EXHIBIT 10.8
FORM OF
BYLAWS
OF
IVAX NYCOMED CORPORATION
A FLORIDA CORPORATION
TABLE OF CONTENTS
PAGE
----
ARTICLE I Meetings of Shareholders..................................... 1
Section 1. Annual Meeting...................................... 1
Section 2. Special Meeting..................................... 1
Section 3. Place............................................... 2
Section 4. Notice.............................................. 2
Section 5. Shareholder Quorum.................................. 2
Section 6. Shareholder Voting.................................. 3
Section 7. Fixing Record Dates................................. 3
Section 8. Proxies............................................. 3
Section 9. Notification of Nomination of Directors............. 4
Section 10. Notice of Business at Annual Meetings............... 5
ARTICLE II Directors........................................... 5
Section 1. Function............................................ 6
Section 2. Compensation........................................ 6
Section 3. Presumption of Assent............................... 6
Section 4. Number of Directors................................. 6
Section 5. Term of Office...................................... 7
Section 6. Election of Directors............................... 7
Section 7. Vacancies........................................... 7
Section 8. Removal of Directors................................ 7
Section 9. Quorum and Transaction of Business.................. 7
Section 10. Place of Meeting.................................... 8
Section 11. Time, Notice and Call of Meetings................... 8
Section 12. Action Without a Meeting............................ 8
ARTICLE III Committees.......................................... 9
Section 1. Executive Committee................................. 9
Section 2. Meetings of Executive Committee..................... 9
Section 3. Other Committees.................................... 9
ARTICLE IV Officers............................................ 10
Section 1. General Provisions.................................. 10
Section 2. Term of Office...................................... 10
Section 3. Chairman of the Board............................... 10
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Section 4. Chief Executive Officer............................. 10
Section 5. President........................................... 10
Section 6. Secretary........................................... 10
Section 7. Duties of Officers May be Delegated................. 11
Section 8. Removal of Certain Officers......................... 11
ARTICLE V Share Certificate and Seal.......................... 11
Section 1. Form and Execution.................................. 11
Section 2. Registration of Transfer............................ 12
Section 3. Lost, Stolen or Destroyed Certificates.............. 12
Section 4. Seal................................................ 12
ARTICLE VI Distributions....................................... 12
ARTICLE VII Miscellaneous Provisions............................ 13
Section 1. Fiscal Year......................................... 13
Section 2. Resignation......................................... 13
Section 3. Voting Upon Stocks of Other Corporations............ 13
ARTICLE VIII Corporate Records, Shareholders'
Inspection Rights; Financial Information............ 13
Section 1. Corporate Records................................... 13
Section 2. Shareholders' Inspection Rights..................... 14
Section 3. Financial Statements for Shareholders............... 15
Section 4. Other Reports to Shareholders....................... 15
ARTICLE IX Indemnification..................................... 16
Section 1. Right to Indemnification............................ 16
Section 2. Advancement of Expenses............................. 16
Section 3. Procedure for Indemnification and Obtaining
Advancement of Expenses........................... 16
Section 4. Other Rights, Continuation of Right to
Indemnification and Advancements.................. 17
Section 5. Insurance........................................... 17
Section 6. Savings Clause...................................... 18
ARTICLE X Amendment........................................... 18
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ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of shareholders
for the election of directors and for the transaction of such other business as
may properly come before the meeting shall be held on the date, time and place
designated by the Board of Directors.
SECTION 2. SPECIAL MEETING.
(a) Special meetings of the shareholders shall be held when
directed by the Chairman of the Board or the Board of Directors or when
requested in writing by shareholders holding at least 50% of the corporation's
stock having the right and entitled to vote at such meeting. The call for the
meeting shall be issued by the secretary, unless the Chairman of the Board, the
Board of Directors or the shareholders requesting the calling of the meeting
designate another person to do so. Only business within the purposes described
in the notice required in Section 4 of this Article I may be conducted at a
special shareholders' meeting.
(b) Any shareholder of record seeking to have the shareholders
request a special meeting may, by written notice to the secretary, request the
Board of Directors to fix a record date pursuant to Section 7 of this Article I.
The Board of Directors shall promptly, but in all events within 10 business days
after the date upon which such a request is received, adopt resolutions fixing
the record date. In the event of the delivery, in the manner provided by Section
7 of this Article I, to the corporation of such a request or requests and/or any
related revocation or revocations, the corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the requests and revocations.
Every written request for a special meeting shall set forth the purpose or
purposes for which the special meeting is requested, the name and address, as
they appear in the corporation's books, of each shareholder making the request,
the class and number of shares of the corporation which are owned of record by
each such shareholder, and shall bear the date of signature of each such
shareholder. No such request shall be effective to request such a meeting
unless, within 60 days of any record date established in accordance with Section
7 of this Article I, a written request signed by a sufficient number of record
holders as of such date to request a special meeting in accordance with Section
2(a) of this Article I and, if applicable, the Articles of Incorporation are
delivered to the corporation in the manner prescribed in this Article I. For the
purposes of permitting a prompt ministerial review by the independent
inspectors, no request by shareholders for a special meeting shall be effective
until such date as the independent inspectors certify to the corporation that
the requests delivered to the corporation in accordance with this Article I
represent at least the minimum number of shares that would be necessary to
request such meeting. Within 10 business days after the independent inspectors
deliver such a certified report to the corporation, the Board of Directors shall
adopt a resolution calling a special meeting of the shareholders and fixing a
record date for such meeting in accordance with Section 7 of this Article I. In
setting a meeting date, the Board
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of Directors may consider such factors as it deems relevant within the good
faith exercise of its business judgment including, without limitation, the
nature of the action proposed to be taken, the facts and circumstances
surrounding the request, and any plan of the Board of Directors to call a
special or annual meeting of shareholders for the conduct of related business.
Nothing contained in this section shall in any way be construed to suggest or
imply that the Board of Directors or any shareholder shall not be entitled to
contest the validity of any request or revocation thereof, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto).
SECTION 3. PLACE. Meetings of the shareholders shall be held
at the principal office of the corporation or as determined by the Chairman of
the Board, unless otherwise designated by resolution from time to time by the
Board of Directors.
SECTION 4. NOTICE. A written notice of each meeting of
shareholders, signed by the secretary, president or the person authorized to
call the meeting, shall be mailed to each shareholder having the right and
entitled to vote at the meeting at the address as it appears on the records of
the corporation, not less than 10 nor more than 60 days before the date set for
the meeting. The notice shall state the time and place the meeting is to be
held. A notice of a special meeting shall also state the purposes of the
meeting. A notice of meeting shall be sufficient for that meeting and any
adjournment of it. If a shareholder transfers any shares after the notice is
sent, it shall not be necessary to notify the transferee. All shareholders may
waive notice of a meeting before, at or after the meeting.
SECTION 5. SHAREHOLDER QUORUM. Except as otherwise required by
law, or by the Articles of Incorporation, a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at a meeting
of shareholders. Any number of shareholders, even if less than a quorum, may
adjourn the meeting from time to time and place to place without further notice
until a quorum is obtained. Except as otherwise required by law, or by the
Articles of Incorporation, a majority of the outstanding shares entitled to vote
on a matter shall be present, in person or by proxy, at all meetings of the
shareholders to constitute a quorum for the transaction of business on such
matter, except to adjourn. When a specified item of business is required to be
voted on separately by a particular class or series of stock, the presence of a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If less than a
quorum of shares entitled to vote on a matter, as above defined, shall be
present at the time and place for which a meeting shall be called, the Chairman
of the Board, chief executive officer or secretary or the holders of a majority
of the shares represented may adjourn any such meeting from time to time without
notice other than by announcement at such meeting, until the number of shares
requisite to constitute a quorum shall be present. At any adjourned meeting at
which a quorum, as above defined, shall be present, in person or by proxy, any
business may be transacted which might have been transacted at the meeting as
originally called. Once a share is represented for any
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purpose at a meeting, it is deemed present for quorum purposes for the remainder
of the meeting and for any adjournment of that meeting unless a new record date
is or must be set for that adjourned meeting.
SECTION 6. SHAREHOLDER VOTING. If a quorum is present, action
on a matter is approved and shall be the act of the shareholders if the votes
cast favoring the action exceed the votes cast against the action, except as
otherwise provided in Section 6 of Article II or the Articles of Incorporation
or as required by law. Except as otherwise provided in the Articles of
Incorporation or as required by law, each outstanding share shall be entitled to
one vote on each matter submitted to a vote at a meeting of shareholders. The
books of record of shareholders shall be produced at a shareholders' meeting
upon the request of any shareholder.
SECTION 7. FIXING RECORD DATES. For the purpose of determining
shareholders entitled (a) to notice of or to vote at any meeting of shareholders
or any adjournment thereof, (b) to request a special meeting of shareholders
pursuant to Section 2 of this Article I, (c) to receive payment of any dividend,
or (d) to make a determination of shareholders for any other proper purpose, the
Board of Directors shall have the power to fix a date, not more than 60 days (or
such longer period as may be permitted by current or future law) prior to the
date on which the particular action requiring a determination of shareholders is
to be taken, as the record date for any such determination of shareholders. A
record date for the determination of shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof shall not be a
date less than 10 days prior to such meeting. In setting a record date, whether
in response to a request from a shareholder or otherwise, the Board of Directors
may consider such factors as it deems relevant within the good faith exercise of
its business judgment including, without limitation, the nature of the action
proposed to be taken, the facts and circumstances surrounding the request, and
any plan of the Board of Directors to call a special or annual meeting of
shareholders for the conduct of related business. In any case where a record
date is set under any provision of this Article I, only shareholders of record
on the record date shall be entitled to participate in the action for which the
determination of shareholders of record is made, and, if the record date is set
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, only such shareholders of record shall be entitled to
such notice or vote, notwithstanding any transfer of any shares on the books of
the corporation after such record date.
SECTION 8. PROXIES. A shareholder entitled to vote at any
meeting of shareholders or any adjournment thereof may vote in person or by
proxy executed in writing and signed by the shareholder or his attorney-in-fact.
The appointment of proxy will be effective when received by the corporation's
secretary or other officer or agent authorized to tabulate votes. If a proxy
designates two or more persons to act as proxies, a majority of these persons
present at the meeting, or if only one is present, that one, has all of the
powers conferred by the instrument upon all the persons designated unless the
instrument otherwise provides. No proxy
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shall be valid more than 11 months after the date of its execution unless a
longer term is expressly stated in the proxy.
SECTION 9. NOTIFICATION OF NOMINATION OF DIRECTORS.
Nominations for election to the Board of Directors of the corporation at a
meeting of shareholders may be made by the Board of Directors or by any
shareholder of the corporation entitled to vote for the election of directors at
such meeting who complies with the notice procedures set forth in this Section
10. Such nominations, other than those made by or on behalf of the Board of
Directors, may be made only if notice in writing is personally delivered to, or
mailed by first class United States mail, postage prepaid, and received by, the
secretary not less than 60 days nor more than 90 days prior to such meeting;
PROVIDED, HOWEVER, that if less than 70 days' notice or prior public disclosure
of the date of the meeting is given to shareholders, such nomination shall have
been mailed by first class United States mail, postage prepaid, and received by,
or personally delivered to, the secretary not later than the close of business
on the tenth (10th) day following the day on which notice of the date of the
meeting was mailed or such public disclosure was made, whichever occurs first.
Such notice shall set forth (a) as to each proposed nominee (i) the name, age,
business address and, if known, residence address of each such nominee, (ii) the
principal occupation or employment of each such nominee, (iii) the number of
shares, if any, of stock of the corporation that are beneficially owned by each
such nominee and (iv) any other information concerning the nominee that must be
disclosed in proxy solicitations pursuant to the proxy rules of the Securities
and Exchange Commission if such person had been nominated, or was intended to be
nominated, by the Board of Directors (including such person's written consent to
be named as a nominee and to serve as a director if elected); and (b) as to the
shareholder giving the notice (i) the name and address, as it appears on the
corporation's books, of such shareholder, (ii) a representation that such
shareholder is a holder of record of shares of stock of the corporation entitled
to vote at the meeting and the class and number of shares of the corporation
which are beneficially owned by such shareholder, (iii) a representation that
such shareholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice and (iv) a description of
all arrangements or understandings between such shareholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by such shareholder. The
corporation also may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting, and that the defective nomination shall be
disregarded.
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SECTION 10. NOTICE OF BUSINESS AT ANNUAL MEETINGS. At an
annual meeting of the shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (c) otherwise properly brought before the
meeting by a shareholder. For business to be properly brought before an annual
meeting by a shareholder, if such business relates to the election of directors
of the corporation, the procedures must comply with Section 10 of this Article
I. If such business relates to any other matter, the shareholder must have given
timely notice thereof in writing to the secretary. To be timely, a shareholder's
notice must be personally delivered to, or mailed by first class United States
mail, postage prepaid, and received by, the secretary not less than 60 days not
more than 90 days prior to such meeting; PROVIDED, HOWEVER, that if less than 70
days' notice or prior public disclosure of the date of the meeting is given to
shareholders, such notice, to be timely, must have been mailed by first class
United States mail, postage prepaid, and received by, or personally delivered
to, the secretary not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the meeting was mailed or such
public disclosure was made, whichever occurs first. A shareholder's notice to
the secretary shall set forth as to each matter the shareholder proposes to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the
corporation's books, of the shareholder proposing such business, (iii) a
representation that the shareholder is a holder of record of shares of stock of
the corporation entitled to vote at the meeting and the class and number of
shares of the corporation which are beneficially owned by the shareholder and
(iv) any material interest of the shareholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at any
annual meeting except in accordance with the procedures set forth in this
Section 11 and except that any shareholder proposal which complies with Rule
14a-8 of the proxy rules (or any successor provision) promulgated under the
Securities Exchange Act of 1934, as amended, and is to be included in the
corporation's proxy statement for an annual meeting of shareholders shall be
deemed to comply with the requirements of this Section 11.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and the business not properly
brought before the meeting shall be disregarded.
ARTICLE II
DIRECTORS
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SECTION 1. FUNCTION. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the corporation
shall be managed under the direction of, the Board of Directors. Directors must
be natural persons who are at least 18 years of age but need not be residents of
Florida or shareholders of the corporation.
SECTION 2. COMPENSATION. The directors, as such, shall be
entitled to receive such reasonable compensation for their services as may be
fixed from time to time by resolution of the Board of Directors. In addition,
the directors may be reimbursed for expenses of attending meetings of the Board
of Directors and committees thereof. Nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of the executive committee or of any
standing or special committee of the Board of Directors may by resolution of the
Board be allowed such compensation for their services as the Board of Directors
may deem reasonable, and additional compensation may be allowed to directors for
special services rendered.
SECTION 3. PRESUMPTION OF ASSENT. A director who is present at
a meeting of the Board of Directors or a committee of the Board of Directors at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless he objects at the beginning of the meeting (or
promptly upon arriving) to the holding of the meeting or transacting the
specified business at the meeting, or if the director votes against the action
taken or abstains from voting because of an asserted conflict of interest.
SECTION 4. NUMBER OF DIRECTORS. The Board of Directors of the
corporation shall consist of an even number of persons not less than two, the
exact number to be determined from time to time by resolution adopted by the
affirmative vote of a majority of all directors of the corporation then holding
office at any special or regular meeting. Until the third anniversary of the
Effective Time (as defined in the Transaction Agreement dated as of October 18,
1995 among Hafslund Nycomed AS, IVAX Corporation and the Company), (a) all those
directors initially nominated by IVAX Corporation or their successors are herein
referred to as the "Ivax Continuing Directors" and all those directors initially
nominated by Hafslund Nycomed AS or their successors are herein referred to as
the "Nycomed Continuing Directors"; (b) in the event the number of directors is
reduced from time to time, the number of Ivax Continuing Directors and Nycomed
Continuing Directors shall be correspondingly reduced, so that at any time prior
thereto there shall be an equal number of Ivax Continuing Directors and Nycomed
Continuing Directors; (c) the number of directors of the corporation, as so
determined from time to time, is herein referred to as the "Whole Board"; and
(d)(i) the Ivax Continuing Directors shall, acting as a nominating committee of
the Board, propose for election by the shareholders those person intended to
fill any vacancy caused by the expiration of the term, death, disability or
resignation of any Ivax Continuing Director and (ii) the Nycomed Continuing
Directors shall, acting as a nominating Committee of the Board, propose for
election by the shareholders those persons intended to fill any vacancy caused
by the expiration of the term, death, disability or resignation
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of any Nycomed Continuing Director. Any such resolution increasing or decreasing
the number of directors shall have the effect of creating or eliminating a
vacancy or vacancies, as the case may be, provided that no such resolution shall
reduce the number of directors below the number then holding office.
SECTION 5. TERM OF OFFICE. Each director shall hold office
until the annual meeting next succeeding his election and until his successor is
elected and qualified, or until his earlier resignation, removal from office or
death.
SECTION 6. ELECTION OF DIRECTORS. Directors shall be elected
at the annual meeting of shareholders, but when the annual meeting is not held
or directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Directors shall be elected by a plurality of
the votes cast by the shares entitled to vote in the election at a meeting at
which a quorum is present.
SECTION 7. VACANCIES. Until the third anniversary of the
Effective Time, any vacancy occurring in the Board of Directors (a) as a result
of the death, disability or resignation of any Ivax Continuing Director shall be
filled by the remaining Ivax Continuing Directors; (b) as a result of the death,
disability or resignation of any Nycomed Continuing Director shall be filled by
the remaining Nycomed Continuing Directors; and (c) half of the number of any
vacancies created by an increase in the number of directors shall be filled by
the Ivax Continuing Directors and half of the number of any such vacancies shall
be filled by the Nycomed Continuing Directors. Subject to the foregoing, any
vacancy occurring in the Board of Directors, including a vacancy created by an
increase in the number of directors, may be filled by the shareholders or by the
affirmative vote of a majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a vacancy shall
hold office only until the next election of directors by the shareholders. If
there are no remaining directors, the vacancy shall be filled by the
shareholders.
SECTION 8. REMOVAL OF DIRECTORS. At a meeting of shareholders,
any director or the entire Board of Directors may be removed, with or without
cause, provided the notice of the meeting states that one of the purposes of the
meeting is the removal of the director. A director may be removed only if the
number of votes cast to remove him exceeds the number of votes cast against
removal.
SECTION 9. QUORUM AND TRANSACTION OF BUSINESS. A majority of
the number of directors fixed pursuant to these Bylaws shall constitute a quorum
for the transaction of business, except that a majority of the directors in
office shall constitute a quorum for filling a vacancy on the Board. Whenever
less than a quorum is present at the time and place appointed for any meeting of
the Board, a majority of those present may adjourn the meeting from time to time
and place to place, until a quorum shall be present and no notice of any such
adjourned
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meeting shall be required. The act of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 10. PLACE OF MEETING. Regular and special meetings of
the Board of Directors shall be held at the principal office of the corporation
or as determined by the Chairman of the Board, unless otherwise designated by
resolution from time to time by the Board of Directors.
SECTION 11. TIME, NOTICE AND CALL OF MEETINGS. Regular
meetings of the Board of Directors shall be held without notice at the time and
on the date designated by resolution of the Board of Directors. Meetings of the
Board of Directors may be called by the Chairman of the Board. Upon determining
the need for a special meeting, the Chairman of the Board shall direct the
secretary of the corporation to provide written notice of the time, date and
place of such special meeting of the Board of Directors to each director by
personal delivery, mail delivery or by fascimile at least two but not more than
15 days before the meeting. Notice of a meeting of the Board of Directors need
not be given to a director who signs a waiver of notice either before or after
the meeting. Attendance of a director at a meeting constitutes a waiver of
notice of that meeting and waiver of all objections to the place of the meeting,
the time of the meeting, and the manner in which it has been called or convened,
except when a director states at the beginning of the meeting or promptly upon
arrival at the meeting, objection to the transaction of business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors must be specified in the notice or waiver of notice of the meeting.
A majority of the directors present, whether or not a quorum exists, may adjourn
any meeting of the Board of Directors to another time and place. Notice of an
adjourned meeting shall be given to the directors who were not present at the
time of the adjournment and, unless the time and place of the adjourned meeting
are announced at the time of the adjournment, to the other directors. Members of
the Board of Directors (and any committee of the Board) may participate in a
meeting of the Board (or committee) by means of a conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other at the same time. Participation by these means
constitutes presence in person at a meeting.
SECTION 12. ACTION WITHOUT A MEETING. Any action required to
be taken at a meeting of the Board of Directors (or a committee of the Board),
and any action which may be taken at a meeting of the Board of Directors (or a
committee of the Board) may be taken without a meeting if a consent in writing,
setting forth the action to be taken and signed by all of the directors (or
members of the committee), is filed in the minutes of the proceedings of the
Board of Directors. The action taken shall be deemed effective when the last
director signs the consent, unless the consent specifies otherwise.
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ARTICLE III
COMMITTEES
SECTION 1. EXECUTIVE COMMITTEE. The Board of Directors may
from time to time, by resolution passed by a majority of the whole Board, create
an executive committee of three or more directors, the members of which shall be
elected by the Board of Directors to serve at the pleasure of the Board. If the
Board of Directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own members. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the Board of
Directors, possess and may exercise all of the powers of the Board of Directors
in the management of the business and affairs of the corporation, other than
that of filling vacancies among the directors or in any committee of the
directors and except as required by law. The executive committee shall keep full
records and accounts of its proceedings and transactions. All action by the
executive committee shall be reported to the Board of Directors at its meeting
next succeeding such action and shall be subject to control, revision and
alteration by the Board of Directors, provided that no rights of third persons
shall be prejudicially affected thereby. Vacancies in the executive committee
shall be filled by the directors, and the directors may appoint one or more
directors as alternate members of the committee who may take the place of any
absent member or members at any meeting.
SECTION 2. MEETINGS OF EXECUTIVE COMMITTEE. Subject to the
provisions of these Bylaws, the executive committee shall fix its own rules of
procedure and shall meet as provided by such rules or by resolutions of the
Board of Directors, and it shall also meet at the call of the Chairman of its
Board, the chairman of the executive committee or any two members of the
committee. Unless otherwise provided by such rules or by such resolutions, the
provisions of Section 11 of Article II relating to the notice required to be
given for meetings of the Board of Directors shall also apply to meetings of the
executive committee. A majority of the executive committee shall be necessary to
constitute a quorum.
SECTION 3. OTHER COMMITTEES. The Board of Directors may by
resolution provide for such other standing or special committees as it deems
desirable, and discontinue the same at its pleasure. Each such committee shall
have such powers and perform such duties, not inconsistent with law, as may be
delegated to it by the Board of Directors. The provisions of Section 1 and
Section 2 of this Article III shall govern the appointment and action of such
committee so far as consistent, unless otherwise provided by the Board of
Directors. Vacancies in such committees shall be filled by the Board of
Directors or as the Board of Directors may provide.
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ARTICLE IV
OFFICERS
SECTION 1. GENERAL PROVISIONS. The Board of Directors shall
appoint a Chairman of the Board of Directors, a president, a chief executive
officer, and a secretary, provided that a person may hold more than one such
office. The Board of Directors may from time to time create such offices and
appoint such other officers, subordinate officers and assistant officers as it
may determine. The Chairman of the Board, shall be, but the other officers need
not be, chosen from among the members of the Board of Directors. Each such
officer shall hold office at the pleasure of the Board of Directors, and perform
such duties as the Board of Directors may prescribe. The Board of Directors may,
from time to time, authorize any officer to appoint and remove subordinate and
assistant officers, to prescribe their authority and duties, and to fix their
compensation.
SECTION 2. TERM OF OFFICE. The officers of the corporation
shall hold office at the pleasure of the Board of Directors, and, unless sooner
removed by the Board of Directors, until the annual meeting of the Board of
Directors following the date of their appointment and until their successors are
chosen and qualified. The Board of Directors may remove any officer at any time,
with or without cause. A vacancy in any office created shall be filled by the
Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board of Directors and meetings of
shareholders and shall be the senior officer of the corporation and, subject to
the control of the Board of Directors, shall exercise supervision over the
management of the business of the corporation.
SECTION 4. CHIEF EXECUTIVE OFFICER. The chief executive
officer shall exercise supervision over the management of the business of the
corporation and its several officers, subject, however, to the oversight of the
Chairman of the Board and the Board of Directors. In the absence of the Chairman
of the Board, he shall preside at meetings of the shareholders.
SECTION 5. PRESIDENT. The president shall exercise supervision
over the business of the corporation and over its several officers, subject,
however, to the oversight of the Chairman of the Board and the chief executive
officer. In the absence of the Chairman of the Board and chief executive
officer, he shall preside at meetings of the shareholders.
SECTION 6. SECRETARY. The secretary shall keep minutes of all
the proceedings of the shareholders and the Board of Directors and shall make
proper record of the same, which shall be attested by him; shall have authority
to execute and deliver certificates as to any of such proceedings and any other
records of the corporation; shall give notice of meetings of shareholders and
directors; shall produce on request at each meeting of shareholders a certified
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list of shareholders arranged in alphabetical order; shall keep such books and
records as may be required by law or by the Board of Directors; and, in general,
shall perform all duties incident to the office of secretary and such other
duties as may from time to time be assigned to him by the Board of Directors or
the president.
SECTION 7. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence
of any officer of the corporation, or for any other reason the Board of
Directors may deem sufficient, the Board of Directors may delegate, for such
period of time as the Board of Directors deem appropriate, the powers or duties,
or any of them, of such officers to any other officer or to any director.
SECTION 8. REMOVAL OF CERTAIN OFFICERS. Neither the Chairman,
the President nor the Chief Executive Officer may be removed from office unless
such removal shall have first been approved by a majority of the whole Board.
ARTICLE V
SHARE CERTIFICATE AND SEAL
SECTION 1. FORM AND EXECUTION. Certificates for shares,
certifying the number of fully-paid shares owned, shall be issued to each
shareholder in such form as shall be approved by the Board of Directors. Such
certificates shall be signed by the Chairman of the Board or the president or a
vice president and by the secretary or the treasurer; provided, however, that if
such certificates are countersigned by a transfer agent and/or registrar the
signatures of any of said officers and the seal of the corporation upon such
certificates may be facsimiles, engraved, stamped or printed. If any officer or
officers who shall have signed, or whose facsimile signature shall have been
used, printed or stamped on any certificate or certificates for shares, shall
cease to be such officer or officers, because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the corporation, such certificate or certificates, if authenticated by the
endorsement thereon of the signature of a transfer agent or registrar, shall
nevertheless be conclusively deemed to have been adopted by the corporation by
the use and delivery thereof and shall be as effective in all respects as though
signed by a duly elected, qualified and authorized officer or officers, and as
though the person or persons who signed such certificate or certificates, or
whose facsimile signature or signatures shall have been used thereon, had not
ceased to be an officer or officers of the corporation. The failure of the
corporation to note upon a certificate a restriction on the transfer of shares
imposed or which may be imposed by law, contract or otherwise, shall not be
deemed to imply that such shares are free of any such restriction or create in
favor of the person to whom such certificate
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is issued, or any successor, assign, devise or heir of such recipient, any cause
of action of any nature against the corporation.
SECTION 2. REGISTRATION OF TRANSFER. Any certificate for
shares of the corporation shall be transferable (subject to any applicable
restrictions imposed or which may be imposed by law, contract or otherwise) in
person or by attorney upon the surrender thereof to the corporation or any
transfer agent therefor (for the class of shares represented by the certificate
surrendered) properly endorsed for transfer and accompanied by such assurances
as the corporation or such transfer agent may require as to the genuineness and
effectiveness of each necessary endorsement.
SECTION 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The
corporation shall, upon the authorization of the Chairman of the Board, the
secretary or such other person as is authorized by resolution of the Board of
Directors, issue a new stock certificate in the place of any certificate
previously issued if the holder of record of the certificate (a) makes proof in
affidavit form that it has been lost, destroyed or wrongfully taken; (b)
requests the issue of a new certificate before the corporation has notice that
the certificate has been acquired by a purchaser for value in good faith and
without notice of any adverse claim; (c) gives bond in such form as the
corporation may direct to indemnify the corporation and any transfer agent and
registrar against any claim that may be made on account of the alleged loss,
destruction, or theft of a certificate; and (d) satisfies any other reasonable
requirements imposed by the corporation.
SECTION 4. SEAL. The corporate seal shall be circular in form
and include the name of the corporation.
ARTICLE VI
DISTRIBUTIONS
The Board of Directors may, from time to time, declare
distributions to its shareholders in cash, property, or its own shares, unless
the distribution would cause (i) the corporation to be unable to pay its debts
as they become due in the usual course of business, or (ii) the corporation's
assets to be less than its liabilities plus the amount necessary, if the
corporation were dissolved at the time of the distribution, to satisfy the
preferential rights of shareholders whose rights are superior to those receiving
the distribution. The shareholders and the corporation may enter into an
agreement requiring the distribution of corporate profits, subject to the
provisions of applicable law.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the corporation
shall be the calendar year.
SECTION 2. RESIGNATION. Any director or officer of the
corporation may resign his office at any time upon presenting his written
resignation to the Board of Directors, the Chairman of the Board, the chief
executive officer, the chief operating officer, the president or the secretary,
and, unless some time be fixed in such resignation as the date upon which it is
to become effective, the same shall become effective immediately upon
presentation. The acceptance of a resignation shall not be required to make it
effective, unless otherwise so stated in such resignation, and in that event it
shall become effective at the pleasure of the Board.
SECTION 3. VOTING UPON STOCKS OF OTHER CORPORATIONS. Unless
otherwise ordered by the Board of Directors, the Chairman of the Board, the
chief executive officer, the chief operating officer, or the president shall, in
the order above stated, have full power and authority on behalf of the
corporation to attend, act and vote at any meeting or meetings of shareholders
of any corporation in which this corporation may hold stock or other securities,
and at any such meeting shall possess and may exercise on behalf of the
corporation any and all of the rights and powers incident to the ownership of
such stock or other securities. The person having the power and authority as set
forth above may in his discretion delegate same to another person that he
designates to act on behalf of the corporation at any given meeting. The Board
of Directors, by resolution, may from time to time confer like powers upon any
other person or persons.
ARTICLE VIII
CORPORATE RECORDS, SHAREHOLDERS'
INSPECTION RIGHTS; FINANCIAL INFORMATION
SECTION 1. CORPORATE RECORDS.
(a) The corporation shall keep as permanent records minutes of
all meetings of its shareholders and Board of Directors, a record of all actions
taken by the shareholders or Board of Directors without a meeting, and a record
of all actions taken by a committee of the Board of Directors on behalf of the
corporation.
(b) The corporation shall maintain accurate accounting records
and a record of its shareholders in a form that permits preparation of a list of
the names and addresses of all shareholders in alphabetical order by class of
shares showing the number and series of shares
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held by each.
(c) The corporation shall keep a copy of: (i) its articles or
restated articles of incorporation and all amendments to them currently in
effect; (ii) these Bylaws or restated Bylaws and all amendments currently in
effect; (iii) resolutions adopted by the Board of Directors creating one or more
classes or series of shares and fixing their relative rights, preferences, and
limitations, if shares issued pursuant to those resolutions are outstanding;
(iv) the minutes of all shareholders' meetings and records of all actions taken
by shareholders without a meeting for the past three years; (v) written
communications to all shareholders generally or all shareholders of a class of
series within the past three years, including the financial statements furnished
for the last three years; (vi) a list of names and business street addresses of
its current directors and officers; and (vii) its most recent annual report
delivered to the Department of State.
(d) The corporation shall maintain its records in written form
or in another form capable of conversion into written form within a reasonable
time.
SECTION 2. SHAREHOLDERS' INSPECTION RIGHTS. A shareholder is
entitled to inspect and copy, during regular business hours at the corporation's
principal office, any of the corporate records described in Section 1(c) of this
Article if the shareholder gives the corporation written notice of the demand at
least 5 business days before the date on which he wishes to inspect and copy the
records.
A shareholder is entitled to inspect and copy, during regular
business hours at a reasonable location specified by the corporation, any of the
following records of the corporation if the shareholder gives the corporation
written notice of this demand at least 5 business days before the date on which
he wishes to inspect and copy provided (a) the demand is made in good faith and
for a proper purpose; (b) the shareholder describes with reasonable
particularity the purpose and the records he desires to inspect; and (c) the
records are directly connected with the purpose: (i) excerpts from minutes of
any meeting of the Board of Directors, records of any action of a committee of
the Board of Directors while acting in place of the Board on behalf of the
corporation; (ii) accounting records; (iii) the record of shareholders; and (iv)
any other books and records of the corporation.
This Section 2 does not affect the right of a shareholder to
inspect and copy the shareholders' list described in Section 6 of Article I, if
the shareholder is in litigation with the corporation to the same extent as any
other litigant or the power of a court to compel the production of corporate
records for examination.
The corporation may deny any demand for inspection if the
demand was made for an improper purpose, or if the demanding shareholder has
within the two years preceding his
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demand, sold or offered for sale any list of shareholders of the corporation or
of any other corporation, has aided or abetted any person in procuring any list
of shareholders for that purpose, or has improperly used any information secured
through any prior examination of the records of this corporation or any other
corporation.
SECTION 3. FINANCIAL STATEMENTS FOR SHAREHOLDERS. Unless
modified by resolution of the shareholders within 120 days after the close of
each fiscal year, the corporation shall furnish its shareholders with annual
financial statements which may be consolidated or combined statements of the
corporation and one or more of its subsidiaries, as appropriate, that include a
balance sheet as of the end of the fiscal year, an income statement for that
year, and a statement of cash flows for that year. If financial statements are
prepared for the corporation on the basis of generally accepted accounting
principles, the annual financial statements must also be prepared on that basis.
If the annual financial statements are reported upon by a
public accountant, his report must accompany them. If not, the statements must
be accompanied by a statement of the chief financial officer or the person
responsible for the corporation's accounting records stating his reasonable
belief whether the statements were prepared on the basis of generally accepted
accounting principles and, if not, describing the basis of preparation and
describing any respects in which the statements were not prepared on a basis of
accounting consistent with the statements prepared for the preceding year.
The corporation shall mail the annual financial statements to
each shareholder within 120 days after the close of each fiscal year or within
such additional time thereafter as is reasonably necessary to enable the
corporation to prepare its financial statements. Thereafter, on written request
from a shareholder who was not mailed the statements, the corporation shall mail
him the latest annual financial statements.
SECTION 4. OTHER REPORTS TO SHAREHOLDERS. If the corporation
indemnifies or advances expenses to any director, officer, employee or agent
otherwise than by court order or action by the shareholders or by an insurance
carrier pursuant to insurance maintained by the corporation, the corporation
shall report the indemnification or advance in writing to the shareholders with
or before the notice of the next annual shareholders' meeting, or prior to the
meeting if the indemnification or advance occurs after the giving of the notice
but prior to the time the annual meeting is held. This report shall include a
statement specifying the persons paid, the amounts paid, and the nature and
status at the time of such payment of the litigation or threatened litigation.
If the corporation issues or authorizes the issuance of shares
for promises to render services in the future, the corporation shall report in
writing to the shareholders the number of shares authorized or issued, and the
consideration received by the corporation, with
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or before the notice of the next shareholders' meeting.
ARTICLE IX
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. Each person (including
here and hereinafter, the heirs, executors, administrators, or estate of such
person) (i) who is or was a director or officer of the corporation, (ii) who is
or was an agent or employee of the corporation other than an officer and as to
whom the corporation has agreed to grant such indemnity, or (iii) who is or was
serving at the request of the corporation as its representative in the position
of director, officer, agent or employee of another corporation, partnership,
joint venture, trust or other enterprise and as to whom the corporation has
agreed to grant such indemnity shall be indemnified by the corporation as of
right to the fullest extent permitted or authorized by current or future
legislation or by current or future judicial or administrative decision (but, in
the case of any such future legislation or decision, only to the extent that it
permits the corporation to provide broader indemnification rights than permitted
prior to such legislation or decision), against any liability or expense,
awarded or assessed against him, or incurred by him, in his capacity as such
director, officer, agent, employee or representative, or arising out of his
status as such director, officer, agent, employee, or representative, including
(in the case of derivative actions) expenses and amounts paid by him in
settlement of any proceeding asserted or brought against him in his aforesaid
capacity or arising out of his status as such.
SECTION 2. ADVANCEMENT OF EXPENSES. Expenses incurred by a
person referred to in Section 1 of this Article IX in defending a civil or
criminal proceeding shall be paid by the corporation in advance of the final
disposition of such proceeding, (i) upon receipt, in the case of a director or
officer, of an undertaking by or on behalf of the director or officer to repay
all amounts so advanced if he is ultimately found not to be entitled to be
indemnified by the corporation pursuant to this Article IX, and (ii) upon
satisfaction of such other conditions as are required by current or future
legislation (but, with respect to future legislation, only to the extent that it
provides conditions less burdensome to the director, officer, employee, agent or
representative, and to the corporation, than those provided previously). Such
expenses incurred by other employees, agents and representatives may be so paid
upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may, in the manner set forth above, and upon
approval of such director, officer, employee, agent or representative of the
corporation, authorize the corporation's counsel to represent such person, in
any proceeding, whether or not the corporation is a party to such proceeding.
SECTION 3. PROCEDURE FOR INDEMNIFICATION AND OBTAINING
ADVANCEMENT OF EXPENSES. Any indemnification of liabilities and expenses or
advancement of expenses under this Article shall be made promptly, and in any
event within 60 days, upon the written request
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of the director, officer, employee, agent or representative seeking
indemnification or an advancement. If the corporation denies such request in
whole or in part or if no disposition thereof is made within 60 days of its
receipt of such request or if the corporation otherwise fails to provide
indemnification or advancement provided for in this Article IX, and despite any
contrary determination by the corporation (including its Board of Directors or a
committee thereof, its independent legal counsel or its shareholders) in the
specific case, a director, officer, employee, agent or representative may apply
for indemnification or advancement, or both, in an appropriate proceeding
brought in a court of competent jurisdiction and shall be entitled to such
indemnification or advancement, or both, as the court shall by order direct.
Such person's reasonable expenses in obtaining court-ordered indemnification or
advancement shall be reimbursed by the corporation. No such contrary
determination by the corporation (including the Board of Directors or a
committee thereof, its independent legal counsel or its shareholders) shall be a
defense to such proceeding or create a presumption that the claimant has not met
the applicable standard of conduct, if any, for indemnification or an
advancement.
SECTION 4. OTHER RIGHTS, CONTINUATION OF RIGHT TO
INDEMNIFICATION AND ADVANCEMENTS. The indemnification and advancements provided
by this Article IX shall not be deemed exclusive of any other or further rights
to which a person seeking indemnification or advancements may be entitled under
any law (common or statutory), agreement, vote of shareholders or disinterested
directors or otherwise, either as to action taken or omitted to be taken in his
official capacity or as to action taken or omitted to be taken in another
capacity while holding office or while employed by or acting as agent for the
corporation. All rights to indemnification and to advancements of expenses under
this Article IX shall be deemed to be a contract between the corporation and
each director, officer, employee, agent or representative of the corporation
described in Section 1 of this Article IX who serves or has served in any such
capacity at any time while this Article IX is in effect.
Any repeal or modification of this Article IX, or any repeal or
modification of relevant provisions of the Florida Business Corporation Act or
any other applicable law, shall not in any way diminish any right to
indemnification or to advancement of expenses of such director, officer,
employee, agent or representative, or the obligations of the corporation,
arising hereunder.
SECTION 5. INSURANCE. The corporation may purchase and
maintain insurance, at its expense, to protect itself and any person who is or
was or has agreed to become a director, officer, employee or agent of the
corporation, or is or was 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 liability asserted against him
and incurred by him or on his behalf in any such capacity, or arising out of his
status as such, whether or not the corporation would have the legal power to
directly indemnify him against such liability.
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SECTION 6. SAVINGS CLAUSE. If this Article IX or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall nevertheless indemnify each director
and officer, and each employee, agent and representative of the corporation
described in Section 1 of this Article IX, as to liabilities and expenses, and
amounts paid in settlement with respect to any proceeding, including any action
by or in the right of the corporation, to the full extent permitted by any
applicable portion of this Article IX that shall not have been invalidated and
to the full extent permitted by applicable law.
SECTION 7. TERMS. For purposes of this Article IX, the term
"other enterprises" includes employee benefit plans; the term "expenses"
includes counsel fees, including those for appeal; 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 expenses actually
and reasonably incurred with respect to a proceeding; the term "proceeding"
includes any threatened, pending, or completed action, suit, or other type of
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal; the term "agent" includes a volunteer; and the term
"serving at the request of the corporation" includes any service as a director,
officer, employee or agent of the corporation that imposes duties on such
persons, including duties relating to an employee benefit plan and its
participants or beneficiaries.
ARTICLE X
AMENDMENT
These Bylaws may be altered, amended or repealed, and new
Bylaws adopted, by the Board of Directors or shareholders, except that until the
third anniversary of the Effective Time, Article IV, Section 8 may not be
amended by the Board of Directors unless first approved by a majority of the
number of directors constituting the Whole Board.