EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS OF
ALLERGY RESEARCH GROUP, INC.
ARTICLE I - MEETINGS OF STOCKHOLDERS
1.1 PLACE OF MEETINGS. Meetings of stockholders of Allergy Research
Group, Inc. (the "Corporation") shall be held at any place, within or outside
the State of Florida, designated by the Corporation's board of directors (the
"Board of Directors"). The Board may, in its sole discretion, determine that a
meeting of stockholders shall not be held at any place, but may instead be held
solely by means of remote communication as authorized by Sections 607.0701(4)
and 607.0702(4) of the Florida Business Corporation Act (the "FBCA"). In the
absence of any such designation or determination, stockholders' meetings shall
be held at the Corporation's principal executive office.
1.2 ANNUAL MEETING. An annual meeting of stockholders shall be held for
the election of directors at such date and time as may be designated by
resolution of the Board of Directors from time to time. Any other proper
business may be transacted at the annual meeting. The Corporation shall not be
required to hold an annual meeting of stockholders provided that (i) the
stockholders are not prohibited to act by written consent under the
Corporation's articles of incorporation or these bylaws, (ii) the stockholders
take action by written consent to elect directors and (iii) the stockholders
unanimously consent to such action or, if such consent is less than unanimous,
all of the directorships to which directors could be elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action.
1.3 SPECIAL MEETING. A special meeting of the stockholders may be
called at any time by the Board of Directors, chairperson of the Board of
Directors, chief executive officer or president (in the absence of a chief
executive officer) or by one or more stockholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at that meeting. If
any person(s) other than the Board of Directors calls a special meeting, the
request shall:
(i) be in writing;
(ii) specify the time of such meeting and the general nature of the
business proposed to be transacted; and
(iii) be delivered personally or sent by registered mail or by
facsimile transmission to the chairperson of the Board of Directors, the chief
executive officer, the president (in the absence of a chief executive officer)
or the secretary of the Corporation.
The officer(s) receiving the request shall cause notice to be promptly
given to the stockholders entitled to vote at such meeting, in accordance with
the provisions of Sections 1.4 and 1.5 of these bylaws, that a meeting will be
held at the time requested by the person or persons calling the meeting. No
business may be transacted at such special meeting other than the business
specified in such notice to stockholders. Nothing contained in this paragraph of
this Section 1.3 shall be construed as limiting, fixing, or affecting the time
when a meeting of stockholders called by action of the Board of Directors may be
held.
1.4 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with either Section
1.5 or Section 7.1 of these bylaws not less than 10 or more than 60 days before
the date of the meeting to each stockholder entitled to vote at such meeting.
The notice shall specify the place, if any, date and hour of the meeting, the
means of remote communication, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called.
1.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting
of stockholders shall be given:
(i) if mailed, when deposited in the United States mail, postage
prepaid, directed to the stockholder at his or her address as it appears on the
Corporation's records; or
(ii) if electronically transmitted as provided in Section 7.1 of these
bylaws.
An affidavit of the secretary or an assistant secretary of the Corporation
or of the transfer agent or any other agent of the Corporation that the notice
has been given by mail or by a form of electronic transmission, as applicable,
shall, in the absence of fraud, be prima facie evidence of the facts stated
therein.
1.6 QUORUM. Except as otherwise provided by law, the articles of
incorporation or these bylaws, at each meeting of stockholders the presence in
person or by proxy of the holders of shares of stock having a majority of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum. If, however, such quorum is not present or represented at any meeting
of the stockholders, then either (i) the chairperson of the meeting, or (ii) the
stockholders entitled to vote at the meeting, present in person or represented
by proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum is present or
represented.
1.7 ADJOURNED MEETING; NOTICE. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of the adjourned meeting if the time, place
if any thereof, and the means of remote communications if any by which
stockholders and proxy holders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is
taken. At the continuation of the adjourned meeting, the Corporation may
transact any business that might have been transacted at the original meeting.
If the adjournment is for more than 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.
1.8 CONDUCT OF BUSINESS. Meetings of stockholders shall be presided
over by the Chairman of the Board of Directors, if any, or in his or her absence
by the Vice Chairman of the Board of Directors, if any, or in his or her absence
by the President, or in his or her absence by a Vice President, or in the
absence of the foregoing persons by a chairperson designated by the Board of
Directors, or in the absence of such designation by a chairperson chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairperson of the meeting may appoint any person to act as
secretary of the meeting. The chairperson of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of business.
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1.9 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
1.11 of these bylaws, subject to Section 607.0721 (relating to voting rights of
fiduciaries, pledgors and joint owners of stock) and Section 607.0730 (relating
to voting trusts and other voting agreements) of the FBCA.
Except as may be otherwise provided in the articles of incorporation or
these bylaws, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Voting at meetings of stockholders need
not be by written ballot and need not be conducted by inspectors of election
unless so determined by the holders of shares of stock having a majority of the
votes which could be cast by the holders of all outstanding shares of stock
entitled to vote thereon which are present in person or by proxy at such
meeting. At all meetings of stockholders for the election of directors a
plurality of the votes cast shall be sufficient to elect. All other elections
and questions shall, unless otherwise provided by law, the articles of
incorporation or these bylaws, be decided by the vote of the holders of shares
of stock having a majority of the votes which could be cast by the holders of
all shares of stock entitled to vote thereon which are present in person or
represented by proxy at the meeting.
1.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Unless
otherwise provided in the articles of incorporation, any action required by the
FBCA to be taken at any annual or special meeting of stockholders of a
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date
for such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the Corporation as
provided in Section 607.0704 of the FBCA. In the event that the action which is
consented to is such as would have required the filing of a certificate under
any provision of the FBCA, if such action had been voted on by stockholders at a
meeting thereof, the certificate filed under such provision shall state, in lieu
of any statement required by such provision concerning any vote of stockholders,
that written consent has been given in accordance with Section 607.0704 of the
FBCA.
1.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
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of any rights, or 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 by
the Board of Directors and which record date:
(i) in the case of determination of stockholders entitled to notice of
or to vote at any meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than sixty nor less than ten days before
the date of such meeting;
(ii) in the case of determination of stockholders entitled to express
consent to corporate action in writing without a meeting, shall not be more than
ten days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors; and
(iii) in the case of determination of stockholders for any other
action, shall not be more than sixty days prior to such other action.
If no record date is fixed by the Board of Directors:
(i) the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders 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;
(ii) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action of
the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and
(iii) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders 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.
1.12 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy authorized by an instrument in writing or by a transmission
permitted by law filed in accordance with the procedure established for the
meeting, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. The provisions of
Section 607.0722 of the FBCA shall govern the revocability of a proxy that
states on its face that it is irrevocable.
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1.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at least 10 days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. The Corporation shall not be required to include electronic
mail addresses or other electronic contact information on such list. Such list
shall be open to the examination of any stockholder, for any purpose germane to
the meeting for a period of at least 10 days prior to the meeting: (i) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting, or (ii)
during ordinary business hours, at the Corporation's principal executive office.
In the event that the Corporation determines to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure that
such information is available only to stockholders of the Corporation. If the
meeting is to be held at a place, then the list shall be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. If the meeting is to be held solely
by means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of the meeting. Such list shall
presumptively determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
ARTICLE II - DIRECTORS
2.1 POWERS. Subject to the provisions of the FBCA and any limitations
in the articles of incorporation or these bylaws relating to action required to
be approved by the stockholders or by the outstanding shares, the business and
affairs of the Corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the Board of Directors.
2.2 NUMBER OF DIRECTORS. The number of directors shall be determined
from time to time by resolution of the Board of Directors, provided the Board of
Directors shall consist of at least one member. No reduction of the authorized
number of directors shall have the effect of removing any director before that
director's term of office expires.
2.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS. Except as
provided in Section 2.4 of these bylaws, directors shall be elected at each
annual meeting of stockholders to hold office until the next annual meeting.
Directors need not be stockholders unless so required by the articles of
incorporation or these bylaws. The articles of incorporation or these bylaws may
prescribe other qualifications for directors. Each director, including a
director elected to fill a vacancy, shall hold office until such director's
successor is elected and qualified or until such director's earlier death,
resignation or removal.
2.4 RESIGNATION AND VACANCIES. Any director may resign at any time upon
notice given in writing or by electronic transmission to the Corporation. When
one or more directors so resigns and the resignation is effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon
to take effect when such resignation or resignations shall become effective, and
each director so chosen shall hold office as provided in this Section in the
filling of other vacancies.
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Unless otherwise provided in the articles of incorporation or these bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the
articles of incorporation, vacancies and newly created directorships of such
class or classes or series may be filled by a majority of the directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected.
If at any time, by reason of death or resignation or other cause, the
Corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a stockholder,
or other fiduciary entrusted with like responsibility for the person or estate
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the articles of incorporation or these bylaws, or may apply to
the circuit court for a decree summarily ordering an election as provided in
Section 607.0703 of the FBCA. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office constitute less than a
majority of the whole Board of Directors (as constituted immediately prior to
any such increase), then the circuit court may, upon application of any
stockholder or stockholders holding at least 10% of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors then
in office as aforesaid, which election shall be governed by the provisions of
Section 607.0703 of the FBCA as far as applicable.
2.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. The Board of Directors
may hold meetings, both regular and special, either within or outside the State
of Florida.
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
any committee, by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
2.6 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.
2.7 SPECIAL MEETINGS; NOTICE.
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Special meetings of the Board of Directors for any purpose or purposes may
be called at any time by the chairperson of the Board of Directors, the chief
executive officer, the president, the secretary or any two directors.
Notice of the time and place of special meetings shall be:
(i) delivered personally by hand, by courier or by telephone;
(ii) sent by United States first-class mail, postage prepaid;
(iii) sent by facsimile; or
(iv) sent by electronic mail,
directed to each director at that director's address, telephone number,
facsimile number or electronic mail address, as the case may be, as shown on the
Corporation's records.
If the notice is (i) delivered personally by hand, by courier or by
telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be
delivered or sent at least 24 hours before the time of the holding of the
meeting. If the notice is sent by United States mail, it shall be deposited in
the United States mail at least four days before the time of the holding of the
meeting. Any oral notice may be communicated to the director. The notice need
not specify the place of the meeting (if the meeting is to be held at the
Corporation's principal executive office) or the purpose of the meeting.
2.8 QUORUM. At all meetings of the Board of Directors, a majority of
the total number of directors shall constitute a quorum for the transaction of
business. The vote of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute, the articles of incorporation
or these bylaws. If a quorum is not present at any meeting of the Board of
Directors, then the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
is present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for that meeting.
2.9 BOARD OF DIRECTORS ACTION BY WRITTEN CONSENT 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 committee, as the case may be, consent
thereto in writing or by electronic transmission and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors or committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
2.10 FEES AND 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.
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2.11 APPROVAL OF LOANS TO OFFICERS. The Corporation may lend money to,
or guarantee any obligation of, or otherwise assist any officer or other
employee of the Corporation or of its subsidiary, including any officer or
employee who is a director of the Corporation or its subsidiary, whenever, in
the judgment of the Board of Directors, such loan, guaranty or assistance may
reasonably be expected to benefit the Corporation. The loan, guaranty or other
assistance may be with or without interest and may be unsecured, or secured in
such manner as the Board of Directors shall approve, including, without
limitation, a pledge of shares of stock of the Corporation.
2.12 REMOVAL OF DIRECTORS. Unless otherwise restricted by statute, the
articles of incorporation or these bylaws, any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
ARTICLE III - COMMITTEES
3.1 COMMITTEES OF DIRECTORS. The Board of Directors may 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. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. 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 that may require it; but no such committee shall have the power or
authority to (i) approve or adopt, or recommend to the stockholders, any action
or matter expressly required by the FBCA to be submitted to stockholders for
approval, or (ii) adopt, amend or repeal any bylaw of the Corporation
3.2 COMMITTEE MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
3.3 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of
committees shall be governed by, and held and taken in accordance with, the
provisions of:
(i) Section 2.5 (place of meetings and meetings by telephone);
(ii) Section 2.6 (regular meetings);
(iii) Section 2.7 (special meetings and notice);
(iv) Section 2.8 (quorum);
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(v) Section 6.10 (waiver of notice); and
(vi) Section 2.9 (action without a meeting)
with such changes in the context of those bylaws as are necessary to substitute
the committee and its members for the Board of Directors and its members.
HOWEVER:
(vii) the time of regular meetings of committees may be determined
either by resolution of the Board of Directors or by resolution of the
committee;
(viii) special meetings of committees may also be called by resolution
of the Board of Directors; and
(ix) notice of special meetings of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The Board of Directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
ARTICLE IV - OFFICERS
4.1 OFFICERS. The officers of the Corporation shall be a president and
a secretary. The Corporation may also have, at the discretion of the Board of
Directors, a chairperson of the Board of Directors, a vice chairperson of the
Board of Directors, a chief executive officer, a chief financial officer or
treasurer, one or more vice presidents, one or more assistant vice presidents,
one or more assistant treasurers, one or more assistant secretaries, and any
such other officers as may be appointed in accordance with the provisions of
these bylaws. The same person may hold any number of offices.
4.2 APPOINTMENT OF OFFICERS. The Board of Directors shall appoint the
officers of the Corporation, except such officers as may be appointed in
accordance with the provisions of Sections 4.3 and 4.5 of these bylaws, subject
to the rights, if any, of an officer under any contract of employment.
4.3 SUBORDINATE OFFICERS. The Board of Directors may appoint, or
empower the chief executive officer or, in the absence of a chief executive
officer, the president, to appoint, such other officers and agents as the
business of the Corporation may require. Each of such officers and agents shall
hold office for such period, have such authority, and perform such duties as are
provided in these bylaws or as the Board of Directors may from time to time
determine.
4.4 REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any,
of an officer under any contract of employment, any officer may be removed,
either with or without cause, by an affirmative vote of the majority of the
Board of Directors at any regular or special meeting of the Board of Directors
or, except in the case of an officer chosen by the Board of Directors, by any
officer upon whom such power of removal may be conferred by the Board of
Directors.
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Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice. Unless otherwise
specified in the notice of resignation, the acceptance of the resignation shall
not be necessary to make it effective. Any resignation is without prejudice to
the rights, if any, of the Corporation under any contract to which the officer
is a party.
4.5 VACANCIES IN OFFICES. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors or as provided in Section
4.2.
4.6 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairperson of
the Board Directors, the president, any vice president, the treasurer, the
secretary or assistant secretary of the Corporation, or any other person
authorized by the Board of Directors or the president or a vice president, is
authorized to vote, represent, and exercise on behalf of the Corporation all
rights incident to any and all shares of any other corporation or corporations
standing in the name of the Corporation. The authority granted herein may be
exercised either by such person directly or by any other person authorized to do
so by proxy or power of attorney duly executed by such person having the
authority.
4.7 AUTHORITY AND DUTIES OF OFFICERS. All officers of the Corporation
shall respectively have such authority and perform such duties in the management
of the business of the Corporation as may be designated from time to time by the
Board of Directors or the stockholders and, to the extent not so provided, as
generally pertain to their respective offices, subject to the control of the
Board of Directors.
ARTICLE V - RECORDS AND REPORTS
5.1 MAINTENANCE AND INSPECTION OF RECORDS. The Corporation shall,
either at its principal executive office or at such place or places as
designated by the Board of Directors, keep a record of its stockholders listing
their names and addresses and the number and class of shares held by each
stockholder, a copy of these bylaws as amended to date, accounting books, and
other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent so to act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office in Florida or at its principal executive
office.
5.2 INSPECTION BY DIRECTORS. Any director shall have the right to
examine the Corporation's stock ledger, a list of its stockholders, and its
other books and records for a purpose reasonably related to his or her position
as a director.
5.3 ANNUAL REPORT. The Corporation shall cause an annual report to be
sent to the stockholders of the Corporation to the extent required by applicable
law. If and so long as there are fewer than 100 holders of record of the
Corporation's shares, the requirement of sending of an annual report to the
stockholders of the Corporation is expressly waived (to the extent permitted
under applicable law).
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ARTICLE VI - GENERAL MATTERS
6.1 STOCK CERTIFICATES; PARTLY PAID SHARES. The shares of the
Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock represented
by certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation by
the chairperson or vice-chairperson of the Board of Directors, or the president
or 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 registered in certificate form. Any or all of the signatures 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
has 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 he were such officer, transfer agent or registrar at the date of issue.
The Corporation may issue the whole or any part of its shares as partly paid
and subject to call for the remainder of the consideration to be paid therefor.
Upon the face or back of each stock certificate issued to represent any such
partly paid shares, upon the books and records of the Corporation in the case of
uncertificated partly paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the Corporation shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
6.2 SPECIAL DESIGNATION ON CERTIFICATES. If the Corporation is
authorized to issue more than one class of stock or more than one series of any
class, then the powers, the designations, the preferences, and the 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 shall be set forth in full or summarized on the face or back of
the certificate that the Corporation shall issue to represent such class or
series of stock; provided, HOWEVER, that, except as otherwise provided in
Section 607.0627 of the FBCA, in lieu of the foregoing requirements there may be
set forth on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock a statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, the designations, the preferences, and the 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.
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6.3 LOST CERTIFICATES. Except as provided in this Section 6.3, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the Corporation and cancelled at
the same time. The Corporation may issue a new certificate of stock or
uncertificated shares 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 or uncertificated shares.
6.4 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the FBCA shall
govern the construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes both a corporation and a natural
person.
6.5 DIVIDENDS. The Board of Directors, subject to any restrictions
contained in either (i) the FBCA, or (ii) the articles of incorporation, may
declare and pay dividends upon the shares of its capital stock. Dividends may be
paid in cash, in property, or in shares of the Corporation's capital stock.
The Board of Directors may set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve. Such purposes shall include but not be limited
to equalizing dividends, repairing or maintaining any property of the
Corporation, and meeting contingencies.
6.6 FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors and may be changed by the Board of
Directors.
6.7 SEAL. The Corporation may adopt a corporate seal, which shall be
adopted and which may be altered by the Board of Directors. The Corporation may
use the corporate seal by causing it or a facsimile thereof to be impressed or
affixed or in any other manner reproduced.
6.8 STOCK TRANSFER AGREEMENTS. The Corporation shall have power to
enter into and perform any agreement with any number of stockholders of any one
or more classes of stock of the Corporation to restrict the transfer of shares
of stock of the Corporation of any one or more classes owned by such
stockholders in any manner not prohibited by the FBCA.
6.9 REGISTERED STOCKHOLDERS. The Corporation:
(i) shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner;
(ii) shall be entitled to hold liable for calls and assessments the
person registered on its books as the owner of shares; and
(iii) shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of another person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Florida.
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6.10 WAIVER OF NOTICE. Whenever notice is required to be given under
any provision of the FBCA, the articles of incorporation or these bylaws, a
written waiver, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether before or
after the time of the event for which notice is to be given, 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 stockholders need be specified in any written
waiver of notice or any waiver by electronic transmission unless so required by
the articles of incorporation or these bylaws.
ARTICLE VII - NOTICE BY ELECTRONIC TRANSMISSION
7.1 NOTICE BY ELECTRONIC TRANSMISSION. Without limiting the manner by
which notice otherwise may be given effectively to stockholders pursuant to the
FBCA, the articles of incorporation or these bylaws, any notice to stockholders
given by the Corporation under any provision of the FBCA, the articles of
incorporation or these bylaws shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent shall be deemed revoked if:
(i) the Corporation is unable to deliver by electronic transmission two
consecutive notices given by the Corporation in accordance with such consent;
and
(ii) such inability becomes known to the secretary or an assistant
secretary of the Corporation or to the transfer agent, or other person
responsible for the giving of notice.
However, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.
Any notice given pursuant to the preceding paragraph shall be deemed given:
(iii) if by facsimile telecommunication, when directed to a number at
which the stockholder has consented to receive notice;
(iv) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice;
(v) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and
(vi) if by any other form of electronic transmission, when directed to
the stockholder.
An affidavit of the secretary or an assistant secretary or of the transfer
agent or other agent of the Corporation that the notice has been given by a form
of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
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7.2 DEFINITION OF ELECTRONIC TRANSMISSION. An "electronic transmission"
means any form of communication, not directly involving the physical
transmission of paper, that creates a record that may be retained, retrieved,
and reviewed by a recipient thereof, and that may be directly reproduced in
paper form by such a recipient through an automated process.
7.3 INAPPLICABILITY. Notice by a form of electronic transmission shall
not apply to Sections 607.0622, 607.1001, 607.1404 or 607.1432 of the FBCA.
ARTICLE VIII - INDEMNIFICATION
8.1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person (a "Covered Person") who was or
is made or threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request
of the Corporation as director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in this Article VIII, the Corporation shall be required to
indemnify a Covered Person in connection with a proceeding (or part thereof)
commenced by such Covered Person only if the commencement of such proceeding (or
part thereof) by the Covered Person was authorized by the Board of Directors of
the Corporation.
8.2 PREPAYMENT OF EXPENSES. The Corporation shall pay the expenses
(including attorneys' fees) incurred by a Covered Person in defending any
proceeding in advance of its final disposition, provided, however, that, to the
extent required by law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the Covered Person to repay all amounts advanced if it should be ultimately
determined that the Covered Person is not entitled to be indemnified under this
Article VIII or otherwise.
8.3 CLAIMS. If a claim for indemnification or advancement of expenses
under this Article VIII is not paid in full within thirty days after a written
claim therefor by the Covered Person has been received by the Corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or advancement of expenses under applicable law.
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8.4 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any Covered
Person by this Article VIII shall not be exclusive of any other rights which
such Covered Person may have or hereafter acquire under any statute, provision
of the articles of incorporation, these bylaws, agreement, vote of stockholders
or disinterested directors or otherwise.
8.5 OTHER SOURCES. The Corporation's obligation, if any, to indemnify
or to advance expenses to any Covered Person who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such Covered Person may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
8.6 AMENDMENT OR REPEAL. Any repeal or modification of the foregoing
provisions of this Article VIII shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
8.7 OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES. This Article VIII
shall not limit the right to the Corporation to the extent and in the manner
permitted by law, to indemnify and to advance expenses to persons other than
Covered Persons when and as authorized by appropriate corporate action.
ARTICLE IX - AMENDMENTS
These bylaws may be adopted, amended or repealed by the stockholders
entitled to vote. However, the Corporation may, in its articles of
incorporation, confer the power to adopt, amend or repeal bylaws upon the
directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
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