Exhibit 3(ii)
BY-LAWS
OF
DYCOM INDUSTRIES, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
corporation shall be located in the City of Palm Beach Gardens, County of Palm
Beach, State of Florida.
Section 2. Other Offices. The corporation may also have
offices at such other places, both within and without the State of Florida, as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. Place of Meeting. All meetings of shareholders for
the election of directors shall be held in the City of Palm Beach Gardens, State
of Florida, at such place as may be fixed from time to time by the board of
directors, or at such other place, either within or without the State of
Florida, as shall be designated from time to time by the board of directors and
stated in the notice of the meeting.
Section 2. Date and Hour of Meeting. Annual meetings of
shareholders, commencing with the year 1983, shall be held on the third Thursday
of November, if not a legal holiday, and if a legal holiday, then on the next
secular day following, at 10:00 A.M., or at such other date and hour as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting.
Only such business shall be conducted as shall have been
brought before the meeting by or at the direction of the presiding officer.
Section 3. Notice of Meeting. Written notice of the annual
meeting, stating the place, date and hour of the meeting, shall be delivered not
less than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the
president, the secretary or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting.
Section 4. Purpose of Meeting. At the annual meeting, the
shareholders shall elect a board of directors and transact such other business
as may properly be brought before the meeting.
Section 5. Matters to be Considered at Annual Meeting. At an
annual meeting of shareholders, only such new business shall be conducted, and
only such proposals shall be acted upon as shall have been brought before the
annual meeting (a) by, or at the direction of, the board of directors or (b) by
any shareholder of record of the corporation who is such a shareholder at the
time of giving of notice pursuant to this Section 5, who is entitled to vote at
such meeting and with respect to such proposal and who complies with the notice
procedures set forth in this Section 5. For a proposal to be properly brought
before an annual meeting by a shareholder, the shareholder must have given
timely notice thereof in writing to the secretary of the corporation. To be
timely, a shareholder's notice must be delivered to, or mailed and received at,
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the meeting is
changed by more than 30 days from such anniversary date, notice by the
shareholder to be timely must be received no later than the close of business of
the 10th day following the earlier of the day on which notice of the date of the
meeting was mailed or public disclosure of the date of the meeting was made. A
shareholder's notice to the secretary of the corporation shall set forth as to
each matter the shareholder proposes to bring before that annual meeting (a) a
brief description of the proposal desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (b)
the name and address, as they appear on the corporation's books, of the
shareholder proposing such business and any other shareholders known by such
shareholder to be supporting such proposal, (c) the class and number of shares
of the corporation's capital stock which are beneficially owned by (i) the
shareholder; (ii) any other person who beneficially owns,
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or shares beneficial ownership, of any shares owned of record or beneficially
owned by such shareholder; (iii) any group of which the shareholder is a member;
(iv) any person acting in concert with such shareholder or group; (v) any
affiliates or associates of the foregoing persons; and (vi) any other
shareholders known by such shareholder to be supporting such proposal on the
date of such shareholder notice and (d) any financial interest of the persons
referred to in clauses (i) through (v) of the foregoing clause (c) in, or with
respect to, the proposal which is to be made. Notwithstanding anything in the
by-laws to the contrary, no business shall be conducted at an annual meeting
except in accordance with this Section 5. As used in this paragraph: the term
"beneficial ownership" (or derivations thereof) shall include, without
limitation, "beneficial ownership" as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any successor
regulation thereto, and a person shall be deemed, without limitation to
beneficially own any shares which such person is deemed to beneficially own
under such Rule 13d-3 or any such successor regulation; the terms "affiliate"
and "associate" mean persons defined as such "affiliates" or "associates" in
accordance with Rule 12b-2 under the Exchange Act, or any successor regulation
thereto; and the term "group" means a "group" as defined in Rule 13d-5 under the
Exchange Act, or any successor regulation thereto.
A shareholder's notice to the secretary of the corporation
shall be submitted to the board of directors for review. The board of directors,
or a designated committee thereof, may determine whether a notice has complied
with the requirements of this Section 5, and may reject as invalid any
shareholder proposal which was not the subject of a notice timely made in
accordance with, and containing all information required by, the terms of this
Section 5. If neither the board of directors nor such committee makes a
determination as to the compliance with the requirements of this Section 5, the
presiding officer of the annual meeting shall determine and declare at the
annual meeting whether such notice has so complied and whether the shareholder
proposal described in such notice may be made in accordance with the terms of
this Section 5. If the board of directors or a designated committee thereof or
the presiding officer
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determines that a shareholder proposal was the subject of a notice made in
accordance with the terms of this Section 5, and if the shareholder giving such
notice shall make such proposal, the presiding officer shall so declare at the
annual meeting and ballots shall be provided for use at the meeting with respect
to any such proposal. If the board of directors or a designated committee
thereof or the presiding officer determines that a shareholder proposal was not
the subject of a notice made in accordance with the terms of this Section 5, and
if the shareholder giving such notice shall make such proposal, the presiding
officer shall so declare at the annual meeting and any such proposal shall not
be acted upon at the annual meeting.
This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, the board
of directors and committees of the board of directors, but in connection with
such reports, no new business shall be acted upon at such annual meeting unless
stated, filed and received as herein provided.
Section 6. Conduct of Meetings of Shareholders by Presiding
Officer. The presiding officer at any meeting of the shareholders of the
corporation shall have the power (A) to determine the procedure to be followed
in presenting and voting upon all business that may be transacted at the meeting
and to adopt, to the extent he deems appropriate, rules for such purpose, (B) to
adjourn a meeting, duly called and noticed, at which a quorum is present in
person or by proxy if a matter to be considered and acted upon at the meeting
requires the affirmative vote of more than a majority of a quorum at the meeting
voting in person or by proxy and at the meeting as originally duly called and
noticed (i) the number of shares voted in person or by proxy in favor of such
matter is insufficient to approve it and (ii) the number of shares voted in
person or by proxy against such matter is insufficient to disapprove it. Shares
which are voted in person or by proxy as abstaining from voting on any such
matter shall be deemed not to have voted on such matter for the purposes of this
Section 6. At any adjourned meeting which has been adjourned by the presiding
officer as provided in this Section 6, any business may be transacted which
could have been transacted at the meeting as originally called if a quorum is
present.
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ARTICLE III
SPECIAL MEETINGS OF SHAREHOLDERS
Section 1. Time and Place of Meeting. Special meetings of
shareholders for any purpose other than the election of directors may be held at
such time and place, within or without the State of Florida, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Purpose of Meeting: Persons Entitled to Call.
Special meetings of shareholders for any purpose or purposes, unless otherwise
prescribed by statute or by the articles of incorporation, may be called at any
time by the chairman of the board and shall be called by the chairman of the
board or the secretary at the request in writing of a majority of the board of
directors or of the holders of not less than one-tenth of all the shares
entitled to vote at the meeting. Any such request shall state the purpose or
purposes of the proposed meeting.
Only such business shall be conducted as shall have been
brought before the meeting by or at the direction of the presiding officer.
Section 3. Notice of Meeting. Written notice of a special
meeting, stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than sixty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary or the officer or
persons calling the meeting, to each shareholder of record entitled to vote at
such meeting.
Section 4. Business Transacted at Meeting. Business transacted
at any special meeting of shareholders shall be limited to the purpose or
purposes stated in the notice of the meeting.
ARTICLE IV
SHAREHOLDER LIST:
QUORUM AND VOTING OF STOCK
Section 1. Shareholder List. The officer or agent having
charge of the corporation's stock transfer books shall make, at least ten days
before each meeting of
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shareholders, a complete list of the shareholders entitled to vote at the
meeting or any adjournment thereof, with the address and number of shares held
by each shareholder. For a period of ten days prior to the meeting, the list
shall be kept on file at the registered office of the corporation, at the
principal place of business of the corporation or at the office of the transfer
agent or registrar of the corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. The list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to inspection by any shareholder at any time during the meeting.
Section 2. Quorum. A majority of the shares of stock issued
and outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum for the transaction of business at all meetings of
shareholders, except as otherwise provided by statute or by the articles of
incorporation. If a quorum shall not be present or represented at any meeting of
shareholders, the shareholders present in person or represented by proxy shall
have the power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 3. Vote Required for Shareholders' Action. Except in
elections for directors, if a quorum is present, a vote shall be the act of the
shareholders if the affirmative vote of shares of stock represented at the
meeting and entitled to vote on the subject matter exceed the votes cast
opposing the action, unless the vote of a greater number of shares of stock is
required by statute or by the articles of incorporation. In elections for
directors, if a quorum is present, directors are elected by a plurality of the
votes cast by the shares of stock represented and entitled to vote at the
meeting, unless the vote of a greater number of shares of stock is required by
the articles of incorporation. The candidates for directors receiving the
highest number of votes, up to the number of directors to be elected, are
elected.
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Section 4. Voting of Shares. Each outstanding share of stock
having voting power shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders, unless otherwise provided in the articles of
incorporation. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact. In all
elections for directors, every shareholder entitled to vote shall have the right
to vote, in person or by proxy, the number of shares of stock owned by him for
as many persons as there are directors to be elected at that time and for whose
election he has a right to vote.
Section 5. Action by Shareholders Without a Meeting. Unless
otherwise provided in the articles of incorporation, any action required by
statute to be taken at any annual or special meeting of shareholders, or any
action which may be taken at any annual or special meeting of shareholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. If any class of
shares is entitled to vote thereon as a class, such written consent shall be
required of the holders or a majority of the shares of each class of shares
entitled to vote as a class thereon and of the total shares entitled to vote
thereon. Within ten days after obtaining such authorization by written consent,
notice shall be given to those shareholders who have not consented in writing.
The notice shall fairly summarize the material features of the authorized action
and, if the action be a merger, consolidation, or sale or exchange of assets for
which dissenters' rights are provided by statute, the notice shall contain a
clear statement of the right of shareholders dissenting therefrom to be paid the
fair value of their shares upon compliance with further provisions of law
regarding the rights of dissenting shareholders.
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ARTICLE V
DIRECTORS
Section 1. Number; Term. The number of directors which shall
constitute the whole board shall be determined from time to time by resolution
of the board. Directors need not be residents of the State of Florida or
shareholders of the corporation. Unless otherwise provided in the articles of
incorporation, the directors shall be elected at the annual meeting of
shareholders and each director elected shall serve until the next succeeding
annual meeting and until his successor shall have been duly elected and shall
have qualified or until his earlier resignation, removal from office or death.
Section 2. Vacancies. Any vacancy occurring in the board,
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, and any director so chosen shall hold
office until the next annual election and until his successor shall have been
duly elected and shall have qualified.
Section 3. Management of Business and Affairs. The business
and affairs of the corporation shall be managed under the direction of the board
of directors, which may exercise all such powers of the corporation and do all
such lawful acts and things as are not by statute or by the articles of
incorporation or by these by-laws directed or required to be exercised or done
by the shareholders.
Section 4. Maintenance of Books and Records. The directors may
keep the books of the corporation, except such as are required by law to be kept
within the state, outside the State of Florida, at such place or places as they
may from time to time determine.
Section 5. Compensation of Directors. The board of directors,
by the affirmative vote of a majority of the directors then in office, and
irrespective of any personal interest of any of its members, shall have
authority to establish reasonable compensation of all directors for services to
the corporation as directors, officers or otherwise.
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Section 6. Director Nominations. Nominations of candidates for
election as directors at any meeting of shareholders called for an election of
directors (an "Election Meeting") may be made (a) by, or at the direction of,
the nominating committee of the board of directors, or, if there is no such
nominating committee, by, or at the direction of, a majority of the board of
directors or (b) by any shareholder of the corporation who is a shareholder of
record at the time of giving notice provided in this Section 6, who is entitled
to vote at such Election Meeting, and who has given proper and timely notice of
his intention to make such nomination as provided in this Section 6. Only
persons nominated in accordance with the procedures set forth in this Section 6
shall be eligible for election as directors at an Election Meeting.
A shareholder desiring to make a nomination pursuant to clause
(b) of the preceding paragraph (a "Nominating Shareholder") shall give timely
notice in writing to the secretary of the corporation as set forth in this
Section 6. To be timely, a Nominating Shareholder's notice must be received at
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is changed by more than 30 days from such anniversary date, notice by
the Nominating Shareholder to be timely must be received not later than the
close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the date of
the meeting was made.
A Nominating Shareholder's notice shall be signed by such
Nominating Shareholder and set forth, as of the date of such notice, as to each
person whom the Nominating Shareholder proposes to nominate for election or
re-election as a director and as to the Nominating Shareholder (or if such
notice is given by, or with respect to, a person who is part of a group, as to
each person in such group): (i) the name, age, business address and residence
address of such person; (ii) the principal occupation or employment of such
person; (iii) the class and number of shares of the corporation's capital stock
which are beneficially owned by (A) such person; (B) any other person who
beneficially owns, or shares beneficial ownership, of any
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shares owned of record or beneficially owned by such person; (C) any group of
which such person is a member; (D) any person acting in concert with such person
or group; (E) any affiliates or associates of the foregoing persons; and (F) any
other shareholders known by such Nominating Shareholder to be supporting such
nomination; (iv) a description of all arrangements or understandings between the
shareholder or any of the persons referred to in clauses (A) through (F) of the
foregoing clause (iii) and each nominee and any other person or persons (naming
such person or persons) pursuant to, or in connection with, which the nomination
or nominations proposed to be made by the Nominating Shareholder; and (v) any
other information relating to the persons referred to in clause (iv), or any of
the persons referred to in clauses (A) through (F) of the foregoing clause
(iii), that is or would be required to be disclosed to shareholders and/or
contained in materials required to be filed with the Securities and Exchange
Commission in connection with solicitations of proxies with respect to nominees
for election as directors pursuant to the applicable proxy rules then in effect
under the Exchange Act, or any successor regulations. Such notice shall also
include a representation of the Nominating Shareholder that such person is a
holder of record of shares of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in such notice. The board of directors may require
any proposed nominee to furnish such other information as may reasonably be
required by the board of directors to determine the eligibility of such proposed
nominee to serve as a director of the corporation. As used in this paragraph:
the term "beneficial ownership" (or derivations thereof) shall include, without
limitation, "beneficial ownership" as defined in Rule 13d-3 under the Exchange
Act or any successor regulation thereto, and a person shall be deemed, without
limitation to beneficially own any shares which such person is deemed to
beneficially own under such Rule 13d-3 or any such successor regulation; the
terms "affiliate" and "associate" mean persons defined as such "affiliates" or
"associates" in accordance with Rule 12b-2 under the Exchange Act, or any
successor regulation thereto; and the term "group" means a "group" as defined in
Rule 13d-5 under the Exchange Act, or any successor regulation thereto.
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No person shall be elected as a director of the corporation at
an Election Meeting unless nominated in accordance with the procedures set forth
in this Section 6. No nomination shall be valid if the nominee is not duly
qualified, at the time of nomination, to serve as a director in compliance with
all provisions of the articles of incorporation, the by-laws and all applicable
laws. Ballots bearing the names of all persons who have been properly nominated
for election as directors at an Election Meeting in accordance with the
procedures set forth in this Section 6 shall be provided for use at the Election
Meeting.
A shareholder's notice to the secretary of the corporation
shall be submitted to the board of directors for review. The board of directors
may determine whether a notice has complied with all requirements of this
Section 6, and may reject as invalid any nomination by a shareholder who has not
given timely notice of his intention to make such nomination, containing all
information required by this Section 6, or whose notice is found to contain any
material misstatements. If the board of directors does not make a determination
as to the compliance of a shareholder's notice with the requirements of this
Section 6, the presiding officer of the Election Meeting shall determine and
declare at the Election Meeting whether such notice has so complied and whether
the nomination proposed in such notice may be made in accordance with the terms
of this Section 6. If the board of directors or the presiding officer determines
that such nomination may be made in accordance with the terms of this Section 6,
and if the shareholder giving such notice shall make such nomination at the
Election Meeting, the presiding officer shall so declare the nomination valid at
the Election Meeting. If the board of directors or the presiding officer
determines that a notice of a proposed nomination was not given in accordance
with the terms of this Section 6, and if a shareholder shall propose such
nomination at the Election Meeting, the presiding officer shall declare the
nomination invalid at the Election Meeting and the defective nomination shall be
disregarded. Nothing herein contained shall be construed to require the
inclusion of the name of any such nominee in any proxy materials distributed by
or on behalf of the corporation.
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ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Place. Meetings of the board of directors, regular
or special, may be held either within or without the State of Florida. At
meetings of the board of directors, the chairman of the board shall preside.
Section 2. First Meeting. The first meeting of each newly
elected board shall be held at the time and place fixed for the annual meeting
of shareholders, and immediately following the same, and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present, or the meeting may
convene at such place and time as shall be specified in a notice given as
hereinafter provided for special meetings of the board or as shall be fixed by
the written consent of all the directors.
Section 3. Regular Meetings; Notice. Regular meetings of the
board may be held upon such notice, or without notice, and at such time and such
place as shall from time to time be determined by the board.
Section 4. Special Meetings; Notice. Special meetings of the
board may be called by the chairman of the board on three days notice to each
director, delivered personally or by first-class mail, telegram or cablegram.
Special meetings shall be called by the chairman of the board or the secretary
in like manner and on like notice upon the written request of two directors.
Section 5. Waiver of Notice. Notice of a meeting of the board
need not be given to any director who signs a waiver of notice either before or
after the meeting. Attendance of a director at a meeting shall constitute a
waiver of notice of such meeting and waiver of any and all objections to the
place or time of the meeting or the manner in which it has been called or
convened, except when a director states, at the beginning of the meeting, any
objection to the transaction of business because the meeting is not lawfully
called or convened. Neither the
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business to be transacted at, nor the purpose of, any regular or special meeting
of the board need be specified in the notice or waiver of notice of such
meeting.
Section 6. Quorum. A majority of the directors shall
constitute a quorum for the transaction of business unless a greater number is
required by statute or by the articles of incorporation. The act of a majority
of the directors present at any meeting at which a quorum is present shall be
the act of the board, unless the act of a greater number is required by statute
or by the articles of incorporation. Members of the board of directors may
participate in a meeting of the board by means of a conference telephone or
similar communications equipment whereby all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at the meeting. If a quorum shall not be present at any meeting of
directors, a majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 7. Action by Directors Without a Meeting. Any action
required by statute to be taken at a meeting of the board, or any action which
may be taken at a meeting of the board or a committee thereof, may be taken
without a meeting if a consent in writing, setting forth the action to be so
taken, signed by all the directors or all the members of the committee, as the
case may be, is filed in the minutes of the proceedings of the board or of the
committee. Such consent shall have the same effect as a unanimous vote.
ARTICLE VII
EXECUTIVE AND OTHER COMMITTEES
Section 1. Designation; Authority. The board of directors, by
resolution adopted by a majority of the board, may designate from among its
members an executive committee and one or more other committees, each of which,
to the extent provided in such resolution, shall have and may exercise all the
authority of the board in the management of the corporation, except as otherwise
required by law. Vacancies in the membership of any committee shall be filled by
the board of directors at a regular or special meeting of the board.
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Each committee shall keep regular minutes of its proceedings and report the same
to the board when required.
Section 2. Absence or Disqualification of Committee Member. In
the absence or disqualification from voting of a member of the committee, the
member or members thereof present at any meeting and 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 in the place of
such absent or disqualified member.
ARTICLE VIII
NOTICES
Section 1. How and When Given. Whenever, under the provision
of the statutes or of the articles of incorporation or of these by-laws, notice
is required to be given to any director or shareholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or shareholder at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given when deposited in the United States mail. Notice to
directors may also be given by telegram or cablegram.
Section 2. Waiver. Whenever any notice is required to be given
under the provisions of the statutes or the articles of incorporation or of
these by-laws, 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.
ARTICLE IX
OFFICERS, AGENTS AND EMPLOYEES
Section 1. Titles. The officers of the corporation shall be
elected by the board of directors and shall consist of a chairman of the board
of directors, a president, a vice-president, a secretary and a treasurer. The
board may also elect additional vice-presidents and
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one or more assistant secretaries and assistant treasurers. Any two or more
offices may be held by the same person.
Section 2. Manner of Appointment. The board of directors at
its first meeting after each annual meeting of shareholders shall elect a
chairman of the board of directors, a president, one or more vice-presidents, a
secretary and a treasurer, none of whom need be a member of the board except the
chairman of the board of directors.
Section 3. Other Officers and Agents. The board of directors
may appoint such other officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as the board shall determine from time to time.
Section 4. Compensation. The salaries of all officers and
agents of the corporation shall be fixed by the board of directors.
Section 5. Term of Office. The officers of the corporation
shall hold office until their successors are chosen and qualified. Any officer
elected or appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board. Any vacancy occurring in any office
of the corporation shall be filled by the board.
Section 6. The Chairman of the Board of Directors. There shall
be a chairman of the board of directors who shall be elected by the board of
directors from its members. The chairman of the corporation shall preside at all
meetings of the shareholders and the board of directors. The chairman shall see
that all orders and resolutions of the board are implemented and shall perform
such other functions as the board of directors may require from time to time.
The chairman shall be responsible to the board of directors and shall seek board
approval and guidance on major corporation strategies, policies, and objectives,
including long-range planning, mergers, acquisitions, consolidations and
liquidations. In addition, the chairman shall execute bonds, mortgages, and
other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed
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and except where the signing and execution thereof shall be expressly delegated
by the board of directors to some other officer or agent of the corporation.
Section 7. The President. The president shall be the chief
executive officer of the corporation. The president shall have the general
powers and duties of supervision and management usually vested in the office of
the president of a corporation and shall exercise such powers and perform such
duties as generally pertain or are necessarily incidental to the president's
office and shall have such other powers and perform such other duties as may be
specifically assigned to the president from time to time by the board of
directors. In addition, the president shall have general charge of, and shall
direct, and supervise the operations of the corporation's subsidiaries, subject
to the control and direction of the chairman of the board and the board of
directors, and the presidents of each of the corporation's subsidiaries will
report directly to the president. The president shall execute bonds, mortgages,
and other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board to some other officer or agent of the corporation.
Section 8. The Vice President. The vice-president, or if there
shall be more than one, the vice-presidents in the order determined by the board
of directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other powers as the board may from time to time prescribe.
Section 9. The Secretary and Assistant Secretaries. The
secretary shall attend all meetings of the board of directors and all meetings
of the shareholders and shall record all the proceedings of the meetings of the
corporation and of the board in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The secretary
shall give, or cause to be given, notice of all meetings of the shareholders and
of special meetings of the board of directors and shall perform such other
duties as may be prescribed by
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the board of directors or the president, under whose supervision he shall be.
The secretary shall have custody of the corporate seal of the corporation and
he, or an assistant secretary, shall have authority to affix the same to any
instrument requiring it, and when so affixed it may be attested by his signature
or by the signature of such assistant secretary. The board of directors may give
general authority to any other officer to affix the seal of the corporation and
to attest the affixing by his signature. The assistant secretary, or if there be
more than one, the assistant secretaries in the order 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 and shall perform such other
duties and have such other powers as the board may from time to time prescribe.
Section 10. The Treasurer and Assistant 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, taking proper vouchers for such
disbursements, and shall render to the chairman of the board of directors and
the board of directors, at its regular meetings, or when the board 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 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
belonging to the corporation. The assistant treasurer, or, if there shall be
more than one, the assistant treasurers in the order determined by the board of
directors, shall, in the absence or disability of the treasurer, perform the
duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the board may from time to time prescribe.
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Section 11. General Counsel. The Board of Directors may, in
its discretion, appoint a General Counsel of the Corporation. That General
Counsel shall render such legal service and perform such duties as the Board of
Directors, Chairman of the Board of Directors, President or other elected or
appointed officer may request from time to time.
ARTICLE X
SHARES
Section 1. Shares Represented by Certificates. The shares of
the corporation shall be represented by certificates signed by the chairman of
the board of directors or the president or a vice-president of the corporation
and by the secretary or an assistant secretary of the corporation, and may be
sealed with the seal of the corporation or a facsimile thereof. Every
shareholder shall be entitled to have a certificate representing all shares to
which the shareholder is entitled. When the corporation is authorized to issue
shares of more than one class or more than one series of any class, there shall
be set forth or fairly summarized upon the face or back of the certificate, or
the certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of, the
designations, preferences, limitations, and relative rights of the shares of
each class or series authorized to be issued and, if the corporation is
authorized to issue any preferred or special class in series, the variations in
the relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined and the authority of the board of
directors to fix and determine the relative rights and preferences of subsequent
series.
Section 2. Signatures. The signatures of the officers upon a
certificate may be facsimiles if the certificate is manually signed on behalf of
a transfer agent or a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issuance.
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Section 3. Lost Certificates. The board of directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the corporation alleged to have been lost or destroyed. When
authorizing such issue of a new certificate, the board of directors, in its
discretion and as a condition precedent to the issuance thereof, may prescribe
such terms and conditions as it deems expedient, and may require such
indemnities as it deems adequate, to protect the corporation from any claim that
may be made against it with respect to any such certificate alleged to have been
lost or destroyed.
Section 4. Transfers of Shares. Upon surrender to the
corporation or to the transfer agent of the corporation of a certificate
representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, a new certificate shall be
issued to the person entitled thereto and the old certificate shall be canceled
and the transaction recorded upon the books of the corporation.
Section 5. Fixing of Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend, 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 such determination of shareholders, such date in any case to be not more
than sixty days and, in the case of a meeting of shareholders, not less than ten
days prior to the date on which the particular action requiring such
determination of shareholders is to be taken.
Section 6. Registered Shareholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, 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 the corporation shall have express or other notice thereof, except as
otherwise provided by the laws of Florida.
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ARTICLE XI
MANDATORY RETIREMENT
Section 1. Unless otherwise provided in the articles of
incorporation or by statute, all members of the board of directors and all
officers of the corporation shall retire upon attaining sixty-five (65) years of
age. The resignation of a member of the board of directors pursuant to this
Section shall take effect at the annual meeting following said individual's
sixty-fifth birthday. The resignation of an officer of the corporation pursuant
to this Section shall take effect at the first meeting of the board of directors
following the officer's sixty-fifth birthday.
Section 2. Exceptions to the mandatory retirement described in
Section 1 shall be permitted only if approved by the unanimous vote of the board
of directors.
ARTICLE XII
REDEMPTION OF CONTROL SHARES
Section 1. Authorization of Redemption. In the event (i) that
no acquiring person's statement that complies with Section 607.0902 of the
Florida Business Corporation Act, or any successor statute applicable to control
share acquisitions, as presently defined in such Section 607.0902, (the "Control
Share Act") has been delivered to the corporation with respect to a control
share acquisition on or before the date of mailing a notice of redemption of
control shares pursuant to this Article XII, or (ii) that any control shares are
not accorded full voting rights by the shareholders pursuant to the Control
Share Act, the board of directors shall have the power, at its option, to cause
the corporation to redeem any or all of such control shares at the fair value
thereof, in accordance with the time and other requirements specified by the
Control Share Act with respect to corporations, the articles or by-laws of which
authorize redemption of Control Shares and by this Article XII. "Fair value" for
purposes of the preceding sentence shall be deemed to be equal to the Fair
Market Value (as hereinafter defined) per share of the class or series of which
the control shares are part immediately prior to the first public announcement
of the intent or plan of the acquiring person to make a control share
acquisition (the "Announcement Date"), and "Fair Market Value" shall be equal to
(i) the average of the reported
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closing sale prices during the period of thirty consecutive days on which such
closing sale prices are reported immediately preceding the Announcement Date if
such shares are listed on a securities exchange registered under the Exchange
Act or if closing sales prices are reported in the National Market System of the
National Association of Securities Dealers, Inc. Automatic Quotation System
("NASDAQ"), or (ii) if such shares are not listed on any such exchange or such
closing sales prices are not so reported on the National Market System, the
average of the closing bid quotations with respect to such shares during such
thirty-day period immediately preceding the Announcement Date as reported on
NASDAQ or any similar system then in common use, or (iii) if no such quotations
are available, the fair market value of such shares immediately prior to the
Announcement Date as determined by the board of directors by such other
reasonable method as the board of directors shall, in its discretion, select and
apply.
Section 2. Notice. In case the board of directors shall desire
to exercise the corporation's right to redeem control shares pursuant to this
Article XII, a notice of such redemption shall be given to the holder or holders
of record of such control shares within the time period, if any, specified by
the Control Share Act, by first-class mail, postage prepaid, not less than ten
days prior to the date fixed for such redemption (the "Redemption Date"), to
such holder's or holders' last address(es) appearing upon the stock transfer
records of the corporation. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
any such holder receives the notice, as of the date of mailing of the notice. In
any case, failure to give notice by mail to the holder of any control shares, or
any defect in such notice, shall not affect the validity of the proceedings for
the redemption of any other control share. Each such notice shall specify the
redemption price at which the control shares subject to such redemption are to
be redeemed (the "Redemption Price").
Section 3. Payment. Payment of the Redemption Price for
control shares redeemed pursuant to this Article XII shall be made upon
presentation and surrender of the certificate(s) representing the control shares
(with such instruments of transfer and other
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assurances as the board of directors may reasonably request) provided that
neither the corporation nor any director or officer of the corporation shall
have any liability, in contract or otherwise, to any person as the result of any
failure to make such payment of the Redemption Price, and the sole consequence
of such failure shall be that no such redemption shall occur on the Redemption
Date. Unless the corporation shall fail to pay the Redemption Price upon
presentation and surrender of the certificates representing control shares and
such instruments of transfer and other assurances as the board of directors may
request, from and after the Redemption Date, a holder of control shares which
are subject to redemption shall have no rights with respect to such control
shares (including no rights to vote or to receive distributions in respect
thereof with respect to matters for which the record date shall fall on or after
the Redemption Date) except the right to receive the Redemption Price (without
interest) upon compliance with the procedures specified by this Article XII.
Section 4. General. The board of directors may by resolution
specify such other procedures as may, in its discretion, be deemed necessary or
advisable for the purpose of implementing this Article XII and is hereby
empowered to determine, on the basis of the information known to it, all matters
with respect to which a determination is required under the Control Share Act in
connection with redemption of control shares.
Terms used in this Article XII and not otherwise defined
shall, unless the context otherwise requires, have the meanings assigned to them
by the Control Share Act.
ARTICLE XIII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the
articles of incorporation relating thereto, if any, dividends may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property or in shares of the corporation's
capital stock, subject to any provisions of the articles of incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors from time
to time, in their absolute
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discretion, think proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation or for such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
Section 2. Checks. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
Section 4. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its incorporation, and the
words "Corporate Seal, Florida." The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any manner reproduced.
ARTICLE XIV
INDEMNIFICATION
Section 1. Corporation to Indemnify. Except as prohibited
under Florida law or this by-law, the corporation shall indemnify any person who
was or is made a party to any proceeding by reason of the fact that he or she
was or is a director, an officer or the General Counsel of the corporation, or a
director, an officer or the General Counsel of the corporation serving as a
trustee or fiduciary of an employee benefit plan of the corporation, and the
board of directors may indemnify any employee of the corporation with respect to
such circumstances by resolution, against liability incurred in connection with
such proceeding, including an appeal thereof. This obligation to indemnify shall
not apply, however, to any person against whom the corporation has commenced any
proceeding (other than as a nominal plaintiff in a shareholder's derivative
suit), including such proceeding by way of counterclaim, cross-claim or
third-party complaint; nor shall it apply to any person who has commenced any
proceeding against the corporation or who has solicited such proceeding or who,
in furtherance thereof, has actively
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assisted, participated or intervened, or who may derive a financial or other
benefit from such proceeding.
(a) A "proceeding" includes any threatened, pending or
completed action, suit or other type of proceeding, formal or informal, whether
civil, criminal, administrative or investigative, at all stages thereof,
including appeals.
(b) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to any employee benefit plan), and reasonable expenses, including legal
and other professional fees, actually and reasonably incurred in defending a
proceeding.
Section 2. Advancement of Reasonable Expenses. (a) The
corporation shall pay reasonable expenses, including legal and other
professional fees, actually and reasonably incurred by a person with respect to
a proceeding for which he or she is entitled to be indemnified under Section 1
of this by-law in advance of the final disposition thereof ("Advance Expenses").
(b) The payment of Advance Expenses shall be on a conditional
basis only and the person's acceptance of such Advance Expenses or the benefits
thereof constitutes his or her agreement to repay such Advance Expenses in the
event and to the extent that he or she is ultimately prohibited from being
indemnified by the corporation by reason of Florida law or by this by-law. No
security shall be required with respect to the obligation to repay and payment
shall be made without reference to the person's ability to make repayment.
Section 3. Application for Indemnification and Advance
Expenses. (a) A person's application for payment of indemnification pursuant to
Section 1 or for payment of Advance Expenses pursuant to Section 2 of this
by-law shall be in writing and shall be submitted to the chairman of the board
of directors. The corporation may, but shall not be required to, make payment
pursuant to such application directly to the person or entity whom the applicant
is obliged to pay. An application for Advance Expenses shall include such
documents and other information as are reasonably available to the applicant and
as may be necessary to determine
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both the reasonableness of the expenses and whether they have been actually and
reasonably incurred.
(b) If the applicant for Advance Expenses and his or her
attorney certify to the corporation that the production of any documents or
other information as may be necessary to determine the reasonableness of the
expenses or the reasonableness of their being incurred may have the effect of
impairing or destroying the applicant's attorney-client privilege or attorney
work product protection, or both, the corporation shall make the payment applied
for without such documents or information. Such payment, however, shall be
without prejudice to the corporation's right to, upon the final disposition of
the related proceeding, obtain the documents and information which would have
been required by the corporation had the certification not been made. If such
documents and information are not promptly produced or to the extent the
production does not support the reasonableness of the expenses or that they were
reasonably incurred, the applicant shall immediately upon demand by the
corporation reimburse the corporation for the Advance Expenses paid.
Section 4. Contractual Nature of Indemnity. The provisions of
this Article XIV shall continue as to a person who has ceased to be a director,
an officer or the General Counsel of the corporation, or an employee in the case
of such employee being entitled to indemnification hereunder by reason of a
resolution of the board of directors, and shall inure to the benefit of the
heirs, personal representatives and administrators of such person. This Article
XIV shall be deemed to be a contract between the corporation and each person
who, at any time that this Article XIV is in effect, serves or served in any
capacity which entitles him or her to indemnification hereunder and any repeal
or other modification of this Article XIV or any repeal or modification of the
Florida law, or any other applicable law, shall not limit any rights of
indemnification with respect to proceedings then existing or arising out of
events, acts or omissions occurring prior to such repeal or modification,
including without limitation, the right to indemnification for proceedings
commenced after such repeal or modification to enforce this Article XIV with
regard to proceedings arising out of acts, omissions or events arising prior to
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such repeal or modification. This Article XIV applies with respect to acts or
omissions occurring on, before and after the date this by-law is adopted.
Section 5. Insurance Contracts and Funding. The corporation
may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation, or person serving in any capacity
with another corporation, partnership, joint venture, trust or other entity
(including serving as a trustee or fiduciary of any employee benefit plan)
against any expenses, liabilities or losses, whether or not the corporation
would have the power to indemnify such person against such expenses, liabilities
or losses under applicable law. The corporation may enter into contracts with
any director, officer, employee or agent of the corporation in furtherance of
the provisions of this Article XIV, and may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to insure the payment of such amounts as may be necessary to effect the
advancing of expenses and indemnification as provided in this Article XIV.
Section 6. Rights Not Exclusive. The rights conferred on any
person by this Article XIV shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
articles of incorporation, by-laws, agreement, vote of shareholders or
disinterested directors or otherwise. The corporation may, except as may be
prohibited under Florida law or this by-law, by agreement in writing, grant
indemnification to a director, officer, employee or agent of the corporation or
to any person serving at the request of the corporation in any capacity with
another corporation, partnership, joint venture, trust or other entity
(including serving as a trustee or fiduciary of any employee benefit plan).
Section 7. Protection of Rights. If a written application for
payment of indemnification under Section 1 or for payment of Advance Expenses
payable under Section 2 is not paid by the corporation in a reasonably prompt
manner, the applicant may bring an action against the corporation for the
payment thereof. If successful, in whole or in part, in such action, the
applicant shall also be entitled to be paid his or her reasonable expenses,
including attorneys' fees, thereby incurred. It shall be a defense to any such
action (other than an action brought to
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enforce an application for expenses incurred in defending any proceeding in
advance of its final disposition) that indemnification of the applicant is
prohibited by law or by this by-law, but the burden of proving such defense
shall be on the corporation. Neither the failure of the corporation (including
its board of directors or its shareholders) to have made a determination, if
required, prior to the commencement of such action that indemnification of the
applicant is proper in these circumstances, nor an actual determination by the
corporation (including its board of directors or its shareholders) that
indemnification of the applicant is prohibited or not authorized, shall be a
defense to the action or create a presumption that indemnification of the
applicant is prohibited or not authorized.
Section 8. Savings Clause. If this Article XIV or any portion
hereof shall be invalidated or held to be unenforceable on any ground by any
court of competent jurisdiction, the decision of which shall not have been
reversed on appeal, the corporation shall nevertheless indemnify each person
entitled to be indemnified under Section 1 of this by-law from liability with
respect to any proceeding to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the extent
not prohibited by Florida law.
Section 9. Secondary Obligation. The corporation's
indemnification of any person who was or is serving at its request with another
corporation, partnership, joint venture, trust or other entity (including
serving as a trustee or fiduciary of any employee benefit plan), shall be
reduced by any amounts such person may collect as indemnification from such
other party.
Section 10. Subrogation. In the event of payment made to a
person pursuant to this Article XIV, the corporation shall be subrogated to the
extent of such payment to all of the rights of recovery of such person, who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring an action to enforce such rights.
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Section 11. No Duplication of Payments. The corporation shall
not be liable under this by-law to make any payment with respect to the
liability of a person to the extent such person has otherwise actually received
payment.
ARTICLE XV
AMENDMENTS
Section 1. Alteration, Amendment and Repeal. These by-laws may
be altered, amended or repealed or new by-laws may be adopted, by the
affirmative vote of a majority of the board of directors at any regular or
special meeting of the board.
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