EXHIBIT 3.4
FORM OF
AMENDED AND RESTATED BYLAWS
OF
OUTSOURCE INTERNATIONAL, INC.
ARTICLE I
SHAREHOLDERS
Section 1.1 ANNUAL MEETINGS. An annual meeting of shareholders shall be
held for the election of Directors on the fourth Friday in April at 10:00 a.m.
at the offices of the Corporation, or at such other date, time and place either
within or without the State of Florida as may be designated by the Board of
Directors from time to time. To the extent notice has been provided in
accordance with sections 1.4 and 1.12, any other proper business may be
transacted at the annual meeting.
Section 1.2 SPECIAL MEETINGS. Special meetings of the shareholders of the
Corporation for any purpose or purposes may be called at any time by (i) the
Chairman of the Board of Directors, the President of the Corporation or a
majority of the Board of Directors or (ii) upon delivery of one or more written
demands for a meeting describing the purpose or purposes for the meeting and
signed and dated by the holders of not less than 50 percent (50%) of all votes
entitled to be cast on any issue proposed to be considered at such special
meeting. Special meetings of shareholders of the Corporation may not be called
by any other person or persons. At any special meeting of shareholders, only
such business shall be conducted, and only such proposals shall be acted upon,
as shall be set forth in the notice of such special meeting.
Section 1.3 SHAREHOLDER ACTION. Any action required or permitted to be
taken at any annual or special meeting of the shareholders of the Corporation
may be taken only upon the vote of shareholders at a duly convened meeting of
shareholders in accordance with the Articles of Incorporation and these Bylaws,
and may not be taken by written consent of shareholders.
Section 1.4 NOTICE OF MEETINGS. Whenever shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each shareholder entitled to vote at such meeting. If
mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the shareholder at such shareholders'
addresses as they appear on the records of the Corporation.
Section 1.5 ADJOURNMENTS. Any meeting of shareholders, annual or special,
may be adjourned from time to time, to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.6 QUORUM. At each meeting of shareholders, except where otherwise
provided by law or the Articles of Incorporation or these Bylaws, the holders of
a majority of the outstanding shares of stock entitled to vote on a matter at
the meeting, present in person or represented by proxy, shall constitute a
quorum. For purposes of the foregoing, where a separate vote by class or classes
is required for any matter, the holders of a majority of the outstanding shares
of such class or classes, present in person or represented by proxy, shall
constitute a quorum to take action with respect to that vote on that matter. Two
or more classes or series of stock shall be considered a single class if the
holders thereof are entitled to vote together as a single class at the meeting.
In the absence of a quorum of the holders of any class of stock entitled to vote
on a matter, the holders of such class so present or represented may, by
majority vote, adjourn the meeting of such class from time to time in the manner
provided by Section 1.5 of these Bylaws until a quorum of such class shall be so
present or represented. Shares of its own capital stock belonging on the record
date for the meeting to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of Directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.7 ORGANIZATION. Meetings of shareholders shall be presided over
by the Chairman of the Board of Directors, if any, or in the absence of the
Chairman of the Board of Directors by the Vice Chairman of the Board of
Directors, if any, or in the absence of the Vice Chairman of the Board of
Directors by the President, or in the absence of the President, by a Vice
President, or in the absence of the foregoing persons by a chairman designated
by the Board of Directors, or in the absence of such designation by a chairman
chosen at the meeting. The Secretary, or in the absence of the Secretary an
Assistant Secretary, shall act as secretary of the meeting, but in the absence
of the Secretary and any Assistant Secretary, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments
2
on the affairs of the Corporation, restrictions on entry to such meeting after
the time prescribed for the commencement thereof and the opening and closing of
the voting polls.
Section 1.8 INSPECTORS. Prior to any meeting of shareholders, the Board of
Directors or the President shall appoint one or more inspectors to act at such
meeting and make a written report thereof and may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at the meeting of shareholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in
the performance of their duties. The time of the opening and closing of the
polls for each matter upon which the shareholders will vote at a meeting shall
be announced at the meeting. No ballot, proxy or vote, nor any revocation
thereof or change thereto, shall be accepted by the inspectors after the closing
of the polls. In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a shareholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the shareholder, ballots and the
regular books and records of the corporation, and they may also consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by the
record owner to cast or more votes than the shareholder holds of record. If the
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.9 VOTING; PROXIES. Unless otherwise provided in the Articles of
Incorporation, each shareholder entitled to vote at any meeting of shareholders
shall be entitled to one vote for each share of stock held by such shareholder
which has voting power upon the matter in question. If the Articles of
Incorporation provides for more or less than one vote for any share on any
matter, every reference in these Bylaws to a majority or other proportion of
stock shall refer to such majority or other proportion of the votes of such
stock. Each shareholder entitled to vote at a meeting of shareholders may
authorize another person or persons to act for such shareholder by proxy, but no
such proxy shall be voted or acted upon after eleven months from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power,
regardless of whether the interest with which it is coupled
3
is an interest in the stock itself or an interest in the Corporation generally.
A shareholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of shareholders need not be by written
ballot unless the holders of a majority of the outstanding shares of all classes
of stock entitled to vote thereon present in person or represented by proxy at
such meeting shall so determine. Directors shall be elected by a plurality of
the votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of Directors. In all other matters, unless
otherwise provided by law or by the Articles of Incorporation or these Bylaws,
the affirmative vote of the holders of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders. Where a separate vote by
class or classes is required, the affirmative vote of the holders of a majority
of the shares of such class or classes present in person or represented by proxy
at the meeting shall be the act of such class or classes, except as otherwise
provided by law or by the Articles of Incorporation or these Bylaws.
Section 1.10 FIXING DATE FOR DETERMINATION OF SHAREHOLDERS OF RECORD. In
order that the Corporation may determine the shareholders entitled to notice of
or to vote at any meeting of shareholders or any adjournment thereof, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting. If no record date is fixed by the
Board of Directors, the record date for determining shareholders entitled to
notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of shareholders of record entitled to
notice of or to vote at a meeting of shareholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
In order that the Corporation may determine the shareholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the shareholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining shareholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 1.11 LIST OF SHAREHOLDERS ENTITLED TO VOTE. The Secretary shall
prepare and make, at least ten (10) days before every meeting of shareholders, a
complete list of the shareholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each shareholder and the number
of shares registered in the name of each shareholder. Such list shall be open to
the examination of any shareholder, for any purpose germane to the
4
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any shareholder who is present.
Section 1.12 ADVANCE NOTICE OF SHAREHOLDER PROPOSALS AND DIRECTOR
NOMINATIONS. At any annual or special meeting of shareholders, proposals by
shareholders and persons nominated for election as Directors by shareholders
shall be considered only if advance notice thereof has been timely given as
provided herein and such proposals or nominations are otherwise proper for
consideration under applicable law and the Articles of Incorporation and Bylaws
of the Corporation. Notice of any proposal to be presented by any shareholder or
of the name of any person to be nominated by any shareholder for election as a
Director of the Corporation at any meeting of shareholders shall be delivered to
the Secretary of the Corporation at its principal executive office not less than
sixty (60) nor more than ninety (90) days prior to the date of the meeting;
provided, however, that if the date of the meeting is first publicly announced
or disclosed (in a public filing or otherwise) less than seventy (70) days prior
to the date of the meeting, such advance notice shall be given not more than ten
(10) days after such date is first so announced or disclosed. Public notice
shall be deemed to have been given more than seventy (70) days in advance of the
annual meeting if the Corporation shall have previously disclosed, in these
Bylaws or otherwise, that the annual meeting in each year is to be held on a
determinable date, unless and until the Board of Directors determines to hold
the meeting on a different date. Any shareholder who gives notice of any such
proposal shall deliver therewith the text of the proposal to be presented and a
brief written statement of the reasons why such shareholder favors the proposal
and setting forth such shareholder's name and address, the number and class of
all shares of each class of stock of the Corporation beneficially owned by such
shareholder and any material interest of such shareholder in the proposal (other
than as a shareholder). Any shareholder desiring to nominate any person for
election as a Director of the Corporation shall deliver with such notice a
statement in writing setting forth the name of the person to be nominated, the
number and class of all shares of each class of stock of the Corporation
beneficially owned by such person, the information regarding such person
required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by
the Securities and Exchange Commission (or the corresponding provisions of any
regulation subsequently adopted by the Securities and Exchange Commission
applicable to the Corporation), such person's signed consent to serve as a
Director of the Corporation if elected, such shareholder's name and address and
the number and class of all shares of each class of stock of the Corporation
beneficially owned by such shareholder. As used herein, shares "beneficially
owned" shall mean all shares as to which such person, together with such
person's affiliates and associates (as defined in Rule 12b-2 under the
Securities Exchange Act of 1934), may be deemed to beneficially own pursuant to
Rules 13d- 3 and 13d-5 under the Securities Exchange Act of 1934, as well as all
shares as to which such person, together with such person's affiliates and
associates, has the right to become the beneficial owner pursuant to any
agreement or understanding, or upon the exercise of warrants, options or rights
to convert or exchange (whether such rights are exercisable immediately or only
after the passage of time or the occurrence of conditions). The person presiding
at the meeting, in addition
5
to making any other determinations that may be appropriate to the conduct of the
meeting, shall determine whether such notice has been duly given and shall
direct that proposals and nominees not be considered if such notice has not been
given.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 POWERS; NUMBER; QUALIFICATIONS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise provided by law or in the Articles of
Incorporation. The Board of Directors shall consist of not less than three (3)
or more than fifteen (15) members, the number thereof to be determined from time
to time by the Board of Directors. Directors need not be shareholders. The
number of directors may be increased or decreased from time to time by action of
the Board of Directors, but no decrease shall have the effect of shortening the
term of any incumbent director.
Section 2.2 ELECTION; TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. The
Directors of the Corporation shall be divided into three classes, as nearly
equal in number as reasonably possible, as determined by the Board of Directors,
with the initial term of office of the first class of such Directors to expire
at the first annual meeting of shareholders thereafter, the initial term of
office of the second class of such Directors to expire at the second annual
meeting of shareholders thereafter and the initial term of office of the third
class of such Directors to expire at the third annual meeting thereafter, with
each class of Directors to hold office until their successors have been duly
elected and qualified. At each annual meeting of shareholders following such
initial classification and election, Directors elected to succeed the Directors
whose terms expire at such annual meeting shall be elected to hold office for a
term expiring at the annual meeting of shareholders in the third year following
the year of their election and until their successors have been duly elected and
qualified. If the number of Directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain or attain a number of
Directors in each class as nearly equal as reasonably possible, but no decrease
in the number of Directors may shorten the term of any incumbent Director. Any
Director may resign at any time upon written notice to the Board of Directors or
to the President or the Secretary of the Corporation. Such resignation shall
take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. Subject to the rights, if any, of the holders of shares of preferred
stock then outstanding, any Director or the entire Board of Directors may be
removed by the shareholders of the Corporation at any annual or special meeting
of shareholders, only for cause in accordance with the provisions of the
Articles of Incorporation, by the affirmative vote of the holders of sixty
percent (60%) of the shares then generally entitled to vote at an election of
Directors, voting together as a single class. Unless otherwise provided in the
Articles of Incorporation or these Bylaws, vacancies and newly created
directorships resulting from any increase in the authorized number of Directors
elected by all of the shareholders having the right to vote as a single class or
from any other cause shall be filled by a majority of the Directors then in
office, although less than a quorum,
6
or by the sole remaining Director. Any Director elected or appointed to fill a
vacancy shall hold office until the next election of the class of Director which
such Director replaced, and until his or her successor is elected and qualified
or until his or her earlier resignation or removal in accordance with the
Articles of Incorporation and these Bylaws.
Section 2.3 REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held at such places within or without the State of Florida and at such
times as the Board of Directors may from time to time determine, and if so
determined notice thereof need not be given.
Section 2.4 SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time or place within or without the State of Florida whenever
called by the Chairman of the Board of Directors, if any, by the Vice Chairman
of the Board of Directors, if any, by the President or by any three Directors.
Reasonable notice thereof shall be given by the person or persons calling the
meeting.
Section 2.5 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE PERMITTED.
Unless otherwise restricted by the Articles of Incorporation or these Bylaws,
members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors or of such
committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Bylaw shall constitute presence in person at such meeting.
Section 2.6 QUORUM; VOTE REQUIRED FOR ACTION. Subject to the Articles of
Incorporation, at all meetings of the Board of Directors one-third of the entire
Board of Directors shall constitute a quorum for the transaction of business.
The vote 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 unless the Articles of
Incorporation or these Bylaws shall require a vote of a greater number. In case
at any meeting of the Board of Directors a quorum shall not be present, the
members of the Board of Directors present may adjourn the meeting from time to
time until a quorum shall be present.
Section 2.7 ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board of Directors, if any, or in the
absence of the Chairman of the Board of Directors by the Vice Chairman of the
Board of Directors, if any, or in the absence of the Vice Chairman of the Board
of Directors by the President, or in his absence by a chairman chosen at the
meeting. The Secretary, or in the absence of the Secretary an Assistant
Secretary, shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary, the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 2.8 ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, any action required
or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or of such committee, as the case may be, consent
7
thereto in writing, and the writing or writings are filed with the minutes of T
proceedings of the Board of Directors or committee.
Section 2.9 COMPENSATION OF DIRECTORS. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, the Board of Directors shall have the
authority to fix the compensation of Directors.
ARTICLE III
COMMITTEES
Section 3.1 COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the whole Board of Directors, designate one or more committees,
each committee to consist of one or more of the Directors of the Corporation.
The Board of Directors may designate one or more Directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution of the Board of Directors or in these Bylaws, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Articles of Incorporation (except that a committee may, to the extent authorized
in the resolution or resolutions providing for the issuance of shares of stock
adopted by the Board of Directors, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopting an agreement of
merger or consolidation, recommending to the shareholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution or amending these Bylaws; and, unless the
resolution, these Bylaws or the Articles of Incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, to adopt a certificate of ownership and merger
or to remove or indemnify Directors.
Section 3.2 COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may adopt, amend
and repeal rules for the conduct of its business. In the absence of a provision
by the Board of Directors or a provision in the rules of such committee to the
contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of business, the vote of
a majority of the members present at a meeting at the time of such vote if a
quorum is then present shall be the act of such committee, and in other respects
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
8
ARTICLE IV
OFFICERS
Section 4.1 OFFICERS; ELECTION. As soon as practicable after the annual
meeting of shareholders in each year, the Board of Directors shall elect a
President, a Chief Executive Officer, a Treasurer and a Secretary, and it may,
if it so determines, elect from among its members a Chairman of the Board of
Directors and a Vice Chairman of the Board of Directors. The Board of Directors
may also elect one or more Vice Presidents, one or more Assistant Vice
Presidents, one or more Assistant Secretaries, a Treasurer and one or more
Assistant Treasurers and such other officers as the Board of Directors may deem
desirable or appropriate and may give any of them such further designations or
alternate titles as it considers desirable. Any number of offices may be held by
the same person unless the Articles of Incorporation or these Bylaws otherwise
provide.
Section 4.2 TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES. Unless
otherwise provided in the resolution of the Board of Directors electing any
officer, each officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Any officer
may resign at any time upon written notice to the Board of Directors or to the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein no
acceptance of such resignation shall be necessary to make it effective. The
Board of Directors may remove any officer with or without cause at any time. Any
such removal shall be without prejudice to the contractual rights of such
officer, if any, with the Corporation, but the election of an officer shall not
of itself create contractual rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors at any regular or special meeting or by unanimous written
consent of the Board of Directors.
Section 4.3 POWERS AND DUTIES. The officers of the Corporation shall have
such powers and duties in the management of the Corporation as shall be stated
in these Bylaws or in a resolution of the Board of Directors which is not
inconsistent with these Bylaws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board of
Directors. The Secretary shall have the duty to record the proceedings of the
meetings of the shareholders, the Board of Directors and any committees in a
book to be kept for that purpose. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
9
ARTICLE V
STOCK
Section 5.1 CERTIFICATES. Every holder of stock in the Corporation shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman or Vice Chairman of the Board of Directors, if any, or the
President or a Vice President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, representing the
number of shares of stock in the Corporation owned by such holder. If such
certificate is manually signed by one officer or manually countersigned by a
transfer agent or by a registrar, any other signature on the certificate may be
a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
shareholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 5.2 LOST, STOLEN OR DESTROYED STOCK CERTIFICATES: ISSUANCE OF NEW
CERTIFICATES. The Corporation may issue a new certificate of stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
INDEMNIFICATION
Section 6.1 RIGHT TO INDEMNIFICATION. Any person, his heirs, or personal
representative, made, or threatened to be made a party to any threatened,
pending, or completed action or proceeding, whether civil, criminal,
administrative, regulatory, or investigative ("Proceeding")
10
because he is or was a director or officer of this Corporation or serves or
served any other corporation or other enterprise in any capacity at the request
of this Corporation, shall be indemnified by this Corporation, to the full
extent permitted by the Florida Business Corporation Act; provided, however,
that the Corporation shall indemnify any such person seeking indemnity in
connection with a Proceeding (or part thereof) initiated by such person only if
such Proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. In discharging his duty, any director or officer, when acting
in good faith, may rely upon information, opinions, reports, or statements,
including financial statements and other financial data, in each case prepared
or presented by (1) one or more officers or employees of the Corporation whom
the director or officer reasonably believes to be reliable and competent in the
matters presented, (2) counsel, public accountants, or other persons as to
matters that the director or officer believes to be within that person's
professional or expert competence, or (3) in the case of a director, a committee
of the board of directors upon which he does not serve, duly designated
according to law, as to matters within its designated authority, if the director
reasonably believes that the committee is competent.
Section 6.2 ADVANCES. The rights set forth above in this Article VI shall
include the right to be paid by the Corporation expenses incurred in defending
or being represented in any such Proceeding in advance of its final disposition;
provided, however, that the payment of such expenses incurred by a director or
officer because he is or was a director or officer of this Corporation or serves
or served any other corporation or enterprise in any capacity at the request of
this Corporation (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including service to an
employee benefit plan) in advance of the final disposition of such Proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
should be determined ultimately that such director or officer is not entitled to
be indemnified under this Article VI or otherwise.
Section 6.3 CONTRACT RIGHT. All rights to indemnification, including
advancement of expenses, shall be deemed to be provided by a contract between
the Corporation and the director or officer who serves in such capacity at any
time while this Article VI and other relevant provisions of the Florida Business
Corporation Act and other applicable law, if any, are in effect, such that any
repeal or modification thereof shall not adversely affect any right existing at
the time of such repeal or modification.
Section 6.4 RIGHT TO BRING SUIT. If a claim under the preceding paragraphs
of this Article VI is not paid in full by the Corporation within 90 days after a
written claim therefor has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense, including attorney's fees, of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
applicable standard of conduct which makes it permissible under the Florida
Business Corporation
11
Act for the Corporation to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Corporation. Neither the T
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in the Florida Business Corporation Act, nor an actual determination by
the Corporation (including its Board of Directors, independent legal counsel, or
its shareholders) that the claimant had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
had not met the applicable standard of conduct.
Section 6.5 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person
by this Article VI shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of these Bylaws, the
Articles of Incorporation, agreement, vote of shareholders or disinterested
directors or otherwise.
Section 6.6 INSURANCE. The Corporation may maintain insurance, at its
expense, for the purpose of indemnifying itself and any director, officer,
employee or agent of the Corporation or another corporation, partnership, trust
or other enterprise, whether or not the Corporation would have the power to
provide such indemnity under the Florida Business Corporation Act.
ARTICLE VII
MISCELLANEOUS
Section 7.1 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 7.2 SEAL. The Corporation may have a corporate seal which shall
have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 7.3 WAIVER OF NOTICE OF MEETINGS OF SHAREHOLDERS, DIRECTORS AND
COMMITTEES. Whenever notice is required to be given by law or under any
provision of the Articles of Incorporation or these Bylaws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any 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 shareholders,
Directors or members of a committee of Directors need be specified in any
written waiver of notice unless so required by the Articles of Incorporation or
these Bylaws.
12
Section 7.4 INTERESTED DIRECTORS; QUORUM. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are Directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (1) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or (2) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
shareholders; or (3) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the shareholders. Common or interested
Directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 7.5 FORM OF RECORDS. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 7.6 AMENDMENT OF BYLAWS. The Board of Directors is expressly
authorized to amend, repeal or adopt any Bylaw of and for the Corporation. The
holders of voting stock shall to the extent such power is at the time conferred
on them by applicable law, also have the power, by the affirmative vote of the
holders of at least sixty percent (60%) of the outstanding shares of capital
stock of the Corporation then entitled to vote generally in the election of
directors, voting together as a single class, to make, alter, amend or repeal
any Bylaw of and for the Corporation.
13