be
such number of Assistant Secretaries and Assistant Treasurers as the Board of
Directors may from time to time authorize. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine. The Assistant Secretaries and Assistant Treasurers,
in general, shall perform such duties and have such authority as shall from time
to time be delegated or assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 5.12 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 5.13 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 attest and affix the corporate
seal, if any, thereto. 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 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 6.3 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 6.4 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 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 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 this 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 share 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 or
these bylaws 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 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 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
Director 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.
(1) 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.
(2) The corporation shall maintain accurate accounting records.
(3) 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.
(4) 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 or in which such
Director is deposed or called to testify as a witness 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 its 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 term "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 (1997). The provisions of this Article are intended solely for the
benefit of the indemnified parties described herein, their heirs and personal
representatives and shall 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 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.