EXHIBIT 3.3
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BYLAWS
OF
SBA COMMUNICATIONS CORPORATION
As adopted by the Board of Directors on the 24th day of December, 1996.
ARTICLE I
MEETINGS OF SHAREHOLDERS
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Section 1. Annual Meeting. The annual meeting of the shareholders of
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this Corporation shall be held annually at the time and place designated by the
Board of Directors of the Corporation. Business transacted at the annual meeting
shall include the election of directors of the Corporation, in accordance with
the applicable provisions of the Articles of Incorporation, and all other duties
and powers conferred upon the shareholders by the laws of the State of Florida.
Section 2. Special Meetings. Special meetings of the shareholders
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shall be held when directed by the Board of Directors through a resolution
adopted by a majority of the total number of authorized directors (whether or
not any vacancies of previously authorized directorships exist at the time the
Board is presented with such resolution), or when requested in writing by the
holders of not less than fifty percent (50%) of all the shares entitled to vote
on any issue at the meeting. The call for the meeting shall be issued by the
Secretary or the shareholders requesting the special meeting, unless the
President, the Board of Directors or such shareholders designate another person
to do so.
Section 3. Place. Meetings of shareholders may be held within or
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outside of the State of Florida. If no place is designated in the notice for a
meeting of shareholders, the place of meeting shall be the principal office of
the Corporation.
Section 4. Notice. Except as provided in the Florida Business
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Corporation Act (the "Act"), written notice stating the place, day and hour of
the meeting, and in the case of a special meeting, or as otherwise provided by
law, the purpose or purposes for which the meeting is called, shall be delivered
to each shareholder of record entitled to vote at such meeting. Such notice
shall be given at least ten (10) but not more than sixty (60) days before the
date of the meeting, by first class mail by the Secretary or, in the case of a
special meeting duly called by the shareholders, the shareholders requesting
the special meeting, unless the President, the Board of Directors or such
shareholders designate another person to do so. Such notice shall be mailed to
each shareholder at his or her address as it appears on the books of the
Corporation. If the notice is mailed at least thirty (30) days before the date
of the meeting, it may be done by a class of United States mail other than first
class. Such notice is deemed delivered when deposited in the United States mail
with postage prepaid thereon.
Section 5. Notice of Adjourned Meetings. When a meeting is adjourned
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to another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place to which the meeting is adjourned are
announced at the meeting at which the adjournment is taken, and at the adjourned
meeting any business may be transacted that might have been transacted on the
original date of the meeting. If, however, after the adjournment the Board of
Directors fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given as provided
in Article I, Section 4 of these Bylaws to each shareholder of record on the new
record date entitled to vote at such meeting.
Section 6. Waiver of Notice of Shareholders Meetings. Whenever any
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notice is required to be given to any shareholder, a waiver thereof in writing
signed by the shareholder or shareholders entitled to such notice, whether
before, during or after the time of the meeting stated therein and delivered to
the Corporation for inclusion in the minutes or filing with the corporate
records, shall be equivalent to the giving of such notice. Attendance by a
shareholder at a meeting shall constitute a waiver of: (a) lack of notice or
defective notice of such meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting; or (b) lack of defective notice of a
particular matter at a meeting that is not within the purpose or purposes
described in the meeting notice, unless the person objects to considering that
particular matter when it is presented. Unless otherwise required by the
Articles of Incorporation, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the shareholders need be specified
in any written waiver of notice.
Section 7. Fixing Record Date. For the purpose of determining
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shareholders entitled to notice of, or to vote at, any meeting of shareholders
or any adjournment thereof, or to demand a special meeting, or to receive
payment of any distribution, or in order to make a determination of shareholders
for any other purpose, the Board of Directors may fix in advance a date as the
record date for any determination of shareholders, such date in any case to be
not more than seventy (70) days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. A determination of
shareholders entitled to notice of, or to vote at, any meeting of shareholders
shall apply to any adjournment thereof, unless the Board of Directors fixes a
new record date for the adjourned meeting, which it must do if the meeting is
adjourned to a date more than one hundred twenty (120) days after the date fixed
for the original meeting.
Section 8. Voting Record. After fixing a record date for a meeting of
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shareholders, the Corporation shall prepare an alphabetical list of the names of
all shareholders who are entitled to notice of such meeting, arranged by voting
group, with the address of, and the number and class and series, if any, of the
shares held by, each shareholder. The shareholders' list must be available for
inspection by any shareholder for a period of ten (10) days prior to the meeting
or such shorter time as exists between the record date and the meeting and
continuing through the meeting at the Corporation's principal office, at a place
identified in the meeting notice in the city where the meeting will be held, or
at the office of the Corporation's transfer agent or registrar. Any shareholder
of the Corporation or his agent or attorney is entitled on written demand to
inspect the shareholders' list (subject to the requirements of the Act), during
regular business hours and at the shareholder's expense, during the period it is
available for inspection. The Corporation shall make the shareholders' list
available at the meeting of shareholders, and any shareholder or his agent or
attorney is entitled to inspect the list at any time during the meeting or any
adjournment.
If the requirements of this Section have not been substantially complied
with, the meeting shall be adjourned until such time as the Corporation complies
with such requirements on demand of any shareholder in person or by proxy who
failed to get such access. If no such demand is made, failure to comply with
the requirements of this Section shall not affect the validity of any action
taken at such meeting.
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Section 9. Shareholder Quorum and Voting. Shares entitled to vote as a
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separate voting group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Except as otherwise
provided in the Articles of Incorporation or by the Act, a majority of the
shares entitled to vote on the matter by each voting group, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
but in no event shall a quorum consist of less than one-third of the shares of
each voting group entitled to vote. If less than a majority of outstanding
shares entitled to vote are represented at a meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice.
After a quorum has been established at any shareholders' meeting, the subsequent
withdrawal of shareholders, so as to reduce the number of shares entitled to
vote at the meeting below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment thereof.
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. When a specified item of business is required to be voted on
by a class or series of stock, a majority of the shares of such class or series
shall constitute a quorum for the transaction of such item of business by that
class or series.
Section 10. Votes Per Share. Except as otherwise provided in the
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Articles of Incorporation, the terms of any outstanding Preferred Stock or by
the Act, each outstanding share, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders.
Section 11. Manner of Action. If a quorum is present, action on a
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matter (other than the election of directors) by a voting group is approved if
the votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless a greater or lesser number of affirmative votes is
required by the Articles of Incorporation, the Bylaws or by law.
Section 12. Voting for Directors. At each election for directors, every
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shareholder entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him or her for as many persons
as there are directors to be elected at that time and for whose election he or
she has a right to vote. Unless otherwise and affirmatively provided for in the
Articles of Incorporation, cumulative voting is not authorized and the directors
shall be elected by a plurality of the votes cast by the shares entitled to vote
in such election at a meeting at which a quorum is present.
Section 13. Voting of Shares. A shareholder may vote at any duly called
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and noticed meeting of shareholders of the Corporation, either in person or by
proxy.
Shares standing in the name of another corporation, domestic or foreign,
may be voted by the officer, agent or proxy designated by the bylaws of the
corporate shareholder or, in the absence of any applicable bylaw, by such person
as the board of directors of the corporate shareholder may designate. Proof of
such designation may be made by presentation of a certified copy of the Bylaws
or other instrument of the corporate shareholder. In the absence of any such
designation or, in the case of conflicting designation by the corporate
shareholder, the chairman of the board, the president,
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any vice president, the secretary and the treasurer of the corporate shareholder
shall be presumed to possess, in that order, authority to vote such shares.
Shares held by an administrator, executor, guardian, personal
representative or conservator may be voted by him or her, either in person or by
proxy, without a transfer of such shares into his or her name. Shares standing
in the name of a trustee may be voted by him or her, either in person or by
proxy, but no trustee shall be entitled to vote shares held by him or her
without a transfer of such shares into his or her name or the name of his or her
nominee.
Shares held by or under the control of a receiver, a trustee in bankruptcy
proceedings or an assignee for the benefit of creditors may be voted by such
person without the transfer thereof into his or her name.
If a share or shares stand of record in the names of two or more persons,
whether as fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety or otherwise, or if two or more persons have the
same fiduciary relationship with respect to the same shares, unless the
Secretary of the Corporation is given notice to the contrary and is furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, then acts with respect to voting shall
have the following effect: (a) if only one votes, in person or by proxy, that
act binds all; (b) if more than one votes, in person or by proxy, the act of the
majority so voting binds all; (c) if more than one votes, in person or by proxy,
but the vote is evenly split on any particular matter, each faction is entitled
to vote the share or shares in question proportionally; or (d) if the instrument
or order so filed shows that any such tenancy is held in unequal interest, a
majority or a vote evenly split for purposes hereof shall be a majority or a
vote evenly split in interest. The principles of this paragraph shall apply,
insofar as possible, to execution of proxies, waivers, consents, or objections
and for the purpose of ascertaining the presence of a quorum.
Section 14. Proxies. Any shareholder of the Corporation, other person
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entitled to vote on behalf of a shareholder pursuant to the Act, or attorney-in-
fact for such persons, may vote the shareholder's shares in person or by proxy.
Any shareholder of the Corporation may appoint a proxy to vote or otherwise act
for him or her by signing an appointment form, either personally or by an
attorney-in-fact. An executed telegram or cablegram appearing to have been
transmitted by such person, or a photographic, photostatic, or equivalent
reproduction of an appointment form, shall be deemed a sufficient appointment
form.
An appointment of a proxy is effective when received by the Secretary of
the Corporation or such other officer or agent which is authorized to tabulate
votes, and shall be valid for up to eleven (11) months, unless a longer period
is expressly provided in the appointment form.
The death or incapacity of the shareholder appointing a proxy does not
affect the right of the Corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the Secretary or other officer
or agent authorized to tabulate votes before the proxy exercises his authority
under the appointment.
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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 15. Voting Trusts. One or more shareholders may create a voting
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trust, conferring on a trustee the right to vote or otherwise act for them, by
signing an agreement setting out the provisions of the trust and transferring
their shares to the trustee. When a voting trust agreement is signed, the
trustee shall prepare a list of the names and addresses of all owners of
beneficial interest in the trust, together with the number and class of shares
each transferred to the trust, and deliver copies of the list and agreement to
the Corporation's principal office. After filing a copy of the list and
agreement in the Corporation's principal office, such copies shall be open to
inspection by any shareholder of the Corporation, subject to the requirements of
the Act, or to any beneficiary of the trust under the agreement during business
hours. The trustee must also deliver a copy of each extension of the voting
trust agreement, and a list of beneficial owners under such extended agreement,
to the Corporation's principal office.
Section 16. Shareholders' Agreements. Two or more shareholders may
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provide for the manner in which they will vote their shares, and providing for
such other matters as are permitted by the Act, by signing an agreement for that
purpose. When a shareholders' agreement is signed, the shareholders who are
parties thereto shall deliver copies of the agreement to the Corporation's
principal office. After filing a copy of the agreement in the Corporation's
principal office, such copies shall be open to inspection by any shareholder of
the Corporation, subject to the requirements of the Act, or any party to the
agreement during business hours.
Section 17. Inspectors of Election. Prior to each meeting of
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shareholders, the Board of Directors or the President may appoint one or more
Inspectors of Election. Upon his appointment, each such Inspector shall take
and sign an oath to faithfully execute the duties of Inspector at such meeting
with strict impartiality and to the best of his ability. Such Inspector(s)
shall determine the number of shares outstanding, the number of shares present
at the meeting and whether a quorum is present at such meeting. The
Inspector(s) shall receive votes and ballots and shall determine all challenges
and questions as to the right to vote and shall thereafter count and tabulate
all votes and ballots and determine the result. Such Inspector(s) shall do such
further acts as are proper to conduct the elections of directors and the vote
on other matters with fairness to all shareholders. The Inspector(s) shall make
a certificate of the results of the elections of directors and the vote on other
matters. No Inspector shall be a candidate for election as a director of the
Corporation.
Section 18. Action by Shareholders Without a Meeting. Unless otherwise
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provided in the articles of incorporation, action required or permitted to be
taken at any meeting of the shareholders may be taken without a meeting, without
prior notice and without a vote if the action is taken by the holders of
outstanding shares of each voting group entitled to vote thereon having not
less than the minimum number of votes with respect to each voting group that
would be necessary to authorize or take such action at a meeting at which all
voting groups and shares entitled to vote thereon were present and voted. In
order to be effective, the action must be evidenced by one or more written
consents describing the action taken, dated and signed by approving shareholders
having the requisite number of votes of each voting group entitled to vote
thereon, and delivered to the corporation by delivery to its principal office in
Florida, its principal place of business, the Secretary
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of the corporation, or another office or agent of the corporation having custody
of the book in which proceedings of meetings of shareholders are recorded. No
written consent shall be effective to take such corporate action unless, within
sixty (60) days of the date of the earliest dated consent delivered in the
manner required by this Section, written consents signed by the number of
holders required to take such action are delivered to the corporation as set
forth in this Section.
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 of the corporation having
custody of the book in which proceedings of meetings of shareholders are
recorded.
Within ten (10) days after obtaining such authorization by written consent,
notice shall be given to those shareholders who have not consented in writing or
who are not entitled to vote on the action. The notice shall fairly summarize
the material features of the authorized action and, if the action is one for
which dissenters' rights are provided under the articles of incorporation or by
law, 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 applicable law.
A consent signed as required in this Section has the effect of a meeting
vote and may be described as such in any document.
Whenever action is taken as set forth in 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.
ARTICLE II
DIRECTORS
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Section 1. Functions. Except as provided in the Articles of
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Incorporation or by law, all corporate powers shall be exercised by or under the
authority of, and the business and affairs of this Corporation shall be managed
under the direction of, the Board of Directors.
Section 2. Number. The Board of Directors of the Corporation shall
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consist of a number of persons fixed by a resolution of the Board of Directors
from time to time; provided, however, that the Board of Directors shall not
consist of less than one (1) person, and not more than twenty-five (25) persons.
Section 3. How Selected. Unless appointed to fill a vacancy, directors
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shall be elected at the annual meeting of shareholders or at a special meeting,
in accordance with the Articles of Incorporation, as it may be amended from time
to time.
Section 4. Qualifications. Directors must be natural persons over the
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age of 18 years old, but need not be residents of the State of Florida or
shareholders of this Corporation.
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Section 5. Resignation. Any director may resign at any time by
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delivering written notice to the Corporation, the Board of Directors or its
Chairman. Such resignation is effective when the notice is delivered unless the
notice specifies a later effective date, in which event the Board of Directors
may fill the pending vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the effective date.
Section 6. Vacancies. A director shall hold office until the annual
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meeting of the shareholders and until his successors shall be elected and shall
qualify, subject, however, to the director's prior death, resignation,
retirement, disqualification, or removal from office. 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 sole remaining director.
Section 7. Regular Meetings. An annual regular meeting of the Board of
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Directors shall be held without notice as soon as practicable after the annual
meeting of shareholders for the purpose of the election of officers and the
transaction of such other business as may come before the meeting, and at such
other time and place as may be determined by the Board of Directors. The Board
of Directors may, with or without notice, at any time and from time to time,
decide the time and place, either within or outside of the State of Florida, for
the holding of the annual regular meeting or additional regular meetings of the
Board of Directors. Meetings of the Board of Directors may be called by the
Chairman of the Board, the President of the Corporation, or a majority of the
Board of Directors.
Section 8. Special Meetings. Special meetings of the Board of
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Directors may be called by the Chairman of the Board, the President of the
Corporation, or a majority of the Board of Directors.
The person or persons authorized to call special meetings of the Board of
Directors may designate any place, either within or outside of the State of
Florida, as the place for holding any special meeting of the Board of Directors
called by them. If no designation is made, the place of meeting shall be the
principal office of the Corporation in the State of Florida.
Notice of any special meeting of the Board of Directors may be given by any
reasonable means, whether oral or written, and at any reasonable time prior to
such meeting. The reasonableness of any notice given in connection with any
special meeting of the Board of Directors shall be determined in light of all of
the pertinent circumstances. It shall be presumed that notice of any special
meeting given at least two (2) days prior to such special meeting, either orally
(by telephone or in person), or by written notice delivered personally or mailed
to each director at his or her business or residence address, is reasonable. If
mailed, such notice of any special meeting shall be deemed to be delivered on
the second day after it is deposited in the United States mail, so addressed,
with postage thereon prepaid. If notice is given by electronic transmission,
such notice shall be deemed to be delivered when the notice is delivered by the
electronic device. Neither the business to be transacted at, nor the purpose or
purposes of, any special meetings of the Board of Directors need be specified in
the notice or in any written waiver of notice of such meeting.
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Section 9. Waiver of Notice of Meeting. Notice of a meeting of the
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Board of Directors need not be given to any director who signs a written waiver
of notice either before, during 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 and
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 10. Quorum and Voting. A majority of the number of directors
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fixed in the manner provided by these Bylaws shall constitute a quorum for the
transaction of business; provided, however, that whenever, for any reason, a
vacancy occurs in the Board of Directors, a quorum shall consist of a majority
of the remaining directors until the vacancy has been filled. The act of the
majority of the directors present at a meeting at which a quorum is present when
the vote is taken shall be the act of the Board of Directors.
A majority of the directors present, whether or not a quorum exists, may
adjourn any meeting of the Board of Directors to another time and place. Notice
of any such adjourned meeting shall be given to the directors who were not
present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
Section 11. Presumption of Assent. A director of this Corporation who
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is present at a meeting of its Board of Directors, or a committee 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 he or she (i) objects at the
beginning of the meeting (or promptly upon his or her arrival) to holding the
meeting or transacting specified business at the meeting, or (ii) votes against
such action or abstains from the action taken; or (iii) has his or her dissent
entered into the minutes of the meeting or filed with the person acting as the
secretary of the meeting before the adjournment thereof or immediately
thereafter, unless the dissenting director voted in favor of such action.
Section 12. Meetings of the Board of Directors by Means of a Conference
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Telephone or Similar Communications. Members of the Board of Directors may
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participate in a meeting of such Board by means of a conference telephone or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting.
Section 13. Action Without a Meeting. Any action required or permitted
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to be taken at a meeting of the Board of Directors or a committee thereof may be
taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all of the directors of this Corporation, or all the members
of the committee, as the case may be. Action taken under this Section is
effective when the last director or member of the committee signs the consent,
unless the consent specifies a different effective date. Such consent shall
have the effect as a meeting vote and may be described as such in any document.
Section 14. Compensation. Each director may be paid his expenses, if
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any, of attendance at each meeting of the Board of Directors and a committee
thereof, and may be paid a stated salary
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as a director or a fixed sum for attendance at each meeting of the Board of
Directors (or a committee thereof) or both, as may from time to time be
determined by action of the Board of Directors. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 15. Director Conflicts of Interests. No contract or other
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transaction between this Corporation and one or more of its directors or any
other corporation, firm, association or entity in which one or more of the
directors of this Corporation are directors or officers or are financially
interested shall be either void or voidable because of such relationship or
interest, or because such director or directors of this Corporation are present
at the meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction, or because his or
their vote(s) are counted for such purpose, if:
(a) The fact of such relationship or interest is disclosed or known to
the Board of Directors or committee which authorizes, approves or ratifies the
contract or transaction by a vote or consent sufficient for the purpose without
counting the vote(s) or written consent(s) of such interested director(s); or
(b) The fact of such relationship or interest is disclosed or known to
the shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote taken at an annual or special meeting of
shareholders; 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 shareholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
ARTICLE III
COMMITTEES OF THE BOARD OF DIRECTORS
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Section 1. Committees. The Board of Directors or the Chairman of the
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Board may designate from among its members committees from time to time for such
purposes and with such powers as the Board or Chairman may determine.
Section 2. Term. The term of each committee appointed shall continue
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until the next annual meeting of shareholders following its appointment, at
which time the existence of the committee shall automatically terminate unless
the committee is reappointed in the annual meeting of directors held immediately
thereafter; provided, however, that the existence of any committee may be
terminated at any time by affirmative action of the Board.
Section 3. Meetings. Each committee shall hold as many meetings as are
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necessary to continue or complete the performance of its duties.
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Section 4. Record of Meetings. Each committee shall keep or cause to
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be kept minutes of each meeting held, and each set of minutes shall include a
description of all matters considered and all decisions, if any, made. The
minutes of all meetings held since the time of the last preceding regular Board
of Directors meeting shall be filed with the Chairman of the Board at or prior
to the next regular meeting of the Board of Directors, and copies of the minutes
shall be presented to the Board of Directors as part of the committee's reports.
ARTICLE IV
OFFICERS
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Section 1. Officers. If so appointed by the Board of Directors, the
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officers of this Corporation shall consist of a President, one or more Vice
Presidents, a Secretary, a Treasurer, and such other officers as appointed by
the Board of Directors. Any two (2) or more offices may be held by the same
person; however, such a person shall, when acting on behalf of the Corporation
in his capacity as an officer of the Corporation, designate in which capacity or
capacities he is acting and shall be deemed to act only in the capacity(ies) so
designated.
Section 2. Appointment and Term of Office. The officers of the
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Corporation shall be appointed annually by the Board of Directors at the first
meeting of the Board held after the shareholders' annual meeting. If the
appointment of officers does not occur at this meeting, the appointment shall
occur as soon thereafter as practicable. Each officer shall hold office until a
successor has been duly appointed and qualified, or until an earlier
resignation, removal from office, or death.
Section 3. Removal of Officers. Any officer of the Corporation may be
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removed from his or her office or position at any time, with or without cause,
by a majority vote of the Board of Directors. Any officer or assistant officer,
if appointed by another officer pursuant to authority, if any, received from the
Board of Directors, may likewise be removed by such officer.
Section 4. Resignation. Any officer of the Corporation may resign at
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any time from his or her office or position by delivering notice to the
Corporation, the Board of Directors or its Chairman. Such resignation is
effective when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later date and the
Corporation accepts the future effective date, the Board of Directors may fill
the pending vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
Section 5. Duties. If so appointed by the Board of Directors, the
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officers of this Corporation shall have the following duties:
(a) President. Unless otherwise designated by the Board of Directors,
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the President shall be the Chief Executive Officer of the Corporation and shall,
subject to the control of the Board of Directors, in general, supervise and
control all of the business and affairs of the Corporation, and shall preside at
all meetings of the shareholders, the Board of Directors and all committees of
the Board of Directors on which he or she may serve. In addition, the President
shall have the following powers and duties.
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(1) He or she may cause to be called special meetings of the
shareholders and directors in accordance with these Bylaws.
(2) He or she shall appoint and remove, employ and discharge, and fix
the compensation of all servants, agents, employees and clerks of the
Corporation, other than the duly elected officers, subject to policies adopted
by the Board of Directors.
(3) He or she shall sign and make all contracts and agreements in the
name of the Corporation, and see that they are properly carried out.
(4) He or she shall see that the books, reports, statements, and
certificates of the Corporation are properly kept, made, and filed according to
law.
(5) He or she shall sign all certificates of stock, notes, drafts, or
bills of exchange, warrants or other orders for the payment of money duly drawn
by the treasurer.
(6) He or she shall enforce these Bylaws and perform all of the duties
incident to the position and office, and which are required by law.
(7) He or she shall solely and personally be responsible for
collecting, accounting for, and paying of all taxes imposed upon the Corporation
by any governmental authority, whether municipal, county, state or federal.
This power is personal and exclusive to the Chief Executive Officer and may not
be delegated by him or her or regulated by the Board, nor shall it descend to
any other officer.
(b) Vice President. One or more Vice Presidents may be designated by
--------------
that title or such additional title or titles as the Board of Directors may
determine. The duties of the Vice Presidents shall be as follows:
During the absence and inability of the President to perform his or
her duties or exercise his powers, as set forth in these Bylaws or in the acts
under which this Corporation is organized, the same shall be performed and
exercised by a Vice President (in such order of seniority as may be determined
by the Board of Directors or, failing such determination, as may be designated
by the Chairman of the Board); and when so acting, he or she shall have the
powers and be subject to all responsibilities hereby given to or imposed upon
the President. The Vice Presidents shall have such powers and perform such
duties as usually pertain to their office, or as are assigned to them by the
President or the Board of Directors.
(c) Secretary. The Secretary shall have such powers and perform such
---------
duties as are incident to the Office of Secretary of a Corporation, or as are
assigned to him or her by the President or the Board of Directors, including the
following:
(1) He or she shall keep the resolutions, forms of written consent,
minutes of the meetings of the Board of Directors and of the shareholders, and
other official records of the Corporation in appropriate books.
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(2) He or she shall give and serve all notices of the
Corporation.
(3) He or she shall be custodian of the records and of the
corporate seal, and affix the latter when required to authenticate the records
of the Corporation.
(4) He or she shall keep the stock and transfer books in the
manner prescribed by law, so as to show at all times the amount of capital
stock, the manner and the time the same was paid in, the names of the owners
thereof, alphabetically arranged, their respective places of residences, their
post office addresses, the number of shares owned by each, the time at which
each person became such owner, and the amount paid thereon; and keep such stock
and transfer books open daily during the business hours and at the main office
of the Corporation, subject to the inspection of such shareholders as are
authorized to inspect the same, as provided in Article I, Section 8 of these
Bylaws.
(5) He or she shall sign all certificates of stock.
(6) He or she shall present to the Board of Directors all
communications addressed to him or her officially by the President or any
officer or shareholder of the Corporation.
(7) He or she shall attend to all correspondence and perform all
the duties incident to the Office of Secretary.
(8) In the absence of an appointment of a Treasurer, the duties
of the Treasurer.
(d) Treasurer. The Treasurer shall have custody of all corporate
---------
funds and financial records, shall keep full and accurate accounts of receipts
and disbursements and shall perform such other duties as may be prescribed by
the Board of Directors or the President.
Section 6. Other Officers, Employees, and Agents. Each and every other
-------------------------------------
officer, employee, and agent of the Corporation shall possess, and may exercise,
such power and authority, and shall perform such duties, as may from time to
time be assigned to him or her by the Board of Directors, the officer appointing
him or her, and such officer or officers who may from time to time be designated
by the Board to exercise supervisory authority.
ARTICLE V
SHARES OF STOCK
---------------
Section 1. Certificates for Shares. The Board of Directors shall
-----------------------
determine whether shares of the corporation shall be uncertificated or
certificated. If certificated shares are issued, certificates representing
shares in the Corporation shall be signed (either manually or by facsimile) by
the President or Vice President and the Secretary or an Assistant Secretary and
may be sealed with the seal of the Corporation or a facsimile thereof. A
certificate which has been signed by an officer or officers who later shall have
ceased to be such officer when the certificate is issued shall nevertheless
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be valid. Upon receipt of the consideration for which the Board of Directors has
authorized for the issuance of the shares, such shares so issued shall be fully
paid and nonassessable.
Each share certificate representing shares shall state upon the face
thereof: (a) the name of the Corporation; (b) that the Corporation is organized
under the laws of the State of Florida; (c) the name of the person or persons to
whom issued; (d) the number and class of shares, and the designation of the
series, if any, which such certificate represents; and (e) if different classes
of shares or different series within a class are authorized, a summary of the
designation, relative rights, preferences, and limitations applicable to each
class and the variations in rights, preferences, and limitations determined for
each series (and the authority of the Board of Directors to determine variations
for future series), or in the alternative, that the Corporation will provide the
shareholder with a full statement of this information on request and without
charge.
Section 2. Issuance of Shares. All certificates issued shall be
------------------
registered and numbered in the order in which they are issued. They shall be
issued in consecutive order, and on the face of each share shall be entered the
name of the person owning the shares represented by the certificate, the number
of shares represented by the certificate, and the date of issuance of the
certificate. Upon issuance, the certificate shall be signed by the President or
a Vice President, and countersigned by the Secretary or an assistant secretary,
and sealed with the seal of the Corporation. No certificate shall be issued for
any share until such share is fully paid.
Section 3. Transfer of Shares; Ownership of Shares. Transfers of
---------------------------------------
shares of stock of the Corporation shall be made only on the stock transfer
books of the Corporation, and only after the surrender to the Corporation of the
certificates representing such shares, if any, by the person in whose name the
shares stand on the books of the Corporation, or his duly authorized legal
representative. In all cases of transfer, the former certificate must be
surrendered and cancelled before a new certificate will be issued. In case of
transfer by an attorney-in-fact, the power of attorney, duly executed and
acknowledged, shall be deposited with the Secretary of the Corporation.
Section 4. Lost, Stolen or Destroyed Certificates. The Corporation
--------------------------------------
shall issue a new stock certificate in the place of any certificate previously
issued if the holder of record of the certificate: (a) makes proof in affidavit
form that it has been lost, destroyed or wrongfully taken; (b) requests the
issuance of a new certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without
notice of any adverse claim; (c) at the discretion of the Board of Directors,
gives bond in such form and amount as the Corporation may require, to indemnify
the Corporation, the transfer agent and registrar against any claim that may be
made on account of the alleged loss, destruction or theft of such certificate;
and (d) satisfies any other reasonable requirements imposed by the Corporation.
ARTICLE VI
ACTIONS WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS
--------------------------------------------------------
Unless otherwise directed by the Board of Directors, the President or a
designee of the President shall have the power to vote and to otherwise act on
behalf of the Corporation, in person or by proxy, at any meeting of shareholders
on, or with respect to, any action of shareholders of any
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other Corporation in which this Corporation may hold securities and to otherwise
exercise any and all rights and powers which this Corporation may possess by
reason of its ownership of securities in other corporations.
ARTICLE VII
DIVIDENDS
---------
Section 1. Declaration. The Board of Directors may by resolution or
-----------
vote declare such dividends as are permitted pursuant to Florida law, and which
are not otherwise prohibited by any other applicable law or regulation, whenever
in their opinion the condition of the Corporation's affairs will render it
expedient for such dividends to be declared; provided, however that no such
dividends shall be declared when the Corporation is insolvent, when such payment
would render the Corporation insolvent, or when the declaration or payment
thereof would be contrary to applicable laws or regulations or to any
restrictions contained in the Articles of Incorporation.
Section 2. Types. The following types of dividends may be declared
-----
from time to time by the Board of Directors:
(a) Dividends in cash or property; provided, however, that such
dividends may be paid only out of the unreserved and unrestricted earned surplus
of the Corporation.
(b) Dividends in cash paid for out of current net profits or retained
earnings in accordance with the provisions of Florida Statutes, or any successor
statute.
(c) Dividends paid in the Corporation's own authorized but unissued
shares out of any unreserved and unrestricted surplus of the Corporation upon
the following conditions:
(1) If the dividend is payable in its own shares having a par value,
such shares shall be issued at not less than the par value, and there shall be
transferred to stated capital at the time such dividend is paid an amount of
surplus equal to the aggregate par value of the shares to be issued as a
dividend;
(2) If a dividend is payable in its own shares without par value, such
shares shall be issued at such stated value as shall be fixed by the Board of
Directors by a resolution adopted at the time such dividend is declared, and
there shall be transferred to stated capital at the time such dividend is paid
an amount of surplus equal to the aggregate stated value so fixed in respect to
such shares, and the amount per share so transferred to stated capital shall be
disclosed to the shareholders receiving such dividend concurrently with the
payment thereof.
(d) No dividend payable in shares of any class shall be paid to the
holders of the shares of any other class unless the Articles of Incorporation so
provide, or such payment is authorized by the affirmative vote or the written
consent of the holders of at least a majority of the outstanding shares of the
class in which the payment is to be made.
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ARTICLE VIII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
------------------------------------------------------------
Section 1. Insurance. The Board of Directors of the Corporation, in
---------
its discretion, shall have authority on behalf of the Corporation to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, partner, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article. The provisions of the following sections of this
Article VIII shall apply only in the event that no such insurance is in effect
or, if such insurance is in effect, only to the extent that matters for which
indemnification by the Corporation is permitted by such sections are not within
the coverage of such insurance.
Section 2. Action Against a Party Because of Corporation Position. The
------------------------------------------------------
Corporation shall indemnify each officer or director, and may indemnify, in its
sole discretion, any employee or agent who was or is a party, or is threatened
to be made a party, to any threatened, pending, or completed claim, action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(other than an action by, or in the right of, the Corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, partner, officer, employee, or agent of another corporation, a
partnership, joint venture, trust, or other enterprise against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding, including any appeal thereof, if he or she acted in good faith and
in a manner he 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 his conduct was unlawful. The
termination of any claim, action, suit or 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 such person did not act in good
faith and in a manner which he 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 his or her conduct was
unlawful.
Section 3. Action by or in the Right of Corporation. The Corporation
----------------------------------------
shall indemnify any officer or director, and may indemnify, at its sole
discretion, any employee or agent who was or is a party, or is threatened to be
made a party, to any threatened, pending, or completed claim, action or suit by
or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he or she is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, partner, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection with the defense or settlement of such claim, action, or suit,
including any appeal thereof, if he or she acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue, or matter as to which
15
such person shall have been adjudged to be liable for negligence or misconduct
in the performance of his or her duty to the Corporation unless, and only to the
extent that, the court in which such claim, action or suit was brought 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 indemnity for such expenses which such court shall deem proper.
Section 4. Reimbursement if Successful. To the extent that the
---------------------------
director, officer, employee, or agent of the Corporation has been successful on
the merits or otherwise in defense of any claim, action, suit, or proceeding
referred to in Section 2 or Section 3 of this Article VIII, or in defense of any
claim, issue, or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, notwithstanding that he had not been successful (on the
merits or otherwise) on any other claim, issue, or matter in any such claim,
action, suit or proceeding.
Section 5. Authorization. Any indemnification under Section 2 or
-------------
Section 3 of this Article VIII (unless ordered by a court of competent
jurisdiction) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she met
the applicable standard of conduct set forth in Section 2 or Section 3 of this
Article VIII. Such determination shall be made:
(a) By a majority vote of a quorum of the Board of Directors; however,
for the purposes of this Subsection, a quorum shall consist of directors who are
or were not parties to such action, suit or proceeding; or
(b) If such quorum is not obtainable, or even if obtainable, by a
majority vote of a committee duly designated by the Board of Directors (in which
directors who are parties may participate) consisting solely of two or more
directors who were not at the time parties to the proceeding;
(c) By independent legal counsel who are (i) selected by the Board of
Directors prescribed in paragraph (a) or the committee prescribed in paragraph
(b); or (ii) if a quorum of the directors cannot be obtained for paragraph (a)
and the committee cannot be designated under paragraph (b), selected by majority
vote of the full Board of Directors (in which directors who are parties may
participate);
(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who are or were not parties to such action, suit or proceeding, or,
if no such quorum is obtainable, by a majority vote of shareholders who were not
parties to such action, suit or proceeding.
Section 6. Advance Reimbursement. Expenses, including attorneys' fees,
---------------------
incurred in defending a civil or criminal action, suit, or proceeding shall be
paid to officers and directors, and, in its sole discretion, may be paid to
agents and employees by the Corporation in advance of the final disposition of
such action, suit or proceeding, upon a preliminary determination, following one
of the procedures set forth in Section 5 of this Article VIII, that the
director, officer, employee or agent
16
met the applicable standard of conduct set forth in Section 2 or Section 3 of
this Article VIII, or as authorized by the Board of Directors in the specific
case and, in either event, upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article.
Section 7. Further Indemnification. Indemnification as provided in
-----------------------
this Article shall not be deemed exclusive. The Corporation shall make any
other further indemnification of any of its directors, officers, employees or
agents that may be authorized under any statute, rule or law, provision of
Articles of Incorporation, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, except an indemnification
against gross negligence or willful misconduct. Where such other provision
provides broader rights of indemnification than these Bylaws, such other
provision shall control.
Section 8. Continuing Right of Indemnification. Indemnification as
-----------------------------------
provided in this Article shall continue as to a person who has ceased to be a
director, officer, employee, or agent, and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
Section 9. Limitation on Indemnity and Reimbursement. Notwithstanding
-----------------------------------------
any other provisions of this Article, in the event that the Board of Directors
determines that the action giving rise to a claim for indemnity or expense
reimbursement is the result of gross negligence or willful misconduct upon the
part of the claimant, no such indemnity or expense reimbursement shall be
provided by the Corporation.
ARTICLE IX
BOOKS AND RECORDS
-----------------
Section 1. Books and Records. This Corporation shall maintain accurate
-----------------
accounting records and shall keep records of minutes of all meetings of its
shareholders and Board of Directors, a record of all actions taken by the Board
of Directors without a meeting and a record of all actions taken by a committee
of the Board of Directors in place of the Board of Directors on behalf of the
Corporation. The Corporation's books and records may be inspected by any
shareholder upon reasonable written notice to the Corporation, provided his or
her request is made in good faith and for a proper purpose.
This Corporation or its agent shall also maintain a record of its
shareholders in a form that permits preparation of a list of names and addresses
of all shareholders in alphabetical order by classes of shares showing the
number and series of shares held by each.
This Corporation shall keep a copy of the following records: (a) its
Articles or Restated Articles of Incorporation and all amendments thereto
currently in effect; (b) its Bylaws or Restated Bylaws and all amendments
thereto currently in effect; (c) written communications to all shareholders
generally or all shareholders of a class or series within the past three years,
including the financial statements furnished for the past three years; (d) a
list of the names and business street
17
addresses of its current directors and officers; and (e) its most recent annual
report delivered to the Department of State.
Any books, records and minutes may be in written form or in any other form
capable of being converted into written form within a reasonable time.
Section 2. Annual Financial Information. Unless modified by a
----------------------------
resolution of the shareholders within one hundred twenty (120) days of the close
of each fiscal year, this Corporation shall furnish each shareholder annual
financial statements which may be consolidated or combined statements of the
Corporation and one or more of its subsidiaries, as appropriate, that include a
balance sheet as of the end of such fiscal year, an income statement for that
year, and a statement of cash flows for that year. If financial statements are
prepared for the Corporation on the basis of generally accepted accounting
principles, the annual financial statements must also be prepared on that basis.
If the annual financial statements are reported upon by a certified public
accountant, his, her, or its report must accompany the statements. If not, the
statements must be accompanied by a statement of the President or the person
responsible for this Corporation's accounting records: (a) stating his, her or
its reasonable belief whether the statements were prepared on the basis of
generally accepted accounting principles and, if not, describing the basis of
preparation; and (b) describing any respects in which the statements were not
prepared in accordance with any basis of accounting consistent with the
statements prepared for the preceding year.
The annual financial statements shall be mailed to each shareholder within
one hundred twenty (120) days after the close of each fiscal year or within such
additional time thereafter as is reasonably necessary to enable the Corporation
to prepare its financial statements if, for reasons beyond its control, the
Corporation is unable to prepare its financial statements within the prescribed
period. Thereafter, on written request from a shareholder who has not been
mailed the statements, the Corporation shall mail him or her the latest
financial statements.
ARTICLE X
CORPORATE SEAL
--------------
The Board of Directors shall provide for a corporate seal which may be
facsimile, engraved, printed or an impression seal which shall be circular in
form and shall have inscribed thereon the name of the Corporation, the words
"seal" and "Florida" and the year of incorporation.
ARTICLE XI
AMENDMENTS
----------
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted, by either a majority of members of the Board of Directors or a majority
vote of the shareholders; provided that (i) the Board of Directors may not
alter, amend or repeal any Bylaw adopted by shareholders if the shareholders
specifically provide that such Bylaw is not subject to amendment or repeal by
the directors; and (ii) in the case of any amendment of these Bylaws by
shareholder
18
action, two-thirds (66 2/3%) of the shareholders, acting only by voting at a
special meeting, will be required to amend any provision in Articles I, II,
Article VIII, or this Article XI.
0232448.03
19