BY-LAWS
OF
DIALYSIS CORPORATION OF AMERICA
a Florida corporation
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ARTICLE I
OFFICES
1.1 Principal Office. The principal office shall be located in the
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City of Hialeah, County of Dade and State of Florida.
1.2 Other Offices. Dialysis Corporation of America (the "Company") may
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have other offices, either within or outside the State of Florida, at such
place or places as the Board of Directors may from time to time determine.
ARTICLE II
CORPORATE SEAL
2.1 Seal. The corporate seal shall be circular in form and shall have
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inscribed thereon the name of the Company, the year of its incorporation and
the words "Corporate Seal, Florida."
ARTICLE III
MEETINGS OF STOCKHOLDERS
3.1 Place of Meeting. All meetings of the stockholders shall be held
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at the office of the Company in the City of Hialeah, State of Florida, or at
such other place as may be designated by the Board of Directors.
3.2 Annual Meetings. The annual meeting of stockholders shall be held
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on any day other than a Sunday or a legal holiday during the month of May, or
at such other date as may be determined by the Board of Directors. At such
meeting the directors or the appropriate class of directors for the ensuing
year shall be elected in accordance with the Company's Articles of
Incorporation, as amended ("Articles of Incorporation") and these By-Laws.
Any general business pertaining to the affairs of the Company may be
transacted at an annual meeting without special notice. The directors or
particular class(es) of the Classified Board of Directors, if such exists at
the time, shall be elected at the annual meeting of the stockholders by
plurality vote of the stockholders present in person or by proxy at such
meeting and entitled to vote.
3.3 Special Meetings. Special meetings of the stockholders may be
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called for any purpose, unless otherwise permitted by statute, by the
President or by the Board of Directors, pursuant to a resolution adopted by a
majority of the entire Board, either upon motion of a director, or upon the
written request of the holders of at least 50% of all the outstanding stock
entitled to vote thereat, voting together as a single class. Any request for
a special meeting of stockholders shall state the purpose or purposes of the
special meeting and no business other than that specified in the Notice of
Meeting shall be transacted at any special meeting.
3.4 Fixing Date For Determination Of Stockholders Of Record. For the
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purpose of determining 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 of any
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for any other lawful action, the Board of
Directors may fix, in advance, a date as the record date for any such
determination of stockholders, which date shall not be more than 60 nor less
than 10 days before the date of such meeting, nor more than 60 days prior to
any other action. If no record date is fixed then the record date shall be
as follows: (a) for determining stockholders entitled to notice of or to vote
at the meeting of stockholders, the close of business on the day next
preceding the day on which the meeting is held; (b) for determining
stockholders entitled to express consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is
necessary, the day on which the first written consent is expressed, and (c)
for determining stockholders for any other purpose, 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.
3.5 Notice. Notice of the annual meeting of stockholders shall be mailed or
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otherwise given to each holder of record of the stock entitled to vote
thereat, at his address, as the same appears on the books of the corporation,
at least 10 days but not more than 60 days prior to such meeting. Such
notice need not specify the business to be transacted.
Written or printed notice of each special meeting of stockholders,
stating the place, day and hour of such meeting and business proposed to be
transacted thereat, shall be mailed, postage prepaid, or otherwise given to
each holder of record of the stock entitled to vote thereat, at his address
as the same appears on the books of the Company, at least 10 days but not
more than 60 days prior to such meeting.
Whenever any notice is required to be given under the provisions of any
law of this State or under the provisions of the Articles of Incorporation of
this Company or by these By-Laws, waiver thereof in writing, signed by the
person or persons entitled to such notice, or by his or their proxy or
proxies, whether before or after the time fixed for the giving of such
notice, shall be deemed equivalent to such notice. If a person or persons
entitled to notice of a meeting shall attend such meeting, either in person
or by proxy, such attendance shall constitute a waiver of notice of the
meeting, except in case the attention of any business because the meeting
shall not have been lawfully called or convened.
If mailed, such notice shall be deemed to be delivered when deposited in
the United States mail, addressed to the stockholder at his address as it
appears on the stock books of the Company, with postage thereon prepaid.
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced at
the meeting at which the
adjournment is taken. At the adjourned meeting the Company may transact any
business which might have been transacted at the original meeting.
3.6 Quorum. Except as otherwise required by law, by the Articles of
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Incorporation of this Company, or by these By-Laws, the presence, in person
or by proxy, of stockholders entitled to cast a majority in number of the
aggregate number of votes to which Common Stock shall be entitled, shall
constitute a quorum of all meetings of the stockholders. In any case, where
the presence of the aforesaid number of the holders of Common Stock shall be
necessary to constitute a quorum, and if such number shall not be represented
at any meeting, the stockholders entitled to vote thereat, present in person
or by proxy, shall have the power to adjourn the meeting from time to time,
without notice other dm announcement at the meeting, until the requisite
amount of voting stock shall be present. At any such adjourned meeting at
which the requisite amount of voting stock shall be present, any business may
be transacted which might have been transacted at the meeting as originally
scheduled.
3.7 Manner of Acting. When a quorum is present at any meeting, the
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affirmative vote of a majority of the shares represented at the meeting and
entitled to vote on the subject matter shall be the act of the stockholders,
unless a different vote is required by law or the Articles of Incorporation,
in which case such express provision shall govern.
3.8 Organization. The President or any Vice President shall call
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meetings of stockholders to order and act as Chairman of such meetings. In
the absence of said officers, any stockholder entitled to vote at that
meeting or any proxy of any such stockholder, may call the meeting to order
and a chairman shall be elected by a majority of the stockholders entitled to
vote at that meeting. In the absence of the Secretary or any Assistant
Secretary of the Company, any person appointed by the Chairman shall act as
Secretary of such meetings.
3.9 Agenda and Procedure. The Board of Directors shall have the
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responsibility of establishing an agenda for each meeting of stockholders,
subject to the rights of stockholders to raise matters for consideration
which may otherwise properly be brought before the meeting although not
included within the agenda. The Chairman shall be charged with the orderly
conduct of all meetings; provided however, that in the event of any
difference in opinion with respect to the proper cause of action which cannot
be resolved by reference to statute, or to the Articles of Incorporation or
these By-Laws, Robert's Rules of Order (as last revised) shall govern the
disposition of the matter.
3.10 Informal Action By Stockholders. Unless otherwise provided in the
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Articles of Incorporation, any action required or permitted to be taken at
any meeting of the stockholders may be taken without a meeting, without prior
notice and without a vote, provided that a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock
having not less than 66 2/3% or such higher percentage of the outstanding
stock entitled to vote thereon as may be required by law. 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. In the event that the action which is consented to is such as
would required the filing of a certificate with the Secretary of State of
Florida under the Florida Business Corporation Act if such action had been
voted on by stockholders at a meeting thereof, the certificate filed shall
state, in lieu of any statement required under law concerning any vote of
stockholders, that written consent has been given in accordance with the
provision of law and that written notice has been given as provided by law.
3.11 Proxies. Any stockholder entitled to vote at any meeting of
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stockholders may be represented and vote thereat by proxy appointed by an
instrument in writing subscribed by such
stockholder and bearing a date to more than three months prior to such
meeting, unless such proxy shall, on its face, provide a longer period in
which it is to remain in force.
3.12 Vote by Ballot. The Secretary shall prepare at least 10 days prior
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to each election of directors, a complete list of the stockholders entitled
to vote, arranged in alphabetical order, with the residence of and the number
of voting shares held by each stockholder, which shall be open for the
examination of any stockholder, at the place where said election is to be
held, for 10 days prior to such election, and shall be kept available for the
inspection by any stockholder during the whole time of the election.
Each stockholder shall have one vote for each share of stock having
voting power and registered in his name on the books of the Company.
Cumulative voting shall not be allowed.
3.13 Voting of Shares by Certain Holders. Persons holding stock in a
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fiduciary capacity shall be entitled to vote the shares so held. Persons
whose stock is pledged shall be entitled to vote, unless in the transfer by
the pledgor on the books of the Company the pledgor has expressly empowered
the pledgee to vote thereon, in which case only the pledgee or his proxy may
represent such shares and vote thereon. If shares stand of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary of the Company is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing
them or creating the relationship wherein it is so provided, their acts with
respect to voting shall be as set forth in the Florida Business Corporation
Act.
3.14 Inspectors. The Chairman of the meeting may at any time appoint
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one or more inspectors to serve at a meeting of the stockholders. Such
inspector(s) shall decide upon the qualifications of voters, including the
validity of proxies, accept and count the votes for and against the questions
presented, report the results of such votes, and subscribe and deliver to the
Secretary of the meeting a certificate stating the number of shares of stock
issued and outstanding and entitled to vote thereon and the number of shares
voted for and against the questions presented. The inspector(s) does not
need to be a stockholder of the Company, and any director or officer of the
Company may be an inspector on any questions other than a vote for or against
his election to any position with the Company or on any other question in
which he may be directly interested.
ARTICLE IV
DIRECTORS
4.1 Powers. The business and affairs of the Company shall be managed
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by or under the direction of its Board of Directors, except as otherwise
provided in the Florida Business Corporation Act or the Articles of
Incorporation.
4.2 Number, Tenure and Qualification. The number of directors of the
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Company shall be as determined by the Board of Directors and shall be not
fewer than two nor more than six. Directors shall be elected at annual
meetings of shareholders and, to the extent provided in the Company's
Articles of Incorporation, may be elected in classes at each classes'
respective annual meeting of stockholders. Each director shall hold office
until his successor shall have been elected and qualified or until the
earliest of his death, resignation or removal. Directors need not be
residents of Florida or stockholders of the Company.
Any amendment or repeal of any provision or all provisions of this
Article IV, Section 4. 2, or the adoption of any provision inconsistent with
any provision or all provisions of this Article IV, Section 4.2, shall, in
addition to any other vote or approval required by law or by these By-Laws or
by the Articles of Incorporation, require the affirmative vote of at least 66
2/3% of the outstanding shares entitled to vote thereon and at least a
majority, not including shares owned by interested shareholders as defined in
Section 607.0901 of the Florida Business Corporation Act, or any successor
provision thereto, of the outstanding shares of each class of stock entitled
to vote thereon.
The number of directors may be changed at any time and from time to time
by vote at a meeting or by written consent of the shareholders entitled to
vote on the election of directors as otherwise provided in these By-Laws, in
particular but not limited to Section 3.10 of Article III, and Section 4.2 of
this Article IV, and as otherwise permitted in the Articles of Incorporation
of the Company, or by resolution of the Board of Directors passed by a
majority of the entire Board of Directors, except that no decrease shall
shorten the term of any incumbent director unless such director is
specifically removed for cause at the time of such decrease. Whenever the
authorized number of directors is increased between annual meetings of the
shareholders, a majority of the directors then in office shall have the power
to elect such new directors for the balance of a term and until their
successors are elected and qualified. Any decrease in the authorized number
of directors shall not become effective until the expiration of the term of
the directors then in office unless, at the time of such decrease, there
shall be vacancies on the Board which are being eliminated by the decrease.
4.3 Term of Offices. Except as otherwise provided in the Articles of
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Incorporation of this corporation, each director shall be elected to serve
until the next annual meeting of stockholders voting for directors, and if
classes of directors have been elected, then of his particular class of
directors, and until his successor is chosen and qualified.
4.4 Removal. At any annual or special meeting of the stockholders duly
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called, as provided in the Articles of Incorporation of the Company and in
these By-Laws, any director or the entire Board of Directors may be removed
from office only for cause and only by a vote of the holders of at least 75%
of the voting power all the shares of stock outstanding and entitled to vote
generally in the election of the directors, voting together as a single
class, and his successor or their successors may be elected at such meeting,
or the remaining directors may, in the absence of such election, fill any
vacancies created by such removal.
4.5 Meetings. A regular meeting of the Board shall be held without
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notice immediately following and at the same place as the annual shareholders
meeting for the purposes of electing officers and conducting such other
business as may come before the meeting. If an election of directors occurs
by written consent in lieu of the annual meeting of shareholders, the annual
meeting of the Board of Directors shall take place as soon after such written
consent is duly filed with the Company as is practicable, either at the next
regular meeting of the Board of Directors or at a special meeting. The
Board, by resolution, may provide for additional regular meetings which may
be held without notice, except to members not present at the time of the
adoption of the resolution.
A special meeting of the Board may be called at any time by the Chief
Executive Officer or if he is unavailable, by the President, or by the
Secretary upon the written request of not less than three directors, for any
purpose. Such meeting shall be held upon not less than 24 hours notice
whether given orally (either by telephone or in person) or by telegram or by
depositing the same in the United States mails, postage prepaid. Such notice
shall specify the time, place and purposes of the special meeting.
4.6 Place of Meeting. The Board of Directors may hold its meetings and
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have one or more offices and keep the books of the Company (except such as
are required by law to be kept within the State of Florida) either within
or outside of the State of Florida at such place or places as it may from
time to time determine.
4.7 Quorum and Powers of a Majority. At all meetings of the Board of
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Directors, a majority of the directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any such meeting at which a quorum is
present shall be the act of the Board of Directors, except as specifically
required by statute or by the Articles of Incorporation of the Company or by
these By-Laws. If less than a majority of directors is available and present
at such meeting, a majority of such directors present may adjourn the meeting
from time to time, without notice other than the announcement at the meeting,
until a quorum shall be present.
4.8 Compensation. Unless otherwise restricted by the Articles of
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Incorporation of these By-Laws, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be paid
their expenses, if any, for attendance at such meetings of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Company in any other capacity and
receiving compensation therefore. Members of any committee of the Board may
be allowed like compensation for attending committee meetings.
4.9 Notice of Nominations. Nominations for the election of directors
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may be made by the Board of Directors or a committee of the Board of
Directors or by any stockholder entitled to vote for the election of
directors. Nominations by the Board of Directors or a committee of the Board
of Directors may be made by oral or written notice delivered to the Secretary
of the corporation by any officer or director on behalf of the Board of
Directors or committee at any time prior to or at any meeting of the
stockholders at which directors are to be elected. Each notice of nomination
of directors by the Board of Directors or a committee of the Board of
Directors shall set forth the names of the nominees. Nominations by
stockholders shall be made by notice in writing, delivered or mailed by first
class United States mail, postage prepaid, to the Secretary of the Company
not less than 60 days nor more than 90 days prior to any meeting of the
stockholders at which directors are to be elected; provided, however, that if
less than 60 days' notice of the meeting is given to stockholders, written
notice of nominations of directors by stockholders shall be delivered or
mailed, as prescribed, to the Secretary of the Company not later than the
close of the seventh day following the day on which notice of the meeting was
mailed to stockholders. Nominations by stockholders for directors to be
elected by written consent of stockholders shall be made by notice in
writing, delivered or mailed by first class United States mail, postage
prepaid, to the Secretary of the Company not less than 60 days nor more than
90 days prior to the first solicitation of any written consents of
stockholders for the election of those nominees. Each notice of nomination
of directors by a stockholder of the Company shall set forth (a) the name,
age, business address and, if known, residence address of each nominee
proposed in that notice, (b) the principal occupation or employment of each
such nominee for the five years preceding the date of the notice, (c) the
number of shares of stock of the Company that are beneficially owned by each
nominee, (d) any arrangement, affiliation, association, agreement or other
relationship of the nominee with any stockholder, officer, director or other
person affiliated with of the Company, (e) consent of the nominee to serve as
a director, (f) the name and address of the shareholder proposing the nominee
and the home(s) and address(es) of any other shareholder(s) known to the
proposing shareholder to be supporting such nominee, and (g) the number of
shares of each class of securities of the Company owned by the shareholder(s)
named in subparagraph (f) of this Section 4.9. The Chairman of any meeting
of stockholders of the Company 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 the Chairman should so determine, the Chairman
shall so declare to the meeting and the defective nomination shall be
disregarded.
4.10 Vacancies. Any director may resign at any time by giving written
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notice to the Company. Such resignation shall take effect at the time
specified therein; and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make if effective. Any vacancy or
newly created directorship resulting from an increase in the authorized
number of directors may be filled by the affirmative vote of the majority of
directors then in office, although less than a quorum, or by a sole remaining
director, and a director so chosen shall hold office until the next annual
election, or if classes of directors then exist, then to the next annual
election relating to the class of directors to which he is filling, and until
his successor is duly elected and qualified, unless sooner displaced. If at
any time, by reason of death, resignation or other cause, the Company should
have no directors in office, then an election of directors may be held in the
manner provided by law. When one or more directors shall resign from the
Board, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have the power to fill
any vacancy or vacancies, with the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so
chosen shall hold office until the next annual election or if classes of
directors then exist, then to the next annual election relating to the class
of directors to which he is filling, and until his successor is duly elected
and has qualified.
4.11 Informal Action by Directors. Unless otherwise restricted by the
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Articles of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all members of the Board or committee, as
the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of the proceedings of the Board or committee.
4.12 Meetings by Telephone. Unless otherwise restricted by the Articles
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of Incorporation or these By-Laws, members of the Board or Directors, or any
committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors, or any committee thereof, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting in such manner shall constitute presence in person at the meeting.
ARTICLE V
EXECUTIVE COMMITTEE
5.1 Powers. The Board of Directors may designate two or more of their
number, including the Chief Executive Officer, to constitute an Executive
Committee to serve at the pleasure of the Board of Directors. The Board of
Directors is authorized to remove at any time, without notice, any member of
the Executive Committee, and elect another member in his or her place and
stead.
The Board of Directors may delegate to such Committee any or all of the
powers of the Board of Directors in the management of the business and
affairs of the Company and may from time to time extend, modify, curtail or
restrict the powers so delegated; and the Board may authorize the seal of the
Company to be affixed to all papers which may require it; but no such
Committee shall have the power or authority to amend the Articles of
Incorporation to adopt an agreement of merger or consolidation, to recommend
to the stockholders the sale, lease or exchange of all or substantially all
of the Company's
property and assets, to recommend to the stockholders a dissolution of the
Company or a revocation of a dissolution, or to amend the By-Laws of the
Company; and, unless the resolution expressly so provides, no such Committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
5.2 Meetings. The Executive Committee may meet at stated times, on not
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less than 24 hours' notice given personally or mailed or telegraphed to all
by any one of their own number. During the intervals between meetings of the
Board of Directors, the Executive Committee shall advise with and aid the
officers of the Company in all matters concerning the interest and management
of its business.
5.3 Minutes. The Executive Committee shall keep regular minutes of its
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proceedings and report the same to the Board of Directors when requested.
5.4 Alternate Members. The Board of Directors may designate one (1) or
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more directors as alternate members of any Executive Committee, who may
replace at any meeting of such Committee any absent member or member
disqualified from voting. In the absence or disqualification from voting of
a member of the Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of such absent or disqualified
member; but vacancies in the membership of the Executive Committee shall be
filled by the Board of Directors at a regular meeting or at a special meeting
called for such purpose.
5.5 Action Without Meeting. Any action of the Board of Directors or of
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any Committee thereof, which is required or permitted to be taken at a
meeting, may be taken without a meeting if written consent to the action
signed by all of the members of the Board or of the Committee, as the case
may be, is filed in the minutes of the proceedings of the Board of Committee
prior to the taking of such action.
ARTICLE VI
OFFICERS
6.1 Generally. The officers of the Company shall include a Chief
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Executive Officer, a President, a Secretary and a Treasurer, and may include
a Chairman of the Board, one or more Vice-Presidents, and such other
subordinate officers as may from time to time be appointed by the Board of
Directors. Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders, or by a duly authorized committee thereof with the approval of
shareholders. The Chief Executive Officer shall be a member of the Board of
Directors and may be the Chairman of the Board. None of the other officers,
except the Chief Executive Officer, need be a director. Any number of
offices may be held by the same person, but no officer shall attest,
acknowledge or verify any instrument in more than one capacity.
6.2 Term of Office. The officers hereinbefore mentioned shall hold
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office for one year or until their successors are chosen and qualified or
until his earlier resignation or removal. Any vacancy occurring among the
officers shall be filled by the Board of Directors, but the person so elected
to fill the vacancy shall hold office only until the first meeting of the
Board of Directors after the next annual meeting of stockholders and until
his successor is chosen and qualified.
6.3 Agents. The Board of Directors may appoint such agents as it may
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deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time
to time by the Board of Directors.
6.4 Salaries. The salaries, emoluments, compensation or reimbursement
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or all officers and agents of the Company shall be fixed by the Board of
Directors.
6.5 Removal. Any officer or agent elected, appointed or chosen by the
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Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors, with or without cause, whenever in its
judgment the best interests of the Company will be served thereby.
6.6 Voting Shares in Other Corporations. Unless otherwise directed by
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the Board of Directors, the Chief Executive Officer shall have power to vote
and otherwise act on behalf of the Company, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which this Company may hold securities and otherwise
to exercise and all rights and powers which this Company may possess by
reason of its ownership of securities in such other corporation.
6.7 Vacancies. Any officer may resign at any time upon written notice
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to the Company. Such resignation shall take effect at the time stated
therein; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any vacancy
occurring in any office by death, resignation, removal or otherwise shall be
filed by the Board of Directors for the unexpired portion of the term. If
any officer shall be absent or unable for any reason to perform his duties,
the Board of Directors, to the extent not otherwise consistent with these By-
Laws or law, may direct that the duties of such officer during such absence
or inability shall be performed by such other officer or assistant officer as
seems advisable to the Board.
6.8 Authority and Duties of Officers. The officers of the Company
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shall have the authority and shall exercise the powers and perform the duties
specified below, and as may be otherwise specified by the Board of Directors
or by these By-Laws, except that in any event each officer shall exercise
such powers and perform such duties as may be required by law, and in cases
where the duties of any officer or agent are not prescribed by these By-Laws
or by the Board of Directors such officer or agent shall follow the orders
and instructions of (a) the President, and if a Chairman of the Board is
elected, then (b) the Chairman of the Board.
ARTICLE VII
CHIEF EXECUTIVE OFFICER
7.1 Chairman of the Board - Chief Executive Officer. The Chief
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Executive Officer shall be Chairman of the Board of the Company and shall
have the general and active management of the business of the Company and
general and active supervision and direction over the other officers, agents
and employees and shall see that their duties are properly performed. He
shall, if present, preside at each meeting of the stockholders and of the
Board of Directors and shall be an ex officio member of all committees of the
Board of Directors. He shall perform all duties incident to the office of
Chairman of the Board of Directors and Chief Executive Officer and such other
duties as may from time to time be assigned to him by the Board of Directors.
The Chief Executive Officer may enter into and execute in the name of the
Company, contracts or other instruments in the regular course of business or
contracts or other instruments not in the regular course of business, which
are authorized
either generally or specifically, by the Board of Directors. He shall
further be authorized to execute bonds, mortgages, and similar documents on
behalf or the Company and shall affix the seal to any instruments requiring
it, and when so affixed, the seal shall be attested by the signature of the
Secretary or the Treasurer, or any other officer authorized to do so by the
Board of Directors. In the event of his inability to act as Chief Executive
Officer or Chairman of the Board, or in his absence, the Board of Directors
shall appoint, at a special meeting not to be held more than four (4) days
from the Chairman of the Board-Chief Executive Officer's inability to act or
his absence, such officer or other person to perform the duties of Chief
Executive Officer-Chairman of the Board of Directors until such time that the
Chief Executive Officer-Chairman of the Board is no longer absent or is able
to perform his duties. In so acting the newly appointed Chief Executive
Officer-Chairman of the Board shall have and perform all the powers of, and
be subject to all the restrictions upon the Chief Executive Officer-Chairman
of the Board.
ARTICLE VIII
PRESIDENT
8.1 President. The President shall be a chief operating officer of the
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Company and shall have general and active supervision and direction over the
business and affairs of the Company and over its several officers, subject,
however, to the direction and approval of the Chairman of the Board of
Directors who shall also be the Chief Executive Officer of the Company and
the control of the Board of Directors. At the request of the Chairman of the
Board of Directors, but only for a specified and limited time and subject to
approval by the Board of Directors, the President shall perform the duties of
the Chairman of the Board and in so acting shall have all the powers of, and
be subject to all the restrictions upon, the Chairman of the Board of
Directors. He shall perform all duties incident to the office of President
and such other duties as from time to time may be assigned to him by the
Board, the Chairman of the Board of Directors, the Chief Executive Officer or
these By-Laws. In the event of the absence, death, inability or refusal to
act by the President, the Chairman of the Board of Directors shall act as the
President until a new President is appointed by the Board of Directors. The
Chairman of the Board of Directors in so acting as President shall perform
the duties and be vested with the authority of the President.
ARTICLE IX
VICE PRESIDENT
9.1 Vice President. The Executive Vice President, if any, and each
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Vice President, shall have such powers and perform all such duties as from
time to time may be assigned to him by the Board of Directors, the Chairman
of the Board of Directors or the Chief Executive Officer unless otherwise
provided by the Board of Directors.
ARTICLE X
TREASURER
10.1 Custody of Funds. The Treasurer shall have the custody of the
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corporate funds and securities, and shall keep full and accurate account of
receipts and disbursements in books belonging to
the Company. He shall deposit all moneys and other valuables in the name and
to the credit of the Company in such depositories as may be designated by the
Board of Directors.
10.2 Disbursements. The Treasurer shall disburse the funds of the
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Company as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements. He shall render to the Chief Executive Officer and
directors at the regular meetings an account of all his transactions as
Treasurer and of the financial condition of the Company.
10.3 Bond. He shall give the Company a bond if required by the Board of
----
Directors, in a sum and with one or more securities satisfactory to the Board
of Directors, for the faithful performance of the duties of his office and
for the restoration to the Company in case of his death, resignation,
retirement or removal from office of all books, papers, vouchers, moneys and
other property of whatever kind in his possession or under his control
belonging to the Company.
10.4 Assistant Treasurer. The Assistant Treasurer shall perform all the
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duties and responsibilities of the Treasurer on such occasion on which the
Treasurer shall be unable to perform all the duties of the office and shall
perform all other duties and exercise all other powers as shall be assigned
to him by the Board of Directors or by the Chief Executive Officer or the
Treasurer.
ARTICLE XI
SECRETARY
11.1 Secretary. The Secretary shall attend all meetings of the Board of
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Directors and all meetings of the stockholders and shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose and
shall perform like duties for the standing committees when required. The
Secretary shall give or cause to be given notice of all meetings of the
stockholders and of the Board of Directors, and shall keep the seal of the
Company in safe custody. The Secretary shall perform such other duties as
may be prescribed by the Board of Directors or by the Chief Executive Officer
under whose supervision he or she shall be.
11.2 Assistant Secretary. The Assistant Secretary shall perform all the
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duties and responsibilities of the Secretary on such occasions on which the
Secretary shall be unavailable to perform the duties of the office and shall
perform all other duties and exercise all other powers as shall be assigned
Secretary.
ARTICLE XII
DUTIES OF OFFICERS MAY BE DELEGATED
12.1 Delegation. In case of the absence or disability of any officer of
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the Company, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors, by majority vote, may delegate for that
time being the powers or duties or any of them of such officer to any other
officer or to any director or to any other person.
ARTICLE XIII
CERTIFICATE OF STOCK
13.1 Certificates. Certificates of stock shall be issued in such form
------------
as may be approved by the Board of Directors. Each holder of stock in the
Company shall be entitled to have a certificate signed in the name of the
Company by the President or a Vice-President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Company. Any of or all the signatures on the certificate may be 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 Company with the same effect as if he were
such officer, transfer agent or registrar at the date of issue. Certificates
of stock shall be consecutively numbered and shall be in such form consistent
with law as shall be prescribed by the Board of Directors.
13.2 Consideration for Shares. Shares shall be issued for such
------------------------
consideration (but not less than the par value thereof) as shall be
determined from time to time by the Board of Directors. Treasury shares
shall be disposed of for such consideration as may be determined from time to
time by the Board. Such consideration may consist, in whole or in part, of
cash, personal property, real property, leases of real property, services
rendered or to be rendered, or promissory notes, and shall be paid in such
form, in such manner and at such times as the directors may require, all as
consistent with the Florida Business Corporation Act.
13.3 Issuance of Stock. The capital stock issued by the Company shall
-----------------
be deemed to be fully paid and nonassessable stock, if: (a) the entire amount
of the consideration has been received by the Company in the form or forms
set forth in Section 13.2 of this Article XIII and if any part of the
consideration is in the form of a promissory note or other obligation, such
note or obligation has been satisfied in full; or (b) not less than the
amount of the consideration determined to be capital pursuant to statute has
been received by the Company in the form or forms set forth in Section 13.2
of this Article XIII and the Company has received a binding obligation of the
subscriber or purchaser to pay the balance of the subscription or purchase
price; provided, however, nothing contained herein shall prevent the Board of
Directors from issuing partly paid shares as described herein.
The Company 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
therefore. Upon the face or back of each stock certificate issued to
represent any such partly paid shares the total amount of the consideration
to be paid therefore and the amount paid thereon may be stated.
The directors may from time to time demand payment, in respect of each
share of stock not fully paid, of such sum of money as the necessities of the
business may, in the judgment of the Board of Directors, require, not
exceeding the whole, the balance remaining unpaid on said stock, and such sum
so demanded shall be paid to the Company at such times and by such
installments as the Directors shall direct. The Directors shall give written
notice of the time and place of such payments, which notice shall be mailed
to each holder or subscriber to his last know post office address at least 30
days before the time for such payment for stock which is not fully paid.
ARTICLE XIV
TRANSFER OF STOCK
14.1 Transfer. The Board of Directors shall have power and authority to
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make such rules and regulations as they may deem expedient concerning the
issue, registration and transfer of certificates of stock, and may appoint
transfer agents or clerks and registrars thereof.
14.2 Electronic Transfer. The Board of Directors has approved the
-------------------
issuance, registration and transfer of the Company's shares in book entry
form, otherwise known as electronic registration and transfer, to ensure
compliance with the Nasdaq (and other securities exchanges) rules for listing
requirements for shares traded on that exchange, and for the Company's shares
to be eligible in a Direct Registration Program operated by a clearing agency
registered under Section 17A of the Securities Exchange Act of 1934 to
facilitate the electronic transfer of shares held pursuant to such program.
Share certificates will not have to be issued, and in lieu thereof, Company
shareholders will receive transaction advices and annual statements or
similar reports from the Company and/or its transfer agent with a summary of
their share holdings. Anything in this Section 14.2 notwithstanding, any
shareholder may still request a certificate representing Company shares even
if the Company's shares are Direct Registration Program eligible.
ARTICLE XV
INDEBTEDNESS OF STOCKHOLDERS
15.1 Lien. The Company shall have a first lien on all the shares of its
----
capital stock and upon all dividends declared upon the same for any sum due
to the Company, either on account of the subscription to its stock or for any
other indebtedness due from the stockholder.
ARTICLE XVI
CLOSING OF TRANSFER BOOKS, FIXING OF RECORD DATE
16.1 Record Date. The Board of Directors may at any time by resolutions
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direct that the stock transfer books be closed for a period not to exceed
fifty (50) days preceding the date of any annual or special meeting of
stockholders, or the date for payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or in connection with obtaining the
consent of stockholders for any purpose. In lieu of providing for the
closing of the stock transfer books as aforesaid, the Board of Directors may
fix in advance a date, not exceeding fifty (50) days preceding the date of
any meeting of stockholders, or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining the consent of stockholders for any purpose, as a
record date for the determination of the stockholders entitled to notice of
and to vote at any such meeting, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock or to
give such consent, as the case may be.
ARTICLE XVII
REGISTERED STOCKHOLDERS
17.1 Record Holder. The Company shall be entitled to treat the holder
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of record of any share or shares of stock as the holder in fact thereof and
shall not be bound to recognize any equitable or other claims to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, save expressly provided by the
laws of the State of Florida.
ARTICLE XVIII
LOST CERTIFICATES
18.1 Lost Certificates. Any person claiming a certificate of stock to
-----------------
be lost or destroyed shall make an affidavit or affirmation of that fact and
verify the same in such manner as the Board of Directors may require, and
shall, if the Board of Directors require, give the corporation a bond of
indemnity in form and with one or more sureties satisfactory to the Board of
Directors in at least double the value of the stock represented by said
certificate before a new certificate may be issued of the same tenor and for
the same number of shares as the one alleged to have been lost or destroyed.
ARTICLE XIX
INSPECTION OF BOOKS
19.1 Inspection of Books. The Board of Directors shall determine from
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time to time whether, and if allowed, when and under what conditions and
regulations the accounts and books of the Company (except such as may by
statute be specifically open to inspection), or any of then, shall be open to
the inspection of the stockholders and the stockholders' rights in this
respect are and shall be restricted and limited accordingly.
ARTICLE XX
CHECKS
20.1 Commercial Investments. All checks, drafts, acceptances, notes and
----------------------
other orders, demands, or instruments in respect to the payment of money,
shall be signed or endorsed on behalf of the Company by the Chief Executive
Officer and the President or the Secretary or by any other officers whom the
Board of Directors may from time to time designate.
ARTICLE XXI
FISCAL YEAR
21.1 Fiscal Year. The fiscal year of the corporation shall begin
-----------
January I and end on December 31 next following,
ARTICLE XXII
DIVIDENDS
22.1 Dividends. Dividends upon the capital stock of the Company may be
---------
declared at the discretion of the Board of Directors, subject to the
provisions of the Articles of Incorporation, at any regular or special
meeting.
ARTICLE XXIII
NOTICES
23.1 Notices. Whenever notice is required to be given by the Articles
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of Incorporation or by these By-Laws, it shall not be construed to mean
personal notice, but such notice, except as otherwise provided by law or by
these By-Laws, may be given by depositing the same in the post office, letter
box or mail chute, in a postage sealed wrapper addressed to the stockholder,
officer or director, as the case may be, at such address as appears on the
books of the corporation.
23.2 Waivers of Notice. Whenever notice is required to be given by law,
-----------------
by the Articles of Incorporation or by these By-Laws, a written waiver
thereof, signed by the person entitled to said notice, whether before or
after the time state therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting or (in the case of a stockholder) by
proxy 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 was not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors need to be
specified in any written waiver or notice unless so required by the Articles
of Incorporation or these By-Laws.
ARTICLE XXIV
AMENDMENTS
24.1 Amendments. These By-Laws may be altered, amended or repealed or
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new By-Laws may be adopted by the Board of Directors or by the stockholders
in the manner provided in this Article XXIV at any meeting, but not by
written consent, of the stockholders. In order for the Board of Directors to
effect an alteration, amendment or repeal of these By-Laws or to adopt new
By-Laws, written notice containing the proposed alteration, amendment or
repeal, or new By-Laws must be provided to all the directors of the Company
not less than 30 days prior to the meeting of directors at which the proposal
is to be considered unless the proposal is approved by at least 75 percent of
all directors. In order for the stockholders to effect an alteration,
amendment, or repeal of these By-Laws or to adopt new By-Laws, written notice
containing the proposed alteration, amendment, repeal or new By-Laws has been
provided to the Secretary and all the directors of the corporation not more
than seven days after the corporation gives notice of the meeting of
stockholders at which the proposal is to be considered.
Any amendment or repeal of any provision or all provisions of this
Article XXIV or the adoption of any provision inconsistent with any provision
or all provisions of this Article XXIV shall,
in addition to any other vote or approval required by law or by these By-Laws
or by the Articles of Incorporation, require the affirmative vote of (a) at
least 75 percent of all the director or (b) (i) at least 75 percent of the
outstanding shares of each class of voting stock and (ii) at least a
majority, not including shares owned by interested shareholders as defined in
Section 607.090 of the Florida Business Corporation Act, of the outstanding
shares of each class of voting stock.
24.2 Emergency By-Laws. Subject to repeal or change by action of the
-----------------
stockholders, the Board of Directors may adopt emergency By-Laws in
accordance with and pursuant to the provisions of the Florida Business
Corporation Act.
ARTICLE XXV
25.1 Indemnification of Directors and Officers. To the full extent
-----------------------------------------
permitted by law, the Company shall indemnify any person made a party, or
threatened to be made a party, to an action, suit or proceeding, whether
civil, criminal, administrative or investigative, brought or threatened to be
brought (whether by or in the right of the Company or otherwise) to impose a
liability or penalty on such person for an act alleged to have been committed
by such person by reason of the fact that he is or was a director or officer
of the Company, or of any other corporation which he served as such at the
request of the Company, against, judgments, fines, amounts paid in settlement
and expenses, including attorney's fees, actually and reasonably incurred by
him as a result of such action, suit or proceeding, or any appeal therein, if
such director or officer acted in good faith in the reasonable belief that
such action was in the best interests of the Company, and in criminal actions
or proceedings, without reasonable ground for belief that such action was
unlawful. The termination of any such action, suit or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere shall not
in itself create a presumption that any director or officer did not act in
good faith in the reasonable belief that such action was in the best interest
of the Company or that he had reasonable ground for belief that such action
was unlawful. The foregoing rights of indemnification shall apply to the
heirs, executors, and administrators of any such director or officer and
shall not be exclusive of other rights to which any director or officer may
be entitled as a matter of law or by contract or otherwise. The Board of
Directors may, at any time, approve indemnification of any other person that
the Company has the power by law to indemnify.
ARTICLE XXVI
26.1 Interested Parties. Any directors, individually, or incorporated
------------------
or unincorporated firm with which any director may be associated, may be a
party to, or may be pecuniarily or otherwise interested in, any contract or
transaction of this Company, provided that the fact that he or such firm is
so interested shall be disclosed of shall have been known to the Board of
Directors. Any director of this Company who or whose firm is so interested
may be counted in determining the existence of a quorum at any meeting of the
Board of Directors of this Company which shall authorize any such contract or
transaction, with like force and effect as if he or his firm were not so
interested, but such director may not participate in the voting on such
matter. Notwithstanding anything herein to the contrary, no contract or
other transaction between this Company and any other corporation,
unincorporated firm or individual, and no other contract or transaction of
this Company, shall in any way be affected or invalidated by the fact that
one or more of the directors and officers of this Company are parties to such
contract or transaction or are pecuniarily or otherwise interested in any
other corporation or unincorporated firm.
ARTICLE XXVII
27.1 Limited Exclusion from Control Share Acquisition of Florida
-----------------------------------------------------------
Business Corporation Act 607.0902. Notwithstanding anything in these By-Laws
- ---------------------------------
to the Contrary, the Company hereby provides that Section 607.0902 of the
Florida Business Corporation Act relating to control share acquisitions does
not apply to any control share acquisitions of securities of the Company
relating to any issuances or acquisitions of any securities of the Company
pursuant to any savings, employee stock ownership, other employee benefit
plan, any non-qualified stock option plan, any option, bonus, appreciation,
profit sharing, retirement, incentive, thrift, savings, defined compensation,
discount or similar options, rights or plans, or the issuance of any
securities, shares or stock, directly or indirectly, through options or
rights or other similar plans to existing management, officers, directors and
similar parties duly elected by shareholders at a regular or special meeting
and/or duly appointed and approved by such duly elected directors, not
management, officers, directors and control parties who are engaged or have
obtained such status either in a hostile tender offer or bid or proxy
contest, and other than securities, options, warrants or rights issued to all
security holders on a pro rata basis. The term "plan" as used in this
Article XXVII includes, but is not limited to, any plan, contract,
authorization or arrangement, whether or not set forth in any formal
documents, pursuant to which the following may be received: cash, stock,
restricted stock, phantom stock, stock options, stock appreciation rights,
stock options in tandem with stock appreciations rights, stock or other
shares in tandem with stock options or any other stock appreciation rights,
warrants, convertible securities, performance units and performance shares.
A plan may be applicable to one person. Group, as considered in Section
607.0902 of the Florida Business Corporation Act shall not include directors
and/or officers merely because such are participants in any plan as defined
in this Article XXVII, but would require some further "acting in concert"
other than administrating, participating in or otherwise voting for such
plan.