EXHIBIT 3.4
BY-LAWS OF VHS NETWORK, INC.
(EFFECTIVE AS OF DECEMBER 18, 1995)
TABLE OF CONTENTS
ARTICLE I - OFFICES....................................................................................-1-
Section 1. Principal Office.................................................................-1-
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Section 2. Other Offices....................................................................-1-
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ARTICLE II - STOCKHOLDERS.....................................................................-1-
Section 1. Annual Meeting..................................................................-1-
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Section 2. Special Meetings................................................................-1-
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Section 3. Place of Meeting................................................................-1-
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Section 4. Notice of Meeting...............................................................-1-
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Section 5. Notice of Adjourned Meeting.....................................................-2-
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Section 6. Waiver of Call and Notice of Meeting............................................-2-
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Section 7. Quorum..........................................................................-2-
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Section 8. Adjournment.....................................................................-2-
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Section 9. Voting on Matters Other than Election of Directors..............................-3-
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Section 10. Voting for Directors.............................................................-3-
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Section 11. Voting Lists.....................................................................-3-
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Section 12. Voting of Shares.................................................................-3-
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Section 13. Proxies..........................................................................-3-
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Section 14. Informal Action by Stockholders..................................................-4-
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Section 15. Inspectors.......................................................................-4-
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ARTICLE III - BOARD OF DIRECTORS ............................................................-4-
Section 1. General Powers...................................................................-4-
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Section 2. Number, Election, Tenure and Qualifications......................................-5-
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Section 3. Annual Meeting...................................................................-5-
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Section 4. Regular Meetings.................................................................-5-
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Section 5. Special Meetings.................................................................-5-
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Section 6. Notice...........................................................................-5-
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Section 7. Quorum...........................................................................-6-
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Section 8. Adjournment; Quorum for Adjourned Meeting........................................-6-
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Section 9. Manner of Acting.................................................................-6-
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Section 10. Removal..........................................................................-6-
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Section 11. Vacancies........................................................................-6-
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Section 12. Compensation.....................................................................-6-
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Section 13. Presumption of Assent............................................................-6-
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Section 14. Informal Action by Board.........................................................-6-
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Section 15. Meeting by Telephone, Etc........................................................-7-
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ARTICLE IV - OFFICERS.........................................................................-7-
BY-LAWS OF VHS NETWORK, INC.
(EFFECTIVE AS OF DECEMBER 18, 1995)
TABLE OF CONTENTS
Section 1. Number............................................................................-7-
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Section 2. Appointment and Term of Office....................................................-7-
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Section 3. Resignation.......................................................................-7-
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Section 4. Removal...........................................................................-7-
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Section 5. Vacancies.........................................................................-7-
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Section 6. Duties of Officers................................................................-8-
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Section 7. Salaries..........................................................................-8-
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Section 8. Delegation of Duties..............................................................-8-
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ARTICLE V - EXECUTIVE AND OTHER COMMITTEES....................................................-8-
Section 1. Creation of Committees...........................................................-8-
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Section 2. Executive Committee..............................................................-8-
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Section 3. Other Committees.................................................................-9-
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Section 4. Removal or Dissolution...........................................................-9-
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Section 5. Vacancies on Committees..........................................................-9-
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Section 6. Meetings of Committees...........................................................-9-
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Section 7. Absence of Committee Members.....................................................-9-
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Section 8. Quorum of Committees.............................................................-9-
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Section 9. Manner of Acting of Committees...................................................-9-
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Section 10. Minutes of Committees............................................................-9-
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Section 11. Compensation....................................................................-10-
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Section 12. Informal Action.................................................................-10-
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS.......................................-10-
Section 1. General..........................................................................-10-
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Section 2. Actions by or in the Right of the Corporation....................................-10-
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Section 3. Determination that Indemnification Is Proper.....................................-11-
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Section 4. Evaluation and Authorization.....................................................-12-
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Section 5. Prepayment of Expenses...........................................................-12-
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Section 6. Obligation to Indemnify..........................................................-12-
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Section 7. Nonexclusivity and Limitations...................................................-12-
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Section 8. Continuation of Indemnification Right............................................-12-
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Section 9. Insurance........................................................................-13-
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ARTICLE VII - INTERESTED PARTIES.............................................................-13-
Section 1. General..........................................................................-13-
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Section 2. Determination of Quorum..........................................................-13-
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Section 3. Approval by Stockholders.........................................................-14-
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ARTICLE VIII - CERTIFICATES OF STOCK.........................................................-14-
Section 1. Certificates for Shares..........................................................-14-
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Section 2. Signatures of Past Officers......................................................-15-
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Section 3. Transfer Agents and Registrars...................................................-15-
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Section 4. Transfer of Shares...............................................................-15-
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Section 5. Lost Certificates................................................................-15-
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BY-LAWS OF VHS NETWORK, INC.
(EFFECTIVE AS OF DECEMBER 18, 1995)
TABLE OF CONTENTS
ARTICLE IX - RECORD DATE.....................................................................-15-
Section 1. Record Date for Stockholder Actions..............................................-15-
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Section 2. Record Date for Dividend and Other Distributions.................................-16-
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ARTICLE X - DIVIDENDS........................................................................-16-
ARTICLE XI - FISCAL YEAR.....................................................................-16-
ARTICLE XII - SEAL...........................................................................-16-
ARTICLE XIII - STOCK IN OTHER CORPORATIONS...................................................-16-
ARTICLE XIV - AMENDMENTS.....................................................................-17-
ARTICLE XV - EMERGENCY BY-LAWS...............................................................-17-
Section 1. Scope of Emergency By-laws.......................................................-17-
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Section 2. Call and Notice of Meeting.......................................................-17-
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Section 3. Quorum and Voting................................................................-17-
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Section 4. Appointment of Temporary Directors...............................................-17-
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Section 5. Modification of Lines of Succession..............................................-18-
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Section 6. Change of Principal Office.......................................................-18-
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Section 7. Limitation of Liability..........................................................-18-
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Section 8. Amendment or Repeal..............................................................-18-
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ARTICLE XVI - PRECEDENCE OF LAW AND
ARTICLES OF INCORPORATION....................................................................-18-
BY-LAWS OF VHS NETWORK, INC.
(Effective as of December 18, 1995)
ARTICLE I - OFFICES
Section 1. Principal Office. The principal office of VHS NETWORK, INC.
(the "Corporation") shall be 1428 Brickell Avenue, 8th Floor, Miami, Florida
33131 or such place within or without the State of Florida as the Board of
Directors of the Corporation (the "Board of Directors" or the "Board") shall
from time to time determine.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Florida as the Board of
Directors or the officers of the Corporation acting within their authority may
from time to time determine or the business of the Corporation may require.
ARTICLE II - STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders shall
be held between January 1 and December 31, inclusive, in each year for the
purpose of electing directors and for the transaction of such other proper
business as may come before the meeting. The exact date of the meeting shall be
established by the Board of Directors from time to time.
Section 2. Special Meetings. Special meetings of the stockholders may
be called, for any purpose or purposes, by the Board of Directors or the
President. Special meetings of the stockholders shall be called by the
President, the President or the Secretary if the holders of not less than ten
(10) percent of all the votes entitled to be cast on any issue proposed to be
considered at such special meeting sign, date and deliver to the Secretary one
or more written demands for a special meeting, describing the purpose(s) for
which it is to be held. Special meetings of the stockholders of the Corporation
may not be called by any other person or persons. Notice and call of any such
special meeting shall state the purpose or purposes of the proposed meeting, and
business transacted at any special meeting of the stockholders shall be limited
to the purposes stated in the notice thereof.
Section 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Florida, as the place of meeting
for any annual or special meeting of the stockholders. If no designation is
made, the place of meeting shall be the principal office of the Corporation.
Section 4. Notice of Meeting. Written notice stating the place, day and
hour of an annual or special meeting and, in the case of a special meeting, the
purpose or purposes for which it is called shall be given no fewer than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting, except that no notice of a meeting need be
given to any stockholders for which notice is not required to be given under
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applicable law. Notice may be delivered personally, via United States mail,
facsimile or other electronic transmission, or by private mail carriers handling
nationwide mail services, by or at the direction of the President, the
Secretary, the Board of Directors, or the person(s) calling the meeting. If
mailed via United States mail, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the stockholder at the
stockholder's address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. If the notice is mailed at least
thirty (30) days before the date of the meeting, the mailing may be by a class
of United States mail other than first class.
Section 5. Notice of Adjourned Meeting. If a stockholders' meeting is
adjourned to a different date, time or place, notice need not be given of the
new date, time or place if the new date, time or place is announced at the
meeting before an adjournment is taken; and any business may be transacted at
the adjourned meeting that might have been transacted on the original date of
the meeting. If, however, a new record date for the adjourned meeting is or must
be fixed under law, notice of the adjourned meeting must be given to persons who
are stockholders as of the new record date and who are otherwise entitled to
notice of such meeting.
Section 6. Waiver of Call and Notice of Meeting. Call and notice of any
stockholders' meeting may be waived by any stockholder before or after the date
and time stated in the notice. Such waiver must be in writing signed by the
stockholder and delivered to the Corporation. Neither the business to be
transacted at nor the purpose of any meeting need be specified in such waiver. A
stockholder's attendance at a meeting (a) waives such stockholder's ability to
object to lack of notice or defective notice of the meeting, unless the
stockholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) waives such stockholder's ability
to object to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
stockholder objects to considering the matter when it is presented.
Section 7. Quorum. Except as otherwise provided in these By-laws or in
the Articles of Incorporation of the Corporation, a majority (based on voting)
of the outstanding shares of the Corporation entitled to vote, represented in
person or by proxy, shall constitute a quorum at any meeting of the
stockholders. Once a share is represented for any purpose at a meeting, it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting, unless a new record date is or must be set for that
adjourned meeting; and the withdrawal of stockholders after a quorum has been
established at a meeting shall not affect the validity of any action taken at
the meeting or any adjournment thereof.
Section 8. Adjournment; Quorum for Adjourned Meeting. If less than a
majority (based on voting) of the outstanding shares are represented at a
meeting, a majority (based on voting) of the shares so represented may adjourn
the meeting from time to time without further notice. At such adjourned meeting
at which a quorum shall be present, any business may be transacted which might
have been transacted at the meeting as originally noticed.
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Section 9. Voting on Matters Other than Election of Directors. At any
meeting at which a quorum is present, action on any matter other than the
election of directors shall be approved if the votes cast by the holders of
shares represented at the meeting and entitled to vote on the subject matter
favoring the action exceed the votes cast opposing the action, unless a greater
number of affirmative votes or voting by classes is required by law, the
Articles of Incorporation of the Corporation or these By-laws.
Section 10. Voting for Directors. Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote at a meeting at which
a quorum is present.
Section 11. Voting Lists. At least ten (10) days prior to each meeting
of stockholders, the officer or agent having charge of the stock transfer books
for shares of the Corporation shall make a complete list of the stockholders
entitled to vote at such meeting, or any adjournment thereof, with the address
and the number, class and series (if any) of shares held by each. The list shall
be subject to inspection by any stockholder during normal business hours for at
least ten (10) days prior to the meeting. The list also shall be available at
the meeting and shall be subject to inspection by any stockholder at any time
during the meeting or its adjournment. The list shall be prima facie evidence as
to who are the stockholders entitled to examine such list or the transfer books
and to vote at any meeting of the stockholders. If the requirements of this
Section have not been substantially complied with, the meeting shall be
adjourned on the demand of any stockholder(in person or by proxy) until there
has been substantial compliance with the requirements. If no demand for
adjournment is made, failure to comply with the requirements of this Section
does not affect the validity of any action taken at the meeting.
Section 12. Voting of Shares. Except as otherwise provided in the
Articles of Incorporation of the Corporation, each stockholder entitled to vote
shall be entitled at every meeting of the stockholders to one vote in person or
by proxy on each matter for each share of voting stock held by such stockholder.
Such right to vote shall be subject to the right of the Board of Directors to
fix a record date for voting stockholders as hereinafter provided. Treasury
shares, and shares of stock of the Corporation owned directly or indirectly by
another corporation the majority of the voting stock of which is owned or
controlled by the Corporation, shall not be voted at any meeting and shall not
be counted in determining the total number of outstanding shares.
Section 13. Proxies. At all meetings of stockholders, a stockholder may
vote by proxy, executed in writing and delivered to the Corporation in the
original or as a true and correct copy of the original or by the stockholder's
duly authorized attorney-in-fact. No proxy shall be valid after eleven (11)
months from its date, unless the proxy provides for a longer period. Each proxy
shall be filed with the Secretary before or at the time of the meeting. A proxy
may be revoked at the pleasure of the record owner of the shares to which it
relates, unless the proxy provides otherwise. In the event that a proxy shall
designate two or more persons to act as proxies, a majority of such persons
present at the meeting, or, if only one is present, that one, shall have all of
the powers conferred by the proxy upon all the persons so designated, unless the
instrument shall provide otherwise.
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Section 14. Informal Action by Stockholders. Unless otherwise provided
in the Articles of Incorporation of the Corporation, any action required or
permitted to be taken at a meeting of the stockholders may be taken by means of
one or more written consents that satisfy the requirements set forth below. In
such event, no meeting, prior notice or formal vote shall be required. To be
effective, a written consent (which may be in one or more counterparts) shall
set forth the action taken and shall be signed by stockholders holding shares
representing not less than the minimum number of votes of each voting group
entitled to vote thereon that would be necessary to authorize or take such
action at a meeting at which all voting groups and shares entitled to vote
thereon were present and voted. No written consent shall be effective unless,
within sixty (60) days of the date of the earliest dated consent delivered to
the Secretary, written consent signed by the number of stockholders required to
take action is delivered to the Secretary. If authorization of an action is
obtained by one or more written consents but less than all stockholders so
consent, then within ten (10) days after obtaining the authorization of such
action by written consents, notice must be given to each stockholder who did not
consent in writing and to each stockholder who is not entitled to vote on the
action. The notice shall fairly summarize the material features of the
authorized action and, if the action be such for which dissenters' rights are
provided under the Florida Business Corporation Act, the notice shall contain a
clear statement of the right of stockholders dissenting therefrom to be paid the
fair value of their shares upon compliance with the provisions of the Florida
Business Corporation Act regarding the rights of dissenting stockholders.
Section 15. Inspectors. For each meeting of the stockholders, the Board
of Directors or the President may appoint two inspectors to supervise the
voting. If inspectors are so appointed, all questions respecting the
qualification of any vote, the validity of any proxy and the acceptance or
rejection of any vote shall be decided by such inspectors. Before acting at any
meeting, the inspectors shall take an oath to execute their duties with strict
impartiality and according to the best of their ability. If any inspector shall
fail to be present or shall decline to act, the President shall appoint another
inspector to act in his or her place. In case of a tie vote by the inspectors on
any question, the presiding officer shall decide the issue.
ARTICLE III - BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by its Board of Directors, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by law, the
articles of Incorporation of the Corporation or these By-laws directed or
required to be exercised or done only by the stockholders.
Section 2. Number, Election, Tenure and Qualifications. The number of
directors of the Corporation shall be not less than one (1) nor more than seven
(7). The exact number of directors shall be fixed by resolution adopted by a
vote of a majority of the then authorized number of directors; provided that no
decrease in the number of directors shall have the effect of shortening the term
of any then incumbent director. At each annual meeting of stockholders, the
stockholders shall elect directors to hold office until the next succeeding
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annual meeting. Each director shall hold office until his or her term of office
expires and until such director's successor is elected and qualifies, unless
such director sooner dies, resigns or is removed by the stockholders at any
annual or special meeting. It shall not be necessary for directors to be
stockholders or residents of the State of Florida. All directors shall be
natural persons who are 18 years of age or older.
Section 3. Annual Meeting. Promptly after each annual meeting of
stockholders, the Board of Directors shall hold its annual meeting for the
purpose of the election of officers and the transaction of such other business
as may come before the meeting. If such meeting is held at the same place as and
immediately following such annual meeting of stockholders and if a majority of
the directors are present at such place and time, no prior notice of such
meeting shall be required to be given to the directors.
Section 4. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall be determined
from time to time by the Board of Directors.
Section 5. Special Meetings. Special meetings of the Board of Directors
may be called by the President or any two directors. The person or persons
authorized to call special meetings of the Board of directors may fix the place
for holding any special meetings of the Board of directors called by such person
or persons. If no such designation is made, the place of meeting shall be the
principal office of the Corporation.
Section 6. Notice. Whenever notice of a meeting is required, written
notice stating the place, day and hour of the meeting shall be delivered at
least two (2) days prior thereto to each director, either personally, or by
first-class United States mail, facsimile or other form of electronic
communication, or by private mail carriers handling nationwide mail services, to
the director's business address. If notice is given by first-class United States
mail, such notice shall be deemed to be delivered five (5) days after deposited
in the United States mail so addressed with postage thereon prepaid or when
received, if such date is earlier. If notice is given by facsimile transmission
or other form of electronic communication or by private mail carriers handling
nationwide mail services, such notice shall be deemed to be delivered when
received by the director. Any director may waive notice of any meeting, either
before, at or after such meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened and so states at
the beginning of the meeting or promptly upon arrival at the meeting.
Section 7. Quorum. A majority of the total number of directors as
determined from time to time to comprise the Board of Directors shall constitute
a quorum.
Section 8. Adjournment; Quorum for Adjourned Meeting. If less than a
majority of the total number of directors are present at a meeting, a majority
of the directors so present may adjourn the meeting from time to time without
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further notice. At any adjourned meeting at which a quorum shall be present, any
business may be transacted that might have been transacted at the meeting as
originally noticed.
Section 9. Manner of Acting. If a quorum is present when a vote is
taken, the act of a majority of the directors present at the meeting shall be
the act of the Board of Directors unless otherwise provided in the Articles of
Incorporation of the Corporation.
Section 10. Removal. Any director may be removed by the stockholders,
with or without cause, at any meeting of the stockholders called expressly for
that purpose. Any such removal shall be without prejudice to the contract
rights, if any, of the person removed.
Section 11. Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by the
stockholders, unless otherwise provided in the Articles of Incorporation of the
Corporation. The term of a director elected to fill a vacancy shall expire at
the next following annual meeting of stockholders, and the person elected shall
hold office until such time and until such director's successor is elected and
qualifies, unless such director sooner dies, resigns or is removed by the
stockholders at any annual or special meeting.
Section 12. Compensation. By resolution of the Board of Directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors, and may be paid a fixed sum for attendance at each
meeting of the Board of Directors, a stated salary as directors and/or such
other reasonable compensation as may be determined by the Board from time to
time. No payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 13. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
such director objects at the beginning of the meeting (or promptly upon his or
her arrival) to the holding of the meeting or the transacting of specified
business at the meeting or such director votes against such action or abstains
from voting in respect of such matter.
Section 14. Informal Action by Board. Any action required or permitted
to be taken by any provisions of law, the Articles of Incorporation of the
Corporation or these By-laws at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if each and every member of the
Board or of such committee, as the case may be, signs a written consent thereto
and such written consent is filed in the minutes of the proceedings of the Board
or such committee, as the case may be. Action taken under this section is
effective when the last director signs the consent, unless the consent specifies
a different effective date, in which case it is effective on the date so
specified.
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Section 15. Meeting by Telephone, Etc. Directors or the members of any
committee thereof shall be deemed present at a meeting of the Board of Directors
or of any such committee, as the case may be, if the meeting is conducted using
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same time.
ARTICLE IV - OFFICERS
Section 1. Number. The officers of the Corporation shall consist of a
President, a Secretary and a Treasurer, each of whom shall be appointed by the
Board of Directors. The Board of Directors may also appoint one or more vice
presidents, one or more assistant secretaries and assistant treasurers and such
other officers as the Board of Directors shall deem appropriate. The same
individual may simultaneously hold more than one office in the Corporation.
Section 2. Appointment and Term of Office. The officers of the
Corporation shall be appointed annually by the Board of Directors at its annual
meeting. If the appointment of officers shall not be made at such meeting, such
appointment shall be made as soon thereafter as is convenient. Each officer
shall hold office until such officer's successor is appointed and qualifies,
unless such officer sooner dies, resigns or is removed by the Board. The
appointment of an officer does not itself create contract rights. The failure to
elect a President, a Secretary or a Treasurer shall not affect the existence of
the Corporation.
Section 3. Resignation. An officer may resign at any time by delivering
notice to the Corporation. A resignation shall be effective when the notice is
delivered unless the notice specifies a later effective date. An officer's
resignation shall not affect the Corporation's contract rights, if any, with the
officer.
Section 4. Removal. The Board of Directors may remove any officer at
any time with or without cause. An officer's removal shall not affect the
officer's contract rights, if any, with the Corporation.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the Board
of Directors for the unexpired portion of the term.
Section 6. Duties of Officers. (a) The President of the Corporation
shall be the chief executive officer of the Corporation and shall, subject to
the direction of the Board, have general charge of the business and affairs of
the Corporation and shall preside at all meetings of the Board of Directors and
of the stockholders; (b) the Secretary shall be responsible for preparing
minutes of the directors' and stockholders' meetings and for authenticating
records of the Corporation; (c) the Treasurer shall (i) have charge and custody
of and be responsible for all funds of the Corporation and (ii) receive and give
receipts for monies due and payable to the Corporation from any source
whatsoever, and deposit monies in the name of the Corporation in the banks,
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trust companies or other depositories as shall be selected by the Corporation;
and (d) subject to the foregoing, the officers of the Corporation shall have
such powers and duties as ordinarily pertain to their respective offices and
such additional powers and duties specifically conferred by law, the Articles of
Incorporation of the Corporation and these Bylaws, or as may be assigned to them
from time to time by the Board of Directors or an officer authorized by the
Board of Directors to prescribe the duties of other officers.
Section 7. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving a salary by reason of the fact that the officer is also a director of
the Corporation.
Section 8. Delegation of Duties. In the absence or disability of any
officer of the Corporation, or for any other reason deemed sufficient by the
Board of Directors, the Board may delegate the powers or duties of such officer
to any other officer or to any other director for the time being.
ARTICLE V - EXECUTIVE AND OTHER COMMITTEES
Section 1. Creation of Committees.The Board of Directors may designate
an Executive Committee and one or more other committees. Each committee so
designated shall consist of two (2) or more of the directors of the Corporation.
Section 2. Executive Committee. The Executive Committee, if there shall
be one, shall consult with and advise the officers of the Corporation in the
management of its business. It shall have, and may exercise, except to the
extent otherwise provided in the resolution of the Board of Directors creating
such Executive Committee, such powers of the Board of Directors as can be
lawfully delegated by the Board. Included solely for information purposes, the
following is a list of the actions that, under Florida law in effect at the time
of the adoption of these By-laws, may not be delegated to a committee, but the
list shall be deemed automatically revised without further action by the Board
of Directors or the stockholders of this Corporation upon and to the extent of
any amendment to such law: (a) approve or recommend to stockholders actions or
proposals required by law to be approved by stockholders; (b) fill vacancies on
the Board of Directors or any committee of the Board; (c) adopt, amend or repeal
these By-laws; (d) authorize or approve the reacquisition of shares unless
pursuant to a general formula or method specified by the Board of Directors; or
(e) authorize or approve the issuance or sale of shares, or any contract to sell
shares, or designate the terms of a series or class of shares.
Section 3. Other Committees. Such other committees, to the extent
provided in the resolution or resolutions creating them, shall have such
functions and may exercise such powers of the Board of Directors as can be
lawfully delegated by the Board. Notwithstanding the foregoing, no committee
shall have the authority to take any action listed in subsections (a) through
(e), inclusive, of Section 2 of this Article V.
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Section 4. Removal or Dissolution. Any Committee of the Board of
directors may be dissolved by the Board at any meeting; and any member of such
committee may be removed by the Board of Directors with or without cause. Such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
Section 5. Vacancies on Committees. Vacancies on any committee of the
Board of Directors shall be filled by the Board of Directors at any meeting.
Section 6. Meetings of Committees. Regular meetings of any committee of
the Board of Directors may be held without notice at such time and at such place
as shall from time to time be determined by such committee. Special meetings of
any such committee may be called by any member thereof upon two (2) days notice
of the date, time and place of the meeting given to each of the other members of
such committee, or on such shorter notice as may be agreed to in writing by each
of the other members of such committee. Notice shall be given either personally
or in the manner provided in Section 6 of Article III of these By-laws
(pertaining to notice for directors' meetings).
Section 7. Absence of Committee Members. The Board of Directors may
designate one or more directors as alternate members of any committee of the
Board of Directors, who may replace at any meeting of such committee any member
not able to attend.
Section 8. Quorum of Committees. At all meetings of committees of the
Board of Directors, a majority of the total number of members of the committee
as determined from time to time shall constitute a quorum for the transaction of
business.
Section 9. Manner of Acting of Committees. If a quorum is present when
a vote is taken, the act of a majority of the members of any committee of the
Board of Directors present at the meeting shall be the act of such committee.
Section 10.Minutes of Committees. Each committee of the Board of
directors shall keep regular minutes of its proceedings and report the same to
the Board of Directors when requested.
Section 11.Compensation. Members of any committee of the Board of
Directors may be paid compensation in accordance with the provisions of Section
12 of Article III of these By-laws (pertaining to compensation of directors).
Section 12.Informal Action. Any committee of the Board of Directors may
take such informal action and hold such informal meetings as allowed by the
provisions of Sections 14 and 15 of Article III of these By-laws.
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ARTICLE VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. General.
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(a) To the fullest extent permitted by law and consistent with the
principles set forth in Section 1(c) below, the Corporation shall indemnify any
person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or other type of proceeding (other
than an action by or in the right of the Corporation), whether civil, criminal,
administrative, investigative or otherwise, and whether formal or informal, by
reason of the fact that such person is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, trustee or fiduciary of another corporation, partnership,
joint venture, trust (including without limitation an employee benefit trust),or
other enterprise.
(b) To the fullest extent permitted by law and consistent with the
principles set forth in Section 1(c) below, the Corporation shall be entitled
but shall not be obligated to indemnify any person who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (other than an action by or in the right of the
Corporation), whether civil, criminal, administrative, investigative or
otherwise, and whether formal or informal, by reason of the fact that such
person is or was an employee or agent of the Corporation or is or was serving at
the request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
(c) Any person for whom indemnification is required or authorized under
Section 1(a) or Section 1(b) above shall be indemnified against all liabilities,
judgments, amounts paid in settlement, penalties, fines (including an excise tax
assessed with respect to any employee benefit plan) and expenses (including
attorneys' fees, paralegals' fees and court costs) actually and reasonably
incurred in connection with any such action, suit or other proceeding, including
any appeal thereof. Indemnification shall be available only if the person to be
indemnified acted in good faith and in a manner such person reasonably believed
to be in, or not opposed to, the best interests of the Corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such person's conduct was unlawful. The termination of any such action, suit or
other proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner that such person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
Section 2. Actions by or in the Right of the Corporation.
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(a) To the fullest extent permitted by law and consistent with the
principles set forth in Section 2(c) below, the Corporation shall indemnify any
person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or other type of proceeding (as
further described in Section 1 of this Article VI) by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation or is or was serving
at the request of the Corporation as a director, officer, trustee or fiduciary
of another corporation, partnership, joint venture, trust or other enterprise.
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(b) To the fullest extent permitted by law and consistent with the
principles set forth in Section 2(c) below, the Corporation shall be entitled
but shall not be obligated to indemnify any person who is or was a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or other type of proceeding (as further described in Section 1 of this
Article VI) by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was an employee or agent of
the Corporation or is or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
(c) Any person for whom indemnification is required or authorized under
Section 2(a) or Section 2(b) above shall be indemnified against expenses
(including attorneys' fees, paralegals' fees and court costs) and amounts paid
in settlement not exceeding, in the judgment of the Board of directors, the
estimated expenses of litigating the action, suit or other proceeding to
conclusion, that are actually and reasonably incurred in connection with the
defense or settlement of such action, suit or other proceeding, including any
appeal thereof. Indemnification shall be available only if the person to be
indemnified acted in good faith and in a manner such person reasonably believed
to be in, or not opposed to, the best interests of the Corporation.
Notwithstanding the foregoing, no indemnification shall be made under this
Section 2 in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable unless, and only to the extent that, the court
in which such action, suit or other proceeding was brought, or any other court
of competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such expenses
that such court shall deem proper.
Section 3. Determination that Indemnification Is Proper.
Indemnification pursuant to Section 1 or Section 2 of this Article VI, unless
made under the provisions of Section 6 of this Article VI or unless otherwise
made pursuant to a determination by a court, shall be made by the Corporation
only as authorized in the specific case upon a determination that the
indemnification is proper in the circumstances because the indemnified person
has met the applicable standard of conduct set forth in Section 1 or Section 2
of this Article VI. Such determination shall be made under one of the following
procedures: (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to the action, suit or other
proceeding to which the indemnification relates; (b) if such a quorum is not
obtainable or, even if obtainable, by majority vote of a committee duly
designated by the Board of Directors (the designation being one in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to such action, suit or other proceeding; (c)
by independent legal counsel (i) selected by the Board of directors in
accordance with the requirements of subsection (a) or by a committee designated
under subsection (b) or (ii) if a quorum of the directors cannot be obtained and
a committee cannot be designated, selected by majority vote of the full Board of
Directors (the vote being one in which directors who are parties may
participate); or (d) by the stockholders by a majority vote of a quorum
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consisting of stockholders who were not parties to such action, suit or other
proceeding or, if no such quorum is obtainable, by a majority vote of
stockholders who were not parties to such action, suit or other proceeding.
Section 4. Evaluation and Authorization. Evaluation of the
reasonableness of expenses and authorization of indemnification shall be made in
the same manner as is prescribed in Section 3 of this Article VI for the
determination that indemnification is permissible; provided, however, that if
the determination as to whether indemnification is permissible is made by
independent legal counsel, the persons who selected such independent legal
counsel shall be responsible for evaluating the reasonableness of expenses and
may authorize indemnification.
Section 5. Prepayment of Expenses. Expenses (including attorneys' fees,
paralegals' fees and court costs) incurred by a director or officer in defending
a civil or criminal action, suit or other proceeding referred to in Section 1 or
Section 2 of this Article VI shall be paid by the Corporation in advance of the
final disposition thereof, but only upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if such person is
ultimately found not to be entitled to indemnification by the Corporation
pursuant to this Article VI.
Section 6. Obligation to Indemnify. To the extent that a director or
officer has been successful on the merits or otherwise in defense of any action,
suit or other proceeding referred to in Section 1 or Section 2 of this Article
VI, or in the defense of any claim, issue or matter therein, such person shall,
upon application, be indemnified against expenses (including attorneys' fees,
paralegals' fees and court costs) actually and reasonable incurred by such
person in connection therewith.
Section 7. Nonexclusivity and Limitations. The indemnification and
advancement of expenses provided pursuant to this Article VI shall not be deemed
exclusive of any other rights to which a person may be entitled under any law,
By-law, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity and as to action
in any other capacity while holding office with the Corporation. Such
indemnification and advancement of expenses shall continue as to any person who
has ceased to be a director or officer and shall inure to the benefit of such
person's heirs and personal representatives. The Board of Directors may, at any
time, approve indemnification of or advancement of expenses to any other person
that the Corporation has the power by law to indemnify. In all cases not
specifically provided for in this Article VI, indemnification or advancement of
expenses shall not be made to the extent that such indemnification or
advancement of expenses is expressly prohibited by law.
Section 8. Continuation of Indemnification Right.
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(a) The right of indemnification and advancement of expenses under this
Article VI for directors and officers shall be a contract right inuring to the
benefit of the directors and officers entitled to be indemnified hereunder. No
amendment or repeal of this Article VI shall adversely affect any right of such
director or officer existing at the time of such amendment or repeal.
Indemnification and advancement of expenses as provided for in this article VI
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shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person.
(b) Unless expressly otherwise provided when authorized or ratified by
this Corporation, indemnification and advancement of expenses that have been
specifically authorized and approved by the Corporation for a particular
employee or agent shall continue as to a person who has ceased to bean employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
(c) For purposes of this Article VI, the term "corporation"includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director or officer of a constituent corporation, or
is or was serving at the request of a constituent corporation as a director,
officer, employee, agent, trustee or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise, is in the same position
under this Article VI with respect to the resulting or surviving corporation as
such person would have been with respect to such constituent corporation if its
separate existence had continued.
Section 9. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, trustee, fiduciary, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. Such
insurance may cover any liability asserted against such person and incurred by
such person in any such capacity or arising out of such person's status as such,
whether or not the Corporation is obligated to or would have the power to
indemnify such person against the liability under Section 1 or Section 2 of this
Article VI.
ARTICLE VII - INTERESTED PARTIES
Section 1. General. No contract or other transaction between the
Corporation and any one or more of its directors or any other corporation, firm,
association or entity in which one or more of its directors are directors or
officers or are financially interested shall be either void or voidable because
of such relationship or interest, because such director or directors were
present at the meeting of the Board of Directors or of a committee thereof that
authorizes, approves or ratifies such contract or transaction, or because such
director's or directors' votes are counted for such purpose, as long as one or
more of the following requirements is satisfied: (a) the fact of such
relationship or interest is disclosed or known to the Board of Directors or
committee that authorizes, approves or ratifies the contract or transaction by a
vote or consent sufficient for the purpose without counting the votes or
consents of such interested directors; (b) the fact of such relationship or
interest is disclosed or known to the stockholders entitled to vote on the
matter, and they authorize, approve or ratify such contract or transaction by
vote or written consent; or (c) the contract or transaction is fair and
reasonable as to the Corporation at the time it is authorized by the Board of
Directors, a committee thereof or the stockholders.
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Section 2. Determination of Quorum. Common or interested directors
maybe counted in determining the presence of a quorum at a meeting of the Board
of directors or a committee thereof that authorizes, approves or ratifies a
contract or transaction referred to in Section 1 of this Article VII.
Section 3. Approval by Stockholders. For purposes of Section 1(b) of
this Article VII, a conflict of interest transaction shall be authorized,
approved or ratified if it receives the vote of a majority of the shares
entitled to be counted under this Section 3. Shares owned by or voted under the
control of a director who has a relationship or interest in the transaction
described in Section 1 of this Article VII may not be counted in a vote of
stockholders to determine whether to authorize, approve or ratify a conflict of
interest transaction under Section 1(b) of this Article VII. The vote of the
shares owned by or voted under the control of a director who has a relationship
or interest in the transaction described in Section 1 of this Article VII shall
be counted, however, in determining whether the transaction is approved under
other sections of these By-laws and applicable law. A majority of those shares
that would be entitled, if present, to be counted in a vote on the transaction
under this Section 3 shall constitute a quorum for the purpose of taking action
under this Section 3.
ARTICLE VIII - CERTIFICATES OF STOCK
Section 1. Certificates for Shares. Shares may but need not be
represented by certificates. The rights and obligations of stockholders shall be
identical whether or not their shares are represented by certificates. If shares
are represented by certificates, each certificate shall be in such form as the
Board of Directors may from time to time prescribe and shall be signed (either
manually or in facsimile) by the President (and may be signed (either manually
or in facsimile) by the Secretary or an Assistant secretary and/or sealed with
the seal of the Corporation or its facsimile). Each certificate shall set forth
the holder's name and the number of shares represented by the certificate, and
shall state such other matters as may be required by law. The certificates shall
be numbered and entered on the books of the Corporation as they are issued. If
shares are not represented by certificates, then, within a reasonable time after
issue or transfer of shares without certificates, the Corporation shall send the
stockholder a written statement in such form as the Board of Directors may from
time to time prescribe, certifying as to the number of shares owned by the
stockholder and as to such other information as would have been required to be
on certificates for such shares. If and to the extent the Corporation is
authorized to issue shares of more than one class or more than one series of any
class, every certificate representing shares shall set forth or fairly summarize
upon the face or back of the certificate, or shall state that the Corporation
will furnish to any stockholder upon request and without charge a full statement
of: (a) the designations, relative rights, preferences and limitations of the
shares of each class or series authorized to be issued; (b) the variations in
rights, preferences and limitations between the shares of each such series, if
the Corporation is authorized to issue any preferred or special class in series
insofar as the same have been fixed and determined; and (c) the authority of the
Board of Directors to fix and determine the variations, relative rights and
preferences of future series.
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Section 2. Signatures of Past Officers. If the person who signed
(either manually or in facsimile) a share certificate no longer holds office
when the certificate is issued, the certificate shall nevertheless be valid.
Section 3. Transfer Agents and Registrars. The Board of Directors may,
in its discretion, appoint responsible banks or trust companies in such city or
cities as the Board may deem advisable from time to time to act as transfer
agents and registrars of the stock of the Corporation. When such appointments
shall have been made, no stock certificate shall be valid until countersigned by
one of such transfer agents and registered by one of such registrars.
Section 4. Transfer of Shares. Transfers of shares of the Corporation
shall be made upon its books by the holder of the shares in person or by the
holder's lawfully constituted representative, upon surrender of the certificate
of stock for cancellation if such shares are represented by a certificate of
stock or by delivery to the Corporation of such evidence of transfer as may be
required by the Corporation if such shares are not represented by certificates.
The person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes; and the
Corporation shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Florida.
Section 5. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation and alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or the owner's
legal representative, to pay a reasonable charge for issuing the new
certificate, to advertise the matter in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
ARTICLE IX - RECORD DATE
Section 1. Record Date for Stockholder Actions. The Board of Director
is authorized from time to time to fix in advance a date as the record date for
the determination of the stockholders entitled to notice of and to vote at any
meeting of the stockholders and any adjournment thereof (unless a new record
date must be established by law for such adjourned meeting), or of the
stockholders entitled to give such consent or take such action, as the case
maybe. In no event may a record date so fixed by the Board of Directors precede
the date on which the resolution establishing such record date is adopted by the
Board of Directors; and such record date may not be more than seventy (70) nor
less than ten (10) days before the date of any meeting of the stockholders,
before a date in connection with the obtaining of the consent of stockholders
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for any purpose, or before the date of any other action requiring a
determination of the stockholders. Only those stockholders listed as
stockholders of record as of the close of business on the date so fixed as the
record date shall be entitled to notice of and to vote at such meeting and any
adjournment thereof, or to exercise such rights or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. If the Board of
Directors fails to establish a record date as provided herein, the record date
shall be deemed to be the date ten (10) days prior to the date of the
stockholders' meeting.
Section 2. Record Date for Dividend and Other Distributions. The Board
of Directors is authorized from time to time to fix in advance a date as the
record date for the determination of the stockholders entitled to receive a
dividend or other distribution. Only those stockholders listed as stockholders
of record as of the close of business on the date so fixed as the record date
shall be entitled to receive the dividend or other distribution, as the case
maybe, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid. If the Board of Directors fails
to establish a record date as provided herein, the record date shall be deemed
to be the date of authorization of the dividend or other distribution.
ARTICLE X - DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares of capital stock in the
manner and upon the terms and conditions provided by the Articles of
Incorporation of the Corporation and by law. Subject to the provisions of the
articles of Incorporation of the Corporation and to law, dividends may be paid
in cash or property, including shares of stock or other securities of the
Corporation.
ARTICLE XI - FISCAL YEAR
The fiscal year of the Corporation shall be the period selected by the
Board of Directors as the fiscal year. Unless and until changed by the Board of
directors, the fiscal year of the Corporation shall end on December 31 of each
year.
ARTICLE XII - SEAL
The corporate seal shall have the name of the Corporation and the word
"SEAL" inscribed thereon. It may be a facsimile, engraved, printed or
impressioned.
ARTICLE XIII - STOCK IN OTHER CORPORATIONS
Shares of stock in other corporations held by the Corporation shall be
voted by such officer or officers or other agent of the Corporation as the Board
of Directors shall from time to time designate for the purpose or by a proxy
thereunto duly authorized by said Board.
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ARTICLE XIV - AMENDMENTS
These By-laws may be altered, amended or repealed and new By-laws maybe
adopted either by the Board of Directors or by the holders of a majority of the
issued and outstanding shares of stock of the Corporation entitled to vote;
provided, however, that the Board of Directors may not alter, amend or repeal
any By-law adopted by the stockholders if the stockholders specifically provide
that the By-law is not subject to amendment or repeal by the Board.
ARTICLE XV - EMERGENCY BY-LAWS
Section 1. Scope of Emergency By-laws. The emergency By-laws provided
in this Article XV shall be operative during any emergency, notwithstanding any
different provision set forth in the preceding Articles hereof; provided,
however, that to the extent not inconsistent with the provisions of this Article
XV and the emergency By-laws, the By-laws provided in the preceding Articles
shall remain in effect during such emergency. For purposes of the emergency
By-law provisions of this Article XV, an emergency shall exist if a quorum of
the Corporation's directors cannot readily be assembled because of some
catastrophic event. Upon termination of the emergency, these emergency By-laws
shall cease to be operative.
Section 2. Call and Notice of Meeting. During any emergency, a meeting
of the Board of Directors may be called by any officer or director of the
Corporation. Notice of the date, time and place of the meeting shall be given by
the person calling the meeting to such of the directors as it may be feasible to
reach by any available means of communication. Such notice shall be given at
such time in advance of the meeting as circumstances permit in the judgment of
the person calling the meeting.
Section 3. Quorum and Voting. At any such meeting of the Board of
directors, a quorum shall consist of any one or more directors, and the act of
the majority of the directors present at such meeting shall be the act of the
Corporation.
Section 4. Appointment of Temporary Directors.
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(a) The director or directors who are able to be assembled at a meeting
of directors during an emergency may assemble for the purpose of appointing, if
such directors deem it necessary, one or more temporary directors (the
"Temporary Directors") to serve as directors of the Corporation during the term
of any emergency.
(b) If no directors are able to attend a meeting of directors during an
emergency, then such stockholders as may reasonably be assembled shall have the
right, by majority vote of those assembled, to appoint Temporary Directors to
serve on the Board of Directors until the termination of the emergency.
(c) If no stockholders can reasonably be assembled in order to conduct
a vote for Temporary Directors, then the President or his or her successor as
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determined under an emergency succession plan adopted by the Board of Directors
under Section 5 of this Article XV shall be deemed a Temporary Director of the
Corporation, and such President or his or her successor, as the case may be,
shall have the right to appoint additional Temporary Directors to serve with him
or her on the Board of Directors of the Corporation during the term of the
emergency.
(d) Temporary Directors shall have all of the rights, duties and
obligations of directors appointed pursuant to Article III hereof; provided,
however, that a Temporary Director may be removed from the Board of Directors at
any time by the person or persons responsible for appointing such Temporary
Director, or by vote of the majority of the stockholders present at any meeting
of the stockholders during an emergency. In any event, the Temporary Director
shall automatically be deemed to have resigned from the Board of Directors upon
the termination of the emergency in connection with which the Temporary Director
was appointed.
Section 5. Modification of Lines of Succession. Either before or during
any emergency, the Board of Directors may provide, and from time to time modify
lines of succession in the event that during such an emergency any or all
officers or agents of the Corporation shall for any reason be rendered incapable
of discharging their duties.
Section 6. Change of Principal Office. The Board of Directors may,
either before or during any such emergency, and effective during such emergency,
change the principal office of the Corporation or designate several alternative
head offices or regional offices, or authorize the officers of the Corporation
to do so.
Section 7. Limitation of Liability. No officer, director or employee
acting in accordance with these emergency By-laws during an emergency shall be
liable except for willful misconduct.
Section 8. Amendment or Repeal. These emergency By-laws shall be
subject to amendment or repeal by further action of the Board of Directors or by
action of the stockholders, but no such amendment or repeal shall modify the
provisions of Section 7 above with regard to actions taken prior to the time of
such amendment or repeal. Any amendment of these emergency By-laws may make any
further or different provision that may be practical or necessary under the
circumstances of the emergency.
ARTICLE XVI - PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION
Any provision of the Articles of Incorporation of this Corporation
shall, subject to law, control and take precedence over any provision of these
By-laws inconsistent therewith.
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