EXHIBIT 3.2(e)
SECOND AMENDED AND RESTATED BYLAWS OF
AUTO MARKETING NETWORK, INC.
ARTICLE I
OFFICES
The principal office of Auto Marketing Network, Inc. (the "Corporation")
shall be established and maintained at Suite 315, 2101 Corporate Boulevard,
N.W., Boca Raton, County of Palm Beach, State of Florida. The corporation may
also have offices at such places within or without the State of Florida as the
Board of Directors may from time to time establish.
ARTICLE II
MEETING OF SHAREHOLDERS
Section 2.01. PLACE OF MEETINGS. Meetings of the shareholders shall be
held at the principal office of the corporation or at such place within or
without the State of Florida as the Board of Directors shall authorize.
Section 2.02. ANNUAL MEETING. Annual meetings of the shareholders for the
election of directors and for the transaction of such other business as properly
may be brought before the meeting shall be held at such place, within or without
the State of Florida, and time as shall be determined by the Board of Directors.
Section 2.03. SPECIAL MEETINGS. Special meetings of the shareholders, for
any lawful purpose or purposes, unless otherwise prescribed by statute, may be
called by the President or by the Chairman of the Board of Directors, and shall
be called by the President or by the Secretary or by the Chairman of the Board
of Directors following receipt of a written request stating the purposes thereof
and signed by the holders of not less than 30% of all the outstanding shares of
the Corporation entitled to vote at the meeting. Each such meeting shall be held
at such place, and on such date and at such time, as the Board of Directors of
the Corporation shall designate in a resolution duly adopted by it, for the
purposes stated in the notice thereof. Business transacted at any special
meeting shall be limited to the purposes stated in the notice of the meeting.
Section 2.04. NOTICE OF MEETINGS. Written or printed notice stating the
place, day, hour and purposes of the meeting, shall be delivered not less than
10 (ten) nor more than sixty (60) days before the date of the meeting, either
personally or by mail or other means of written communication, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock records
of the Corporation or as the
shareholder has designated in writing. A waiver of any notice, signed by a
shareholder before or after the time for the meeting, shall be deemed equivalent
to such notice.
Section 2.05. Inspectors of Elections. If the object of a shareholder's
meeting is to elect directors or to take a vote of the shareholders on any
proposition, then the President or other person presiding at such meeting shall
appoint not fewer than two persons, who are not directors or candidates for
election as a director, inspectors to receive and count the votes given at such
meeting and certify the result to him or her. In all cases where the right to
vote upon any share or shares of the Corporation shall be questioned, it shall
be the duty of the inspectors to decide such questions subject to any ruling by
the President or person presiding at the meeting. Each inspector, before he or
she shall enter on the duties of his office, shall take and subscribe to an oath
to perform faithfully his or her duties as such.
Sec 2.06. Quorum. Except as otherwise provided by law or by the
Articles of Incorporation of the Corporation, at all meetings of shareholders
the holders of a majority of the outstanding shares of the Corporation entitled
to vote at the meeting shall be present in person or by proxy in order to
constitute a quorum for the transaction of business.
Section 2.07. Voting Lists. At least 10 days before every meeting of
shareholders, a list of the shareholders (including their addresses) entitled to
vote at the meeting, arranged in alphabetical order, and their record holding as
of the record date shall be open for examination by any shareholder, for any
purpose germane to the meeting, during ordinary business hours, at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting or, if not so specified, at the place where the
meeting is to be held. The list also shall be kept at and throughout the
meeting, and may be inspected by any shareholder who is present at such meeting.
Section 2.08. Voting of Shares. Unless otherwise provided in the
Articles of Incorporation, at any meeting of the shareholders every shareholder
of record having the right to vote thereat shall be entitled to one vote for
every share of stock standing in his or her name as of the record date and
entitling him or her to so vote. A share holder may vote in person or by proxy.
Section 2.09. Proxies. Every proxy shall be executed in writing by the
shareholder or by his or her attorney-in-fact. Such proxy shall be filed with
the office or agent having charge of the stock transfer books for shares before
or at the time of the meeting. No proxy shall be valid after 11 months from the
date of its execution, unless otherwise provided in the proxy.
Section 2.10. Conduct of Meetings. At each meeting of the
shareholders, the Chairman of the Board of Directors or, in his or her absence,
the President, shall act as Chairman of the meeting. The Secretary, or in his
or her absence, any person appointed by the Chairman shall act as Secretary of
the meeting and shall keep the minutes thereof. The order of business at all
meetings of the shareholder shall be as determined by the Chairman of the
meeting.
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Section 2.11. Action Without Meeting Prohibited. Any action required
or permitted to be taken by the shareholders of the Corporation must be effected
at a duly called annual or special meeting of the shareholders of the
Corporation and may not be effectuated by any consent in writing by such
shareholders.
ARTICLE III
DIRECTORS
Section 3.01. General Powers. The business and affairs of the
Corporation shall be managed by the Board of Directors which shall exercise all
the powers of the Corporation, except as otherwise provided by Florida law or
the Articles of Incorporation of the Corporation.
Section 3.02. Number of Directors. The Board of Directors shall
consist of not less than three members. The number of directors may be reduced
or increased from time to time by action of a majority of the entire Board of
Directors, but no decrease may shorten the term of an incumbent director. When
used in these Bylaws, the phrase, "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no vacancies.
Directors need not be shareholders.
Section 3.03. Election, Classification and Term of Directors.
Directors shall be elected at the annual meeting of shareholders and shall be
divided into three classes, A, B and C, as nearly equal in number as the total
number of directors constituting the whole board permits, with the term of
office of one class expiring each year. Directors in Class A shall hold office
for an initial term expiring at the 1997 annual meeting of shareholders,
directors in Class B shall hold office for an initial term expiring at the 1998
annual meeting of the shareholders and directors in Class C shall hold office
for an initial term expiring at the 1999 annual meeting of the shareholders.
Each director in each class shall serve until his successor has been elected and
qualified, or until the director's prior resignation or removal. Subject to the
foregoing, at each annual meeting of shareholders the successors to the class of
directors whose terms shall then expire shall be elected to hold office for a
term expiring at the third succeeding annual meeting and each director so
elected shall hold office until his successor has been elected and qualified, or
until the director's prior resignation or removal. If the number of directors is
changed, any increase or decrease in the number of directors shall be
apportioned among the three classes so as to make all classes as nearly equal in
number as possible.
Section 3.04. Resignations; Vacancies. A director shall hold office
until the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to the
director's prior death, resignation, disqualification or removal from office.
The shareholders shall have the right to remove any one or all of the directors
with or without case upon the affirmative vote of the holders of a majority of
the shares then entitled to vote at any meeting of shareholders, voting together
as a single class. Any vacancy on the Board of Directors that results from a
newly created directorship may be filled by the affirmative vote of a majority
of the Board of Directors then in office; and any other vacancy occurring on
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the Board of Directors may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of such director's
predecessor.
Section 3.05. Regular Meetings. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Florida. An annual meeting of the Board of Directors shall be held either (a)
without notice immediately after the annual meeting of shareholders and in the
same place, or (b) as soon as practicable after the annual meeting of
shareholders on such date and at such time and place as the Board of Directors
determines. Regular meetings of the Board of Directors shall be held on such
dates and at such places and times as the Board of Directors determines. Notice
of regular meetings need not be given, except as otherwise required by law. The
Board of Directors or any committee designated by the Board of Directors may, by
resolution, establish a time and place for additional regular meetings which may
be held without further notice other than such resolution.
Section 3.06. Special Meetings. Special meetings of the Board of
Directors may be called by or at the direction of the Chairman of the Board of
Directors or President or the Secretary upon the written request of a majority
of the directors. The request shall state the date, time, place and purpose or
purposes of the proposed meeting.
Section 3.07. Notice of meetings. Notice of each annual or special
meeting of the Board of Directors shall be given not later than 24 hours before
the meeting is scheduled to commence, by the Chairman of the Board of Directors
or President or the Secretary and shall state the place, date and time of the
meeting. Notice of each meeting may be delivered to a director by hand or given
to a director orally (whether by telephone or in person) or mailed, telecopied
or telegraphed to a director at his or her residence or usual place of business,
provided, however, that if notice of less than 72 hours is given it may not be
mailed. If mailed, the notice shall be deemed to have been given when deposited
in the United States mail, postage prepaid; and if telecopied or telegraphed,
the notice shall be deemed to have been given when the contents of the telecopy
or telegram are transmitted to the recipient with instructions that the telecopy
or telegram immediately be delivered. Notice of any meeting need not be given to
any director who shall submit, either before or after the meeting, a signed
waiver of notice or who shall attend the meeting, except if such director shall
attend for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened. Notice of any adjourned meeting including the place, date and time of
the new meeting, shall be given to all directors not present at the time of the
adjournment, as well as to the other directors unless the place, date and time
of the new meeting is announced at the adjourned meeting.
Section 3.08. Quorum and Manner of Acting. Except as otherwise
provided by law or in these Bylaws, at all meetings of the Board of Directors a
majority of the entire Board of Directors shall constitute a quorum for the
transaction of business, and the vote of a majority
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of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. A majority of the directors present, whether or
not a quorum is present, may adjourn any meeting to another place, date and
time.
Section 3.09. Conduct of Meetings. At each meeting of the Board of
Directors, the Chairman of the Board of Directors shall act as Chairman of the
meeting or, in the absence of the Chairman of the Board of Directors, the
President shall act as Chairman of the meeting. The Secretary or, in his or her
absence, any person appointed by the Chairman of the meeting, shall act as
Secretary of the meeting and keep the minutes thereof. The order of business at
all meetings of the Board of Directors shall be as determined by the Chairman of
the meeting.
Section 3.10. Committee of Directors. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each such committee to consist of one or more of the
directors of the corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting an not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting at the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following: approving or recommending to
shareholders actions or proposals required by law to be approved by the
shareholders; filling vacancies on the Board of Directors or any committee
thereof; adopting, amending or repealing these Bylaws; authorizing or approving
the reacquisition of shares unless pursuant to a general formula or method
specified by the Board of Directors; authorizing or approving the issuance or
sale or contract for the sale of shares, or determining the designation of the
relative rights, preferences and limitations of a voting group except that the
Board of Directors may authorize a committee (or a senior executive officer of
the Corporation) to do so within limits specifically prescribed by the Board of
Directors. Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
(a) Executive Committee. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, may designate
three or more directors to constitute an Executive Committee, which
Committee, unless its authority shall be otherwise expressly limited by
such resolution or other resolutions, shall have and may exercise all of
the authority of the entire Board of Directors in the business and
affairs of the Corporation expect where action of the entire Board of
Directors is specified by statute. Vacancies in the membership of the
Executive Committee may be filled by the Board of Directors at any
regular or special meeting of the Board of Directors or by unanimous
written consent. The Executive Committee shall keep regular minutes of
its proceedings and report the same to the Board of Directors at their
next meeting. The
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designation of such Committee and the delegation thereto of authority shall not
operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed upon the Board of Directors or the member by law.
The Board of Directors may from time to time designate the
number of such Executive Committee members that shall constitute a quorum and
provide for the holding of regular meetings thereof. In the absence of any such
designation, a majority of the members of the Executive Committee shall
constitute a quorum. The affirmative vote of a majority of those present at a
meeting of the Executive Committee at which a quorum is present shall be
necessary for the adoption of any resolution.
Meetings of the Executive Committee may be called by any member
upon at least three (3) days prior written notice, which may be given by
telegraph. Notwithstanding the provisions of the immediately preceding sentence,
any member of the Executive Committee, may, when such member deems circumstances
to so warrant, call a special meeting of the Executive Committee upon notice by
mail, telegram or telephone given not later than the day preceding the date of
the meeting.
Any member of the Executive Committee who ceases to be a
director shall cease ipso facto to be a member of the Executive Committee. Any
member may resign at any time upon written notice to the Corporation. A
resignation shall become effective when and as specified in the notice or, in
the absence of such specification, upon its acceptance by the Corporation.
The members of the Executive Committee may be paid such
compensation for their services and such expenses incurred by them in connection
therewith, as the Board of Directors may determine, but otherwise shall not be
entitled to any compensation for their services as Executive Committee members.
(b) Audit Committee. The Board of Directors, by a resolution adopted
by a majority of the entire Board of Directors, may designate three or more
directors to constitute an Audit Committee, which Committee, unless its
authority shall be otherwise expressly limited by such resolution or other
resolutions, shall have the following duties, among others:
(i) make recommendations to the Board of Directors as to:
(A) the selection of the firm of independent public accountants and
auditors to examine the books and accounts of the Corporation and its
subsidiaries and affiliates for each fiscal year; (B) the proposed
arrangement for the independent public accountants and auditors for
each fiscal year, including the scope of the examination, the proposed
fees and the reports to be rendered; (C) the advisability of having
the independent public accountants and auditors make specified studies
and reports as to auditing matters, accounting procedures, tax or
other matters;
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(ii) review the results of the audit for each fiscal year of
the Corporation with the independent public accountants and auditors and
appropriate management representatives, which review should cover and
include, among other things, the audit report, the published financial
statements and any other pertinent reports;
(iii) review with the independent public accountants and
auditors such major accounting policies of the Corporation as are deemed
appropriate for review by the Committee, as well as any other specific
accounting policies deemed by the Committee to be appropriate for
discussion;
(iv) report to the Board of Directors at each meeting of the
full Board of Directors following a meeting of the Audit Committee
concerning the Committee's activities.
Vacancies in the membership of the Audit Committee may be filled by the
Board of Directors at any regular or special meeting of the Board of Directors
or by unanimous written consent.
The Audit Committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors at its next meeting. The designation
of such Committee and the delegation thereto of authority shall not operate to
relieve the Board of Directors, or any member thereof, of any responsibility
imposed upon the Board of Directors or the member by law.
Meetings of the Audit Committee may be called by any member upon at
least three (3) days prior written notice.
(c) Compensation Committee. The Board of Directors, by a resolution
adopted by a majority of the entire Board of Directors, may designate three or
more directors to constitute a Compensation Committee, which committee, unless
its authority shall be otherwise expressly limited by such resolution or other
resolutions, shall have the following duties, among others:
(i) consider and make recommendations to the Board of
Directors and the officers of the Corporation with respect to the
overall compensation policies of the Corporation;
(ii) approve the compensation payable to all officers of the
Corporation;
(iii) review proposed compensation of executives as provided in
the Corporation's executive compensation plan;
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(iv) advise management on all other executive compensation
matters as requested;
(v) constitute and act as the Stock Option Plan Committee;
and
(vi) report to the Board of Directors as and when appropriate
with respect to all of the foregoing.
The Board of Directors, by a resolution adopted by a majority of the
entire Board of Directors, may, in lieu of establishing a separate stock option
committee, confer the duties of the stock option set forth in subsection (d)
below to the Compensation Committee.
Vacancies in the membership of the Compensation Committee may be filled
by the Board of Directors at any regular or special meeting of the Board of
Directors or by unanimous written consent.
The Compensation Committee shall keep regular minutes of its proceedings
and report the same to Board of Directors when required. The designation of
such Committee and the delegation thereto of authority shall not operate to
relieve the Board of Directors, or any member thereof, of any responsibility
imposed upon the Board of Directors or the member by law.
The Board of Directors may from time to time designate the number of
such Compensation Committee members that shall constitute a quorum and provide
for the holding of regular meetings thereof. In the absence of any such
designation, a majority of the members of the Compensation Committee shall
constitute a quorum. The affirmative vote of a majority of those present at a
meeting of the Compensation Committee at which a quorum is present shall be
necessary for the adoption of any resolution or the taking of any action.
Meetings of the Compensation Committee may be called by any member upon
at least three (3) days prior written notice.
(d) Stock Option Committee. The Board of Directors, by a resolution
adopted by a majority of the entire Board of Directors, may designate two or
more directors to constitute a Stock Option Committee, each of whom shall be a
"disinterested person" within the meaning of Rule 16b-3 (or any successor rule
or regulation) promulgated under the Securities Exchance Act of 1934, as
amended, which Committee, unless its authority shall be otherwise expressly
limited by such resolution or other resolutions, shall have the following
duties, among others:
(i) to determine the employees, officers and directors to whom
stock options ("Options") shall be granted, pursuant to any performance
stock
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option plan of the Corporation ("Stock Option Plan") as may be amended
from time to time, the time when such Options shall be granted, the
number of shares of common stock which shall be subject to each Option,
the period(s) during which such Options shall be exercisable (whether in
whole or in part), and other terms and provisions thereof;
(ii) to construe the Stock Option Plan and Options granted
thereunder, to amend the Stock Option Plan and Options granted
thereunder, to prescribe, amend and rescind rules and regulations
relating to the Stock Option Plan, to determine the terms and provisions
of the respective Options and to make all other determinations necessary
or advisable for administering the Stock Option Plan;
(iii) any or all powers and functions of the Stock Option
Committee may at any time and from time to time be exercised by the
Board of Directors or the Executive Committee thereof; provided,
however, that, with respect to the participation in the Stock Option
Plan by employees who are members of the Board of Directors or of the
Executive Committee, as the case may be, such powers and functions of
the Stock Option Committee may be exercised by the Board of Directors or
the Executive Committee only if, at the time of such exercise, a
majority of the members of the Board of Directors or the Executive
Committee, as the case may be, and a majority of the directors acting in
the particular matter, are "disinterested persons" within the meaning of
Rule 16b-3 (or any successor rule or regulation) promulgated under the
Securities Exchange Act of 1934, as amended;
(iv) advise management on all other matters pertaining to the
Stock Option Plan as requested;
(v) report to the Board of Directors as and when appropriate
with respect to all of the foregoing;
Vacancies in the membership of the Stock Option Committee may be filled
by the Board of Directors at any regular or special meeting of the Board of
Directors or by unanimous written consent.
The Stock Option Committee shall keep regular minutes of its proceedings
and report the same to the Board of Directors when required. The designation of
such Committee and the delegation thereto of authority shall not operate to
relieve the Board of Directors, or any member thereof, of any responsibility
imposed upon the Board of Directors or the member by law.
The Board of Directors may from time to time designate the number of
such Stock Option Committee members that shall constitute a quorum and provide
for the
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holding of regular meetings thereof. In the absence of any such
designation, a majority of the members of the Stock Option Committee shall
constitute a quorum. The affirmative vote of a majority of those present at a
meeting of the Stock Option Committee at which a quorum is present, shall be
necessary for the adoption of any resolution or the taking of any action.
Meetings of the Stock Option Committee may be called by any member upon
at least three (3) days prior written notice.
Section 3.11. Written Consent of Action in Lieu of a Meeting. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee may be taken without a meeting if all members of
the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors or committee.
Section 3.12. Meetings Held Other Than In Person. Members of the Board
of Directors or any committee may participate in a meeting of the Board of
Directors or committee, as the case may be, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear and speak to each other, and such participation shall
constitute presence in person at the meeting.
Section 3.13. Compensation. By resolution of the Board of Directors
and irrespective of any personal interest of any of the members, each director
may be paid his expenses, if any, of attendance at each meeting of the Board of
Directors or any committee thereof, and may be paid a stated salary as director
or a fixed sum for attendance at each meeting of the Board of Directors or any
committee thereof, or both. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 3.14. Honorary Directors. In addition to the directors of the
Corporation, there may be as many honorary directors as the shareholders or the
Board of Directors may elect. Honorary directors shall be elected by the
shareholders at any meeting of shareholders or by the Board of Directors at any
meeting of the directors. Honorary directors shall have no liability after they
become honorary directors for the actions of the Board of Directors and shall
not be required to attend any meeting of the Board of Directors, but shall be
notified of all meetings of the Board of Directors in the same manner as the
directors, and if in attendance at such meetings, shall have all the rights and
privileges of directors (including the right to receive director's fees and
expenses), except the right to vote on all matters before such meetings and all
other matters which may be brought before the Board of Directors from time to
time.
Section 3.15. Management Advisors. In addition to the directors of the
Corporation, and any honorary directors as may be designated, there may be as
many management advisors to the Board of Directors as the Board of Directors may
appoint. Management advisors to the Board of Directors may be appointed by the
Board of Directors at any meeting of the directors. Management advisors to the
Board of Directors shall have no liability upon or after their
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appointment for the actions of the Board of Directors and shall not be required
to attend any meetings of the Board of Directors, but shall be notified of all
meetings of the Board of Directors in the same manner as the directors.
Section 3.16. Presumption of Assent. A director of the Corporation who
is present at a meeting of the Board of Director or any committee thereof at
which corporate action is taken shall be presumed to have assented to the action
taken unless he or she objects at the beginning of such meeting to the holding
of the meeting or the transacting of business thereat, or he or she shall
contemporaneously request that his or her dissent from the action taken be
entered in the minutes of the meeting, or he or she shall file a written dissent
to such action with the person acting as the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of such
action.
Section 3.17. Transactions with Interested Directors.
(a) No contract or other transaction between the Corporation
and 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 are present at the meeting of the Board of
Directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction, or because his or their votes are counted
for such purpose, if (i) the fact of such relationship or interest is
disclosed or known to the Board of Directors or committee which
authorizes, approves or ratifies such contract or transaction by a vote
or consent sufficient for the purpose without counting the votes or
consents of such interested directors; (ii) the fact of such
relationship or interest is disclosed or known to the shareholders
entitled to vote and they authorize, approve or ratify such contract or
transaction by vote or written consent; or (iii) 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, or the
shareholders.
(b) For purposes of paragraph (a)(i) only, a conflict of
interest transaction is authorized, approved or ratified if it receives
the affirmative vote of a majority of the directors on the Board of
Directors, or on the committee, who have no relationship or interest in
the transaction described in subsection (a), but a transaction may not
be authorized, approved or ratified under this section by a single
director. If a majority of the directors who have no such relationship
or interest in the transaction vote to authorize, approve or ratify the
transaction, a quorum is present for the purpose of taking action under
this section. The presence of, or a vote cast by, a director with such
relationship or interest in the transaction does not affect the validity
of any action taken under paragraph (a)(i) if the transaction is
otherwise authorized, approved or ratified as provided in that
subsection, but such presence or vote of those directors may be counted
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for purposes of determining whether the transaction is approved under
other sections of this act.
(c) For purposes of paragraph (b)(i), a conflict of interest
transaction is authorized, approved or ratified if it receives the vote
of a majority of the shares entitled to be counted under this
subsection. Shares owned by or voted under the control of a director who
has a relationship or interest in the transaction described in
subsection (a) may not be counted in a vote of shareholders to determine
whether to authorize, approve or ratify a conflict of interest
transaction under paragraph (b)(i). The vote of those shares, however,
is counted in determining whether the transaction is approved under
other sections of this act. A majority of the shares, whether or not
present, that are entitled to be counted in a vote on the transaction
under this subsection constitutes a quorum for the purpose of taking
action under this section.
ARTICLE IV
OFFICERS
Section 4.01. Offices. The officers of the Corporation shall consist of
a President, one or more Vice Presidents, a Secretary and a Treasurer, and may
include a Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, a Chief Executive Officer and such Assistant Secretaries, Assistant
Treasurers and other officers as the Board of Directors in its discretion may
determine, each of whom shall be elected by the Board of Directors. Any two or
more offices may be held by the same person, except that the President and
Secretary shall not be the same person.
Section 4.02. Election. The Board of Directors, at its first meeting
after each annual meeting of shareholders, shall choose a President, one or more
Vice Presidents, none of whom need be a member of the Board of Directors, and
may elect one of the directors as Chairman of the Board of Directors. If any of
the other officers listed in Section 1 of this Article IV are not elected at
such first meeting, they may be elected at any subsequent meeting of the
directors.
Section 4.03. Other Offices. Such other officers and assistant
officers as may be deemed necessary may be elected by the Board of Directors.
Section 4.04. Salaries. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
Section 4.05. Term of Office. The officers of the Corporation shall
hold office until their successors are elected and qualify. Any officer
elected by the Board of Directors may be removed by the affirmative vote of a
majority of the whole Board of Directors with or without cause. Any vacancy
occurring in any office of the Corporation due to death, resignation,
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removal or otherwise shall be filled for the unexpired portion of the term by
the Board of Directors.
Section 4.06. Chairman.
(a) Chairman. The Chairman of the Board of Directors, if
such an officer shall have been elected by the Board of Directors, shall
preside at all meetings of the shareholders and the Board of
Directors. Except where, by law, the signature of the President is
required, the Chairman shall possess the same power as the President to
sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors.
(b) Vice Chairman. The Vice Chairman shall, in the absence
or disability of the Chairman, perform the duties and exercise the
powers of the Chairman. He shall perform such other duties and have such
other powers as the Board of Directors shall prescribe.
Section 4.07. Chief Executive Officer. The Chief Executive Officer
shall have general active management of the business of the Corporation, and in
the absence of the Chairman of the Board of Directors, shall preside at all
meetings of the shareholders and the Board of Directors; and shall see that all
orders and resolutions of the Board of Directors are carried into effect.
Section 4.08. President. The President, in the absence of the Chairman
of the Board of Directors and the Chief Executive Officer, shall preside at all
meetings of the shareholders and the Board of Directors. The President shall
have general supervision of the affairs of the Corporation, shall sign or
countersign all certificates, contracts or other instruments of the Corporation
as authorized by the Board of Directors, shall make reports to the Board of
Directors and shareholders, and shall perform any and all of the duties as are
incident to the office of the President or are properly required of him or her
or assigned to him or her by the Board of Directors.
Section 4.09. Vice Presidents. The Vice Presidents, in the order
designated by the Board of Directors, shall exercise the functions of the
President during the absence or disability of the President. Each Vice
President shall have any other duties or powers as are assigned from time to
time by the Board of Directors.
Section 4.10. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the shareholders and record all the
proceedings of the meetings of the shareholders and of the Board of Directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and meetings of the Board of Directors or
President, under whose supervision he shall be. He shall keep, or cause to be
kept, the seal of the
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Corporation and affix, or cause to be affixed, the same to any instrument
requiring it, and, when so affixed, it shall be attested by his signature or by
the signature of an Assistant Secretary.
Section 4.11. Assistant Secretaries. The Assistant Secretaries, in the
order of their seniority, unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the duties and
exercise the powers of the Secretary. They shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 4.12. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer, and of the financial condition of the
Corporation.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control and belonging to the Corporation.
Section 4.13. Other Subordinate Officers. Other subordinate officers
appointed by the Board of Directors shall exercise any powers and perform any
duties as may be delegated to them by the resolutions appointing them, or by
subsequent resolutions adopted from time to time.
Section 4.14. Absence of Any Officer. In the absence or disability of
any officer of the Corporation and of any person authorized to act in his or her
place during such period of absence or disability, the Board of Directors may
from time to time delegate the powers and duties of that officer to any other
officer, or any director, or any other person whom it may select.
Section 4.15. Resignations. Any officer may resign at any time by
giving written notice thereof to the Corporation. A resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not
be necessary to make it effective.
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ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS
AND EMPLOYEES
Section 5.01. Rights to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is involved in any action,
suit or other type of proceeding whether civil, criminal, administrative or
investigative and whether formal or informal (hereinafter a "Proceeding), by
reason of the fact that he or she 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, employee or agent of another Corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such Proceeding is alleged action
in official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Florida Business Corporation Act, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against liability, including obligations to pay a judgment,
settlement, penalty fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses (including counsel fees, including those
for appeal), incurred in connection with such Proceeding, including any appeal
thereon; and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrator; provided, however, that, except
as provided in Section 5.02 below, the Corporation shall not indemnify any such
person seeking indemnification in connection with a Proceeding (or part thereof)
which was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such Proceeding in advance of its final disposition; provided,
however, that, if the Florida Business Corporation Act requires, the payment of
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a Proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article V or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 5.02. Right of Claimant to Bring Suit. If a claim under
Section 5.01 is not paid in full by the Corporation within thirty (30) days
after a written claim has been received by the Corporation, the claimant may
at any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
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be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Florida Business Corporation Act for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Florida Business Corporation Act, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
Section 5.03. Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article V shall not be exclusive of any
other rights which any person may have or hereafter acquire under any statute,
provision of the Articles of Incorporation, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
Section 5.04 Contracts. The Board of Directors is authorized to enter
into a contract with any director, officer, employee or agent of the
Corporation, or any person serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including employee benefit plans, providing
for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than, those provided for in this Article V.
Section 5.05 Insurance. The Board of Directors may authorize, by a
vote of a majority of a quorum of the Board of Directors, the Corporation to
purchase and maintain insurance to the extent reasonably available, at its
expense, to protect itself and any other director, officer, employee or agent of
the Corporation or any director, officer, employee or agent of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Florida Business Corporation Act.
Section 5.06. Amendments. Any amendment, repeal or modification of any
prevision of this Article V by the shareholders or the directors of the
Corporation shall not adversely affect any right or protection of a director,
officer or employee of the Corporation existing at the time of such amendment,
repeal or modification.
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ARTICLE VI
PROVISIONS RELATING TO STOCK CERTIFICATES
AND SHAREHOLDERS
Section 6.01. Certificates. Certificates for the Corporation's capital
stock shall be in such form as required by law and as approved by the Board of
Directors. Each certificate shall be signed in the name of the Corporation by
the President or any Vice President and by the Secretary, the Treasurer or any
Assistant Secretary or any Assistant Treasurer and shall bear the seal of the
Corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent or registered by a registrar, other than the Corporation or its
employees, the signature of any officer of the Corporation may be a facsimile
signature. In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature was placed on any certificate shall have
ceased to be such officer, transfer agent or registrar before the certificate
shall be issued, it may nevertheless be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the
date of issue.
Section 6.02. Loss Certificates. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board of
Directors may require the owner of the lost, mutilated, stolen or destroyed
certificate, or his or her legal representative, to make an affidavit of that
fact and 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 on account
of the alleged loss, mutilation, theft or destruction of the certificate or the
issuance of a new certificate.
Section 6.03. Transfers of Shares. Subject to the terms of any
shareholder agreement relating to the transfer of shares or other transfer
restrictions contained in the Articles of Incorporation or authorized therein,
transfers of shares shall be registered on the books of the Corporation
maintained for that purpose after due presentation of the stock certificates
therefor appropriately endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer.
Section 6.04. Record Date.
(a) The Board of Directors may fix a record date for the
purpose of determining the shareholders entitled to notice of or to vote
at any meeting of shareholders or any adjournment thereof. The record
date fixed for such purpose shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors
and shall not be more than 70 days before the date of such meeting. If
the Board of Directors does not fix a record date for such purpose, the
record date for such purpose shall be at the close of business on the
day next preceding the day on which the notice is given and, if notice
is waived, at the close of business on the day next preceding the day on
which the meeting is held.
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(b) The Board of Directors may fix a record date for the
purpose of determining the shareholders entitled to receive payment of
any dividend or other distribution or allotment of any rights, or the
purpose of any other action. The record date fixed for such purpose
shall not precede the date upon which the resolution fixing this record
date is adopted. If the Board of Directors does not fix a record date,
the record date for determining the shareholders for any such purpose
shall be at the close of business on the date on which the Board of
Directors adopts the resolution relating thereto.
Section 6.05. Registered Owner. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State of
Florida.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01. Dividends, Etc. To the extent permitted by Florida law,
the Board of Directors shall have full power and discretion, subject to the
provisions of the certificate of incorporation of the Corporation and the terms
of any other corporate document or instrument binding upon the Corporation, to
determine what, if any, dividends or distributions shall be declared and paid or
made. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the certificate of incorporation.
Section 7.02. Seal. The Corporation's seal shall be in such form as is
required by law and as shall be approved by the Board of Directors.
Section 7.03. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.04. Voting Shares in Other Corporations. Unless otherwise
directed by the Board of Directors, shares in other corporations which are held
by the Corporation shall be represented and voted only by the President or a
proxy appointed by him.
Section 7.05. Waiver of Notice. Whenever any notice is required to be
given to any shareholder or director of the Corporation under the provisions of
these Bylaws or under the provisions of the Articles of Incorporation or under
the provisions of the Florida Business Corporation Act, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice.
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ARTICLE VIII
AMENDMENTS
Section 8.01. Amendments. These Bylaws may be altered, amended or
repealed by a majority of the directors present at any meeting of the Board of
Directors at which a quorum is present, subject to the right of the shareholders
to alter, amend or repeal any Bylaw adopted, altered, amended or repealed by the
Board of Directors.
ARTICLE IX
EMERGENCY BYLAWS
Section 9.0. Conduct of Business Without Meetings. Pursuant to Florida
Statute 607.0207, the corporation adopts the following Bylaws, which shall be
effective only if a quorum of the Directors of the corporation cannot be readily
assembled because of some catastrophic event.
Section 9.02. Calling a Meeting. In the event of such catastrophic
event, any member of the Board of Directors shall be authorized to call a
meeting of the Board of Directors. Such member calling an emergency meeting
shall use any means of communication at his disposal to notify all other members
of the Board of Directors of such meeting.
Section 9.03. Quorum. Any one member of the Board of Directors shall
constitute a quorum of the Board of Directors. The members of the Board of
Directors meeting during such an emergency may select any person or persons as
additional Board of Directors members, officers or agents of the corporation.
Section 9.04. Indemnification. The members of such emergency Board of
Directors are authorized to utilize any means at their disposal to preserve and
protect the assets of the corporation. Any action taken in good faith and acted
upon in accordance with these Bylaws shall bind the corporation; and the
corporation shall hold harmless any Director, officer, employee or agent who
undertakes an action pursuant to these Bylaws.
Section 9.05. Termination of Emergency Bylaws. These emergency Bylaws
shall not be effective at the and of the emergency period.
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