BYLAWS
OF
EWEBCENTRAL.NET, INC.
a Florida corporation
INDEX
Page
1. Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Principal Office . . . . . . . . . . . . . . . . . . . . . 1
1.2 Registered Office. . . . . . . . . . . . . . . . . . . . . 1
1.3 Other Offices. . . . . . . . . . . . . . . . . . . . . . . 1
2. Meetings of Shareholders. . . . . . . . . . . . . . . . . . . . 1
2.1 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Special Meeting. . . . . . . . . . . . . . . . . . . . . . 1
2.3 Shareholders' List for Meeting . . . . . . . . . . . . . . 1
2.4 Record Date. . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 Notice of Meetings and Adjournment . . . . . . . . . . . . 2
2.6 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . 3
2.7 Shareholder Proposals. . . . . . . . . . . . . . . . . . . 3
3. Shareholder Voting. . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Voting Group Defined . . . . . . . . . . . . . . . . . . . 4
3.2 Quorum and Voting Requirements for Voting Groups . . . . . 4
3.3 Action by Single and Multiple Voting Groups. . . . . . . . 4
3.4 Shareholder Quorum and Voting; Greater or Lesser Voting
Requirements . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 Voting for Directors; Cumulative Voting. . . . . . . . . . 5
3.6 Voting Entitlement of Shares . . . . . . . . . . . . . . . 5
3.7 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.8 Shares Held by Nominees. . . . . . . . . . . . . . . . . . 7
3.9 Corporation's Acceptance of Votes. . . . . . . . . . . . . 7
3.10 Action by Shareholders Without Meeting . . . . . . . . . . 8
4. Board of Directors and Officers . . . . . . . . . . . . . . . . 9
4.1 Qualifications of Directors. . . . . . . . . . . . . . . . 9
4.2 Number of Directors. . . . . . . . . . . . . . . . . . . . 9
4.3 Terms of Directors Generally . . . . . . . . . . . . . . . 9
4.4 Staggered Terms for Directors. . . . . . . . . . . . . . . 9
4.5 Vacancy on Board . . . . . . . . . . . . . . . . . . . . . 9
4.6 Compensation of Directors. . . . . . . . . . . . . . . . .10
4.7 Meetings . . . . . . . . . . . . . . . . . . . . . . . . .10
4.8 Action by Directors Without a Meeting. . . . . . . . . . .10
4.9 Notice of Meetings . . . . . . . . . . . . . . . . . . . .10
4.10 Waiver of Notice . . . . . . . . . . . . . . . . . . . . .10
4.11 Quorum and Voting. . . . . . . . . . . . . . . . . . . . .10
4.12 Committees . . . . . . . . . . . . . . . . . . . . . . . .11
4.13 Loans to Officers, Directors and Employees; Guaranty of
Obligations. . . . . . . . . . . . . . . . . . . . . . . .11
4.14 Required Officers. . . . . . . . . . . . . . . . . . . . .11
4.15 Duties of Officers . . . . . . . . . . . . . . . . . . . .12
4.16 Resignation and Removal of Officers. . . . . . . . . . . .12
4.17 Contract Rights of Officers. . . . . . . . . . . . . . . .12
4.18 General Standards for Directors. . . . . . . . . . . . . .12
4.19 Director Conflicts of Interest . . . . . . . . . . . . . .13
4.20 Resignation of Directors . . . . . . . . . . . . . . . . .13
5. Indemnification of Directors, Officers, Employees and Agents. .13
5.1 Directors, Officers, Employees and Agents. . . . . . . . .13
6.1 Registered Office and Registered Agent . . . . . . . . . .17
6.2 Change of Registered Office or Registered Agent;
Resignation of Registered Agent. . . . . . . . . . . . . .17
7. Shares, Options, Dividends and Distributions. . . . . . . . . .17
7.1 Authorized Shares. . . . . . . . . . . . . . . . . . . . .17
7.2 Terms of Class or Series Determined by Board of Directors.18
7.3 Issued and Outstanding Shares. . . . . . . . . . . . . . .18
7.4 Issuance of Shares . . . . . . . . . . . . . . . . . . . .19
7.5 Form and Content of Certificates . . . . . . . . . . . . .19
7.6 Shares Without Certificates. . . . . . . . . . . . . . . .20
7.7 Restriction on Transfer of Shares and Other Securities . .20
7.8 Shareholder's Pre-emptive Rights . . . . . . . . . . . . .20
7.9 Corporation's Acquisition of its Own Shares. . . . . . . .20
7.10 Share Options. . . . . . . . . . . . . . . . . . . . . . .20
7.11 Terms and Conditions of Stock Rights and Options . . . . .21
7.12 Share Dividends. . . . . . . . . . . . . . . . . . . . . .21
7.13 Distributions to Shareholders. . . . . . . . . . . . . . .21
8. Amendment of Articles and Bylaws. . . . . . . . . . . . . . . .22
8.1 Authority to Amend the Articles of Incorporation . . . . .22
8.2 Amendment by Board of Directors. . . . . . . . . . . . . .23
8.3 Amendment of Bylaws by Board of Directors. . . . . . . . .23
8.4 Bylaw Increasing Quorum or Voting Requirements for
Directors. . . . . . . . . . . . . . . . . . . . . . . . .23
9. Records and Reports . . . . . . . . . . . . . . . . . . . . . .23
9.1 Corporate Records. . . . . . . . . . . . . . . . . . . . .24
9.2 Financial Statements for Shareholders. . . . . . . . . . .24
9.3 Other Reports to Shareholders. . . . . . . . . . . . . . .25
9.4 Annual Report for Department of State. . . . . . . . . . .25
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . .25
10.1 Application of Florida Law . . . . . . . . . . . . . . . .25
10.2 Conflicts with Articles of Incorporation . . . . . . . . .26
10.3 Definition of the "Act". . . . . . . . . . . . . . . . . .26
10.4 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . .26
10.5 Control Share Acquisitions . . . . . . . . . . . . . . . .26
BYLAWS
1. Offices.
1.1 Principal Office. The principal office of the
corporation in the State of Florida shall be established at such
places as the board of directors from time to time determine.
1.2 Registered Office. The registered office of the
corporation in the State of Florida shall be at the office of its
registered agent as stated in the articles of incorporation or as
the board of directors shall from time to time determine.
1.3 Other Offices. The corporation may have additional
offices at such other places, either within or without the State of
Florida, as the board of directors may from time to time determine
or the business of the corporation may require.
2. Meetings of Shareholders.
2.1 Annual Meeting.
(a) The corporation shall hold a meting of
shareholders annually, for the election of directors and for
the transaction of any proper business, at a time stated in or
fixed in accordance with a resolution of the board of directors.
(b) Annual shareholders' meeting may be held in or
out of the State of Florida at a place stated in or fixed in
accordance with a resolution by the board of directors or, when
not inconsistent with the board of directors' resolution stated
in the notice of the annual meeting. If no place is stated in
or fixed in accordance with these bylaws, or stated in the
notice of the annual meeting, annual meetings shall be held at
the corporation's principal office.
(c) The failure to hold the annual meeting at the
time stated in or fixed in accordance with these bylaws or
pursuant to the Act does not affect the validity of any
corporate action and shall not work a forfeiture of or
dissolution of the corporation.
2.2 Special Meeting.
(a) The corporation shall hold a special meeting
of shareholders:
(1) On call of its board of directors or the
person or persons authorized to do so by the board of
directors; or
(2) If the holders of not less than 10% of
all votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting sign, date and
deliver to the corporation's secretary one or more written
demands for the meeting describing the purpose or purposes for
which it is to be held.
(b) Special shareholders' meetings may be held in
or out of the State of Florida at a place stated in or fixed in
accordance with a resolution of the board of directors, or,
when not inconsistent with the board of directors' resolution,
in the notice of the special meeting. If no place is stated in
or fixed in accordance with these bylaws or in the notice of
the special meeting, special meetings shall be held at the
corporation's principal office.
(c) Only business within the purpose or purposes
described in the special meeting notice may be conducted at a
special shareholders' meeting.
2.3 Shareholders' List for Meeting.
(a) After fixing a record date for a meeting, a
corporation shall prepare a list of the names of all its
shareholders who are entitled to notice of a shareholders'
meeting, in accordance with the Florida Business Corporation
Act (the "Act"), or arranged by voting group, with the address
of, and the number and class and series, if any, of shares held
by, each.
(b) The shareholders' list must be available for
inspection by any shareholder for a period of ten days prior to
the meeting or such shorter time as exists between the record
date and the meeting and continuing through the meeting at the
corporation's principal office, at a place identified in the
meeting notice in the city where the meeting will be held, or
at the office of the corporation's transfer agent or registrar.
A shareholder or his or her agent or attorney is entitled on
written demand to inspect the list (subject to the requirements
of Section 607.1602(3) of the Act), during regular business
hours and at his or her expense, during the period it is
available for inspection.
(c) The corporation shall make the shareholders'
list available at the meeting, and any shareholder or his or
her agent or attorney is entitled to inspect the list at any
time during the meeting or any adjournment.
2.4 Record Date.
(a) The board of directors may set a record for
purposes of determining the shareholders entitled to notice of
and to vote at a shareholders' meeting; however, in no event
may a record date fixed by the board of directors be a date
preceding the date upon which the resolution fixing the record
date is adopted.
(b) Unless otherwise fixed by the board of
directors, the record date for determining shareholders
entitled to demand a special meeting is the date the first
shareholder delivers his or her demand to the corporation. In
the event that the board of directors sets the record date for
a special meeting of shareholders, it shall not be a date
preceding the date upon which the corporation receives the
first demand from a shareholders requesting a special meeting.
(c) If no prior action is required by the board of
directors pursuant to the Act, and, unless otherwise fixed by
the board of directors, the record date for determining
shareholders entitled to take action without a meeting is the
date the first signed written consent is delivered to the
corporation under Section 607.0704 of the Act. If prior action
is required by the board of directors pursuant to the Act, the
record date for determining shareholders entitled to take
action without a meeting is at the close of business on the day
on which the board of directors adopts the resolution taking
such prior action.
(d) Unless otherwise fixed by the board of
directors, the record date for determining the shareholders
entitled to notice of and to vote at an annual or special
shareholders' meeting is the close of business on the day
before the first notice is delivered to shareholders.
(e) A record date may not be more than 70 days
before the meeting or action requiring a determination of
shareholders.
(f) A determination of shareholders entitled to
notice of or to vote at a shareholders' meeting is effective
for any adjournment of the meeting unless the board of
directors fixes a new record date, which it must do if the
meeting is adjourned to a date more than one hundred twenty
(120) days after the date fixed for the original meeting.
2.5 Notice of Meetings and Adjournment.
(a) The corporation shall notify shareholders of
the date, time and place of each annual and special
shareholders's meeting no fewer than ten (10) or more than
sixty (60) days before the meeting date. Unless the Act
requires otherwise, the corporation is required to give notice
only to shareholders entitled to vote at the meeting. Notice
shall be given in the manner provided in Section 607.0141 of
the Act, by or at the direction of the president, the
secretary, or the officer or persons calling the meeting. If
the notice is mailed at least thirty (30) days before the
meeting, it may be done by a class of United States mail other
than first class. Notwithstanding Section 607.0141, if mailed,
such notice shall be deemed to be delivered when deposited in
the United States mail addressed to the shareholder at his or
her address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
(b) Unless the Act or the articles of
incorporation requires otherwise, notice of an annual meeting
need not include a description of the purpose or purposes for
which the meeting is called.
(c) Notice of a special meeting must include a
description of the purpose or purposes for which the meeting is
called.
(d) If an annual or special shareholders meeting
is adjourned to a different date, time or place, notice need
not be given of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment is
taken, and any business may be transacted at the adjourned
meeting that might have been transacted on the original date of
the meeting. If a new record date is or must be fixed under
Section 607.0707 of the Act, however, notice of the adjourned
meeting must be given under this section to persons who are
shareholders as of the new record date who are entitled to
notice of the meeting.
(e) Notwithstanding the foregoing, no notice of a
shareholders' meeting need be given if:
(1) an annual report and proxy statements for
two (2) consecutive annual meetings of shareholders, or
(2) all, and at least two checks in payment
of dividends or interest on securities during a twelve (12)
month period, have been sent by first-class United States mail,
addressed to the shareholder at his or her address as it
appears on the share transfer books of the corporation, and
returned undeliverable. The obligation of the corporation to
give notice of a shareholders' meeting to any such shareholder
shall be reinstated once the corporation has received a new
address for such shareholder for entry on its share transfer
books.
2.6 Waiver of Notice.
(a) A shareholder may waive any notice required by
the Act, the articles of incorporation, or bylaws before or
after the date and time stated in the notice. The waiver must
be in writing, be signed by the shareholder entitled to the
notice, and be delivered to the corporation for inclusion in
the minutes or filing with the corporate records. Neither the
business to be transacted at nor the purpose of any regular or
special meeting of the shareholders need be specified in any
written waiver of notice.
(b) A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or
defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or
transacting business at the meeting; or
(2) waives objection to consideration of a
particular matter at the meeting that is not within the purpose
or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is
presented.
2.7 Shareholder Proposals. Any stockholder proposals
to be considered at any annual or special meeting must be made in
writing and delivered to the corporation not less than 90 days nor
more than 120 days prior to that meeting, but if the corporation
provides less than 30 days notice (actual or by public disclosure)
of the meeting, proposals will be deemed timely if they are received
not more than 10 days following the date of the notice or of the
public disclosure of the meeting. Any proposals must comply with
the requirements of Rule 14a-8 under Regulation 14A of the
Securities Exchange Act of 1934.
3. Shareholder Voting.
3.1 Voting Group Defined. A "voting group" means all
shares of one or more classes or series that under the articles of
incorporation or the Act are entitled to vote and be counted
together collectively on a matter at a meeting of shareholders. All
shares entitled by the articles of incorporation or the Act to vote
generally on the matter are for that purpose a single voting group.
3.2 Quorum and Voting Requirements for Voting Groups.
(a) Shares entitled to vote as a separate voting
group may take action on a matter at a meeting only if a quorum
of those shares exists with respect to that matter. Unless the
articles of incorporation or the Act provides otherwise, a
majority of the votes entitled to be cast on the matter by the
voting group constitutes a quorum of that voting group for
action on that matter.
(b) Once a share is represented for any purpose at
a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that
adjourned meeting.
(c) If a quorum exists, action on a matter (other
than the election of directors) by a voting group is approved
if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action, unless the articles
of incorporation or the Act requires a greater number of
affirmative votes.
3.3 Action by Single and Multiple Voting Groups.
(a) If the articles of incorporation or the Act
provides for voting by a single voting group on a matter,
action on that matter is taken when voted upon by that voting
group as provided in Section 3.02 of these bylaws.
(b) If the articles of incorporation or the Act
provides for voting by two or more voting groups on a matter,
action on that matter is taken only when voted upon by each of
those voting groups counted separately as provided in Section
3.02 of these bylaws. Action may be taken by one voting group
on a matter even though no action is taken by another voting
group entitled to vote on the matter.
3.4 Shareholder Quorum and Voting; Greater or Lesser
Voting Requirements.
(a) A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at
a meeting of shareholders, but in no event shall a quorum
consist of less than one-third (1/3) of the shares entitled to
vote. When a specified item of business is required to be
voted on by a class or series of stock, a majority of the
shares of such class or series shall constitute a quorum for
the transaction of such item of business by that class or series.
(b) An amendment to the articles of incorporation
that adds, changes or deletes a greater or lesser quorum or
voting requirement must meet the same quorum requirement and be
adopted by the same vote and voting groups required to take
action under the quorum and voting requirements then in effect
or proposed to be adopted, whichever is greater.
(c) If a quorum exists, action on a matter, other
than the election of directors, is approved if the votes cast
by the holders of the shares represented at the meeting and
entitled to vote on the subject matter favoring the action
exceed the votes cast opposing the action, unless a greater
number of affirmative votes or voting by classes is required by
the Act or the articles of incorporation.
(d) After a quorum has been established at a
shareholders' meeting, the subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to
vote at the meeting below the number required for a quorum,
shall not affect the validity of any action taken at the
meeting or any adjournment thereof.
(e) The articles of incorporation may provide for
a greater voting requirement or a greater or lesser quorum
requirement for shareholders (or voting groups of shareholders)
than is provided by the Act, but in no event shall a quorum
consist of less than one-third (1/3) of the shares entitled to
vote.
3.5 Voting for Directors; Cumulative Voting.
(a) Directors are elected by a plurality of the
votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present.
(b) Each shareholder who is entitled to vote at an
election of directors has the right to vote the number of
shares owned by him for as many persons as there are directors
to be elected and for whose election he or she has a right to
vote. Shareholders do not have a right to cumulate their votes
for directors unless the articles of incorporation so provide.
3.6 Voting Entitlement of Shares.
(a) Unless the articles of incorporation or the
Act provides otherwise, each outstanding share, regardless of
class, is entitled to one vote on each matter submitted to a
vote at a meeting of shareholders. Only shares are entitled to
vote.
(b) The shares of the corporation are not entitled
to vote if they are owned, directly or indirectly, by a second
corporation, domestic or foreign, and the first corporation
owns, directly or indirectly, a majority of shares entitled to
vote for directors of the second corporation.
(c) This section does not limit the power of the
corporation to vote any shares, including its own shares, held
by it in a fiduciary capacity.
(d) Redeemable shares are not entitled to vote on
any matter, and shall not be deemed to be outstanding, after
notice of redemption is mailed to the holders thereof and a sum
sufficient to redeem such shares has been deposited with a
bank, trust company, or other financial institution upon an
irrevocable obligation to pay the holders the redemption price
upon surrender of the shares.
(e) Shares standing in the name of another
corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the bylaws of the corporate shareholder may
prescribe or, in the absence of any applicable provision, by
such person as the board of directors of the corporate
shareholder may designate. In the absence of any such
designation or in case of conflicting designation by the
corporate shareholder, the chairman of the board, the
president, any vice president, the secretary, and the treasurer
of the corporate shareholder, in that order, shall be presumed
to be fully authorized to vote such shares.
(f) Shares held by an administrator, executor,
guardian, personal representative, or conservator may be voted
by him, either in person or by proxy, without a transfer of
such shares into his or her name. Shares standing in the name
of a trustee may be voted by him, either in person or by proxy,
but no trustee shall be entitled to vote shares held by him
without a transfer of such shares into his or her name or the
name of his or her nominee.
(g) Shares held by or under the control of a
receiver, a trustee in bankruptcy proceedings, or an assignee
for the benefit of creditors may be voted by him without the
transfer thereof into his or her name.
(h) If a share or 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 corporation is given 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, then acts with respect to voting have the following
effect:
(1) If only one votes, in person or in proxy,
his or her act binds all;
(2) If more than one vote, in person or by
proxy, the act of the majority so voting binds all;
(3) If more than one vote, in person or by
proxy, but the vote is evenly split on any particular matter,
each faction is entitled to vote the share or shares in
question proportionally;
(4) If the instrument or order so filed shows
that any such tenancy is held in unequal interest, a majority
or a vote evenly split for purposes of this subsection shall be
a majority or a vote evenly split in interest;
(5) The principles of this subsection shall
apply, insofar as possible, to execution of proxies, waivers,
consents, or objections and for the purpose of ascertaining the
presence of a quorum;
(6) Subject to Section A.3.8 of these bylaws,
nothing herein contained shall prevent trustees or other
fiduciaries holding shares registered in the name of a nominee
from causing such shares to be voted by such nominee as the
trustee or other fiduciary may direct. Such nominee may vote
shares as directed by a trustee or their fiduciary without the
necessity of transferring the shares to the name of the trustee
or other fiduciary.
3.7 Proxies.
(a) A shareholder, other person entitled to vote
on behalf of a shareholder pursuant to Section A.3.6 of these
bylaws, or attorney in fact may vote the shareholder's shares
in person or by proxy.
(b) A shareholder may appoint a proxy to vote or
otherwise act for him by signing an appointment form, either
personally or by his or her attorney in fact. An executed
telegram or cablegram appearing to have been transmitted by
such person, or a photographic, photostatic, or equivalent
reproduction of an appointment form, is a sufficient
appointment form.
(c) An appointment of a proxy is effective when
received by the secretary or other officer or agent authorized
to tabulate votes. An appointment is valid for up to eleven
(11) months unless a longer period is expressly provided in the
appointment form.
(d) The death or incapacity of the shareholder
appointing a proxy does not affect the right of the corporation
to accept the proxy's authority unless notice of the death or
incapacity is received by the secretary or other officer or
agent authorized to tabulate votes before the proxy exercises
his or her authority under the appointment.
(e) An appointment of a proxy is revocable by the
shareholder unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an
interest. Appointments coupled with an interest include the
appointment of
(1) a pledge;
(2) a person who purchased or agreed to
purchase the shares;
(3) a creditor of the corporation who
extended credit to the corporation under terms requiring the
appointment;
(4) an employee of the corporation whose
employment contract requires the appointment; or
(5) a party to a voting agreement created in
accordance with the Act.
(f) An appointment made irrevocable under this
section becomes revocable when the interest with which it is
coupled is extinguished and, in a case provided for in
Subsection A.3.7(e)(3) or A.3.7(e)(4), the proxy becomes
revocable three (3) years after the date of the proxy or at the
end of the period, if any, specified herein, whichever is less,
unless the period of irrevocability is renewed from time to
time by the execution of a new irrevocable proxy as provided in
this section. This does not affect the duration of a proxy
under subsection A.3.7(c).
(g) A transferee for value of shares subject to an
irrevocable appointment may revoke the appointment if he or she
did not know if its existence when he or she acquired the
shares and the existence of the irrevocable appointment was not
noted conspicuously on the certificate representing the shares
or on the information statement for shares without certificates.
(h) Subject to section A.3.9 of these bylaws and
to any express limitation on the proxy's authority appearing on
the face of the appointment form, a corporation is entitled to
accept the proxy's vote or other action as that of the
shareholder making the appointment.
(i) If an appointment form expressly provides, any
proxy holder may appoint, in writing, a substitute to act in
his or her place.
3.8 Shares Held by Nominees.
(a) The corporation may establish a procedure by
which the beneficial owner of shares that are registered in the
name of a nominee is recognized by the corporation as the
shareholder. The extent of this recognition may be determined
in the procedure.
(b) The procedure may set forth
(1) the types of nominees to which it applies;
(2) the rights or privileges that the
corporation recognizes in a beneficial owner;
(3) the manner in which the procedure is
selected by the nominee;
(4) the information that must be provided
when the procedure is selected;
(5) the period for which selection of the
procedure is effective; and
(6) other aspects of the rights and duties
created.
3.9 Corporation's Acceptance of Votes.
(a) If the name signed on a vote, consent, waiver,
or proxy appointment corresponds to the name of a shareholder,
the corporation if acting in good faith is entitled to accept
the vote, consent waiver, or proxy appointment and give it
effect as the act of the shareholder.
(b) If the name signed on a vote, consent, waiver
or proxy appointment does not correspond to the name of its
shareholder, the corporation if acting in good faith is
nevertheless entitled to accept the vote, consent, waiver, or
proxy appointment and give it effect as the act of the
shareholder if:
(1) the shareholder is an entity and the name
signed purports to be that of an officer or agent of the entity;
(2) the name signed purports to be that of an
administrator, executor, guardian, personal representative, or
conservator representing the shareholder and, if the
corporation requests, evidence of fiduciary status acceptable
to the corporation has been presented with respect to the vote,
consent, waiver, or proxy appointment;
(3) the name signed purports to be that of a
receiver, trustee in bankruptcy, or assignee for the benefit of
creditors of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
(4) the name signed purports to be that of a
pledgee, beneficial owner, or attorney in fact of the
shareholder, if the corporation requests, evidence acceptable
to the corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote,
consent, waiver, or proxy appointment; or
(5) two (2) or more persons are the
shareholder as covenants or fiduciaries and the name signed
purports to be the name of at lease one (1) of the co-owners
and the person signing appears to be acting on behalf of all
the co-owners.
(c) The corporation is entitled to reject a vote,
consent, waiver, or proxy appointment if the secretary or other
officer or agent authorized to tabulate votes, acting in good
faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for
the shareholder.
(d) The corporation and its officer or agent who
accepts or rejects a vote, consent, waiver, or proxy
appointment in good faith and in accordance with the standards
of this section are not liable in damages to the shareholder
for the consequences of the acceptance or rejection.
(e) Corporate action based on the acceptance or
rejection of a vote, consent, waiver, or proxy appointment
under this section is valid unless a court of competent
jurisdiction determines otherwise.
3.10 Action by Shareholders Without Meeting.
(a) Any action required or permitted by the Act to
be taken at any annual or special meeting of shareholders of
the corporation may be taken without a meeting, without prior
notice and without a vote, if the action is taken by the
holders of outstanding stock of each voting group entitled to
vote thereon having not less than the minimum number of votes
with respect to each voting group that would be necessary to
authorize or take such action at a meeting at which all voting
groups and shares entitled to vote thereon were present and
voted. In order to be effective, the action must be evidenced
by one or more written consents describing the action taken,
dated and signed by approving shareholders having the requisite
number of votes of each voting group entitled to vote thereon,
and delivered to the corporation by delivery to its principal
office in this state, its principal place of business, the
corporate secretary, or another office or agent of the
corporation having custody of the book in which proceedings of
meetings of shareholders are recorded. No written consent
shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the date of the
earliest dated consent is delivered in the manner required by
this section, written consent signed by the number of holders
required to take action is delivered to the corporation by
delivery as set forth in this section.
(b) Within ten (10) days after obtaining such
authorization by written consent, notice in accordance with
Section 607.0704(3) of the Act must be given to those
shareholders who have not consented in writing.
4. Board of Directors and Officers.
4.1 Qualifications of Directors. Directors must be
natural persons who are eighteen (18) years of age or older but need
not be residents of the State of Florida or shareholders of the
corporation.
4.2 Number of Directors.
(1) The board of directors shall consist of
not less than one (1) nor more than nine (9) individuals.
(2) The number of directors may be increased
or decreased from time to time by amendment to these bylaws.
(3) Directors are elected at the first annual
shareholders' meeting and at each annual meeting thereafter
unless their terms are staggered under Section A.4.4 of these
bylaws.
4.3 Terms of Directors Generally.
(a) The terms of the initial directors of the
corporation expire at the first shareholders' meeting at which
directors are elected.
(b) The terms of all other directors expire at the
next annual shareholders' meeting following their election
unless their terms are staggered under Section A.4.4 of these
bylaws.
(c) A decrease in the number of directors does not
shorten an incumbent director's term.
(d) The term of a director elected to fill a
vacancy expires at the next shareholders' meeting at which
directors are elected.
(e) Despite the expiration of a director's term,
he or she continues to serve until his or her successor is
elected and qualifies or until there is a decrease in the
number of directors.
4.4 Staggered Terms for Directors. The directors of
any corporation organized under the Act may, by the articles of
incorporation, or by amendment to these bylaws adopted by a vote of
the shareholders, be divided into one, two or three classes with the
number of directors in each class being as nearly equal as possible;
the term of office of those of the first class to expire at the
annual meeting next ensuing; of the second class one year
thereafter; at the third class two years thereafter; and at each
annual election held after such classification and election,
directors shall be chosen for a full term, as the case may be, to
succeed those whose terms expire. If the directors have staggered
terms, then any increase or decrease in the number of directors
shall be so apportioned among the classes as to make all classes as
nearly equal in number as possible.
4.5 Vacancy on Board.
(a) Whenever a vacancy occurs on a board of
directors, including a vacancy resulting from an increase in
the number of directors, it may be filled by the affirmative
vote of a majority of the remaining directors.
(b) A vacancy that will occur at a specific later
date (by reason of resignation effective at a later date) may
be filled before the vacancy occurs but the new director may
not take office until the vacancy occurs.
4.6 Compensation of Directors. The board of directors
may fix the compensation of directors.
4.7 Meetings.
(a) The board of directors may hold regular or
special meetings in or out of the State of Florida.
(b) A majority of the directors present, whether
or not a quorum exists, may adjourn any meeting of the board of
directors to another time and place. Notice of any such
adjourned meeting shall be given to the directors who were not
present at the time of the adjournment and, unless the time and
place of the adjourned meeting are announced at the time of the
adjournment, to the other directors.
(c) Meetings of the board of directors may be
called by the chairman of the board or by the president.
(d) The board of directors may permit any or all
directors to participate in a regular or special meeting by, or
conduct the meeting through the use of, any means of
communication by which all directors participating may
simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be
present in person at the meeting.
4.8 Action by Directors Without a Meeting.
(a) Action required or permitted by the Act to be
taken at a board of directors' meeting or committee meeting may
be taken without a meeting if the action is taken by all
members of the board or of the committee. The action must be
evidenced by one or more written consents describing the action
taken and signed by each director or committee member.
(b) Action taken under this section is effective
when the last director signs the consent, unless the consent
specifies a different effective date.
(c) A consent signed under this section has the
effect of a meeting vote and may be described as such in any
document.
4.9 Notice of Meetings. Regular and special meetings
of the board of directors may be held without notice of the date,
time, place or purpose of the meeting.
4.10 Waiver of Notice. Notice of a meeting of the board
of directors need not be given to any director who signs a waiver of
notice either before or after the meeting. Attendance of a director
at a meeting shall constitute a waiver of notice of such meeting and
a waiver of any and all objections to the place of the meeting, the
time of the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the
meeting or promptly upon arrival at the meeting, any objection to
the transaction of business because the meeting is not lawfully
called or convened.
4.11 Quorum and Voting.
(a) A quorum of a board of directors consists of a
majority of the number of directors prescribed by the articles
of incorporation or these bylaws.
(b) If a quorum is present when a vote is taken,
the affirmative vote of a majority of directors present is the
act of the board of directors.
(c) A director of a corporation who is present at
a meeting of the board of directors or a committee of the board
of directors when corporate action is taken is deemed to have
assented to the action taken unless:
(1) He objects at the beginning of the
meeting (or promptly upon his or her arrival) to holding it or
transacting specified business at the meeting; or
(2) He votes against or abstains from the
action taken.
4.12 Committees.
(a) The board of directors, by resolution adopted
by a majority of the full board of directors, may designate
from among its members an executive committee and one or more
other committees each of which, to the extent provided in such
resolution, shall have and may exercise all the authority of
the board of directors, except that no such committee shall
have the authority to:
(1) Approve or recommend to shareholders
actions or proposals required by the Act to be approved by
shareholders.
(2) Fill vacancies on the board of directors
or any committee thereof.
(3) Adopt, amend or repeal these bylaws.
(4) Authorize or approve the reacquisition of
shared unless pursuant to a general formula or method specified
by the board of directors.
(5) Authorize or approve the issuance or sale
or contract for the sale of shares, or determine the
designation and relative rights, preferences, and limitations
of a voting group except that the board of directors may
authorize a committee (or a senior executive officer of the
corporation) to do so within limits specifically prescribed by
the board of directors.
(b) The sections of these bylaws which govern
meetings, notice and waiver of notice, and quorum and voting
requirements of the board of directors apply to committees and
their members as well.
(c) Each committee must have two or more members
who serve at the pleasure of the board of directors. The
board, by resolution adopted in accordance herewith, may
designate one or more directors as alternate members of any
such committee who may act in the place and stead of any absent
member or members at any meeting of such committee.
(d) Neither the designation of any such committee,
the delegation thereto of authority, nor action by such
committee pursuant to such authority shall alone constitute
compliance by any member of the board of directors not a member
of the committee in question with his or her responsibility to
act in good faith, in a manner he or she reasonably believes to
be in the best interests of the corporation, and with such care
as an ordinarily prudent person in a like position would use
under similar circumstances.
4.13 Loans to Officers, Directors and Employees;
Guaranty of Obligations. The Company may lend money to, guaranty
any obligation of, or otherwise assist any officer, director, or
employee of the corporation or of a subsidiary, whenever, in the
judgment of the board of directors, such loan, guaranty, or other
assistance may be with or without interest and may be unsecured or
secured in such a manner as the board of directors shall approve,
including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this section shall be deemed to deny,
limit, or restrict the powers of guaranty or warranty of any
corporation at common law or under any statute. Loans, guaranties,
or other types of assistance are subject to section A.4.19.
4.14 Required Officers.
(a) The corporation shall have such officers as
the board of directors may appoint from time to time.
(b) A duly appointed officer may appoint one or
more assistant officers.
(c) The board of directors shall delegate to one
of the officers responsibility for preparing minutes of the
directors' and shareholders' meetings and for authenticating
records of the corporation.
(d) The same individual may simultaneously hold
more than one office in the corporation.
4.15 Duties of Officers. Each officer has the authority
and shall perform the duties set forth in a resolution or
resolutions of the board of directors or by direction of any officer
authorized by the board of directors to prescribe the duties of
other officers.
4.16 Resignation and Removal of Officers.
(a) An officer may resign at any time by
delivering notice to the corporation. A resignation is
effective when the notice is delivered unless the notice
specifies a later effective date. If a resignation is made
effective at a later date and the corporation accepts the
future effective date, the board of directors may fill the
vacancy before the effective date if the board of directors
provides that the successor does not take office until the
effective date.
(b) The board of directors may remove any officer
at any time with or without cause. Any assistant officer, if
appointed by another officer, may likewise be removed by the
board of directors or by the officer which appointed him in
accordance with these bylaws.
4.17 Contract Rights of Officers. The appointment of an
officer does not itself create contract rights.
4.18 General Standards for Directors.
(a) A director shall discharge his or her duties
as a director, including his or her duties as a member of a
committee:
(1) in good faith;
(2) with the care an ordinarily prudent
person in a like position would exercise under similar
circumstances; and
(3) in a manner he or she reasonably believes
to be in the best interests of the corporation.
(b) In discharging his or her duties, a director
is entitled to rely on information, opinions, reports or
statements, including financial statements and other financial
data, if prepared or presented by:
(1) One or more officers or employees of the
corporation whom the director reasonably believes to be
reliable and competent in the matters presented;
(2) Legal counsel, public accountants, or
other persons as to matters the director reasonably believes
are within the persons' professional or expert competence; or
(3) A committee of the board of directors of
which he or she is not a member if the director reasonably
believes the committee merits confidence.
(c) In discharging his or her duties, a director
may consider such factors as the director deems relevant,
including the long-term prospects and interests of the
corporation and its shareholders, and the social, economic,
legal, or other effects of any action on the employees,
suppliers, customers of the corporation or its subsidiaries,
the communities and society in which the corporation or its
subsidiaries operate, and the economy of the state and the nation.
(d) A director is not acting in good faith if he
or she has knowledge concerning the matter in question that
makes reliance otherwise permitted by subsection A.4.18(b)
unwarranted.
(e) A director is not liable for any action taken
as a director, or any failure to take any action, if he or she
performed the duties of his or her office in compliance with
this section.
4.19 Director Conflicts of Interest. No contract or
other transaction between a corporation and one or more interested
directors shall be either void or voidable because of such
relationship or interest, because such director or directors are
present at the meeting of the board of directors or a committee
thereof which authorizes, approves or ratifies such contract or
transaction, or because his or their votes are counted for such
purpose, if:
(a) The fact of such relationship or interest is
disclosed or known to the board of directors or committee which
authorizes, approves or ratifies the contract or transactions
by a vote or consent sufficient for the purpose without
counting the votes or consents of such interested directors;
(b) The fact of such relationship or interest is
disclosed or known to the shareholders entitled to vote and
they authorize, approve or ratify such contract or transaction
by vote or written consent; or
(c) The contract or transaction is fair and
reasonable as to the corporation at the time it is authorized
by the board, a committee or the shareholders.
Common or interested directors may be counted in
determining the presence of a quorum at the meeting of the board of
directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction.
For the purpose of Paragraph A.4.19(b) above, a conflict
of interest transaction is authorized, approved or ratified if it
receives the vote of a majority of the shares entitled to be counted
under this subsection. Shares owned by or voted under the control
of a director who has a relationship or interest in the conflict of
interest transaction may not be counted in a vote of shareholders to
determine whether to authorize, approve or ratify a conflict of
interest transaction under paragraph A.4.19(b). The vote of those
shares, however, is counted in determining whether the transaction
is approved under other sections of the Act. A majority of the
shares, whether or not present, that are entitled to be counted in a
vote on the transaction under this subsection constitutes a quorum
for the purpose of taking action under this section.
4.20 Resignation of Directors.
(a) A director may resign at any time by
delivering written notice to the board of directors or its
chairman or to the corporation.
(b) A resignation is effective when the notice is
delivered unless the notice specifies a later effective date.
If a resignation is made effective at a later date, the board
of directors may fill the pending vacancy before the effective
date if the board of directors provides that the successor does
not take office until the effective date.
5. Indemnification of Directors, Officers, Employees and
Agents.
5.1 Directors, Officers, Employees and Agents.
(a) The corporation shall have power to indemnify
any person who was or is a party to any proceeding (other than
an action by, or in the right of, the corporation), by reason
of the fact that he or she is or was a director, officer,
employee, or agent of the corporation or is or was serving at
the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against liability incurred
in connection with such proceeding, including any appeal
thereof, if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not apposed to, the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create
a presumption that the person did not act in good faith and in
a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation or, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The corporation shall have power to indemnify
any person, who was or is a party to any proceeding by or in
the right of the corporation to procure a judgment in its favor
by reason of the fact that he or she is or was a director,
officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director,
officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the
judgment of the board of directors, the estimated expense of
litigating the proceeding to conclusion, actually and
reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof.
Such indemnification shall be authorized if such person acted
in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the corporation,
except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable unless,
and only to the extent that, the court in which such proceeding
was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(c) To the extent that a director, officer,
employee, or agent of the corporation has been successful on
the merits or otherwise in defense of any proceeding referred
to in subsections A.5.1(a), A.5.1(b) or A.5.1(a), A.5.1(b), or
in defense of any claim, issue, or matter therein, he shall be
indemnified against expenses actually and reasonably incurred
by him in connection therewith.
(d) Any indemnification under subsections
A.5.1(a), A.5.1(b) or A.5.1(a), A.5.1(b), unless pursuant to a
determination by a court, shall be made by the corporation only
as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he or she has met the
applicable standard of conduct set forth in subsections
A.5.1(a), A.5.1(b) or A.5.1(a), A.5.1(b). Such determination
shall be made:
(1) By the board of directors by a majority
vote of a quorum consisting of directors who were not parties
to such proceeding;
(2) If such a quorum is not obtainable or,
even if obtainable, by majority vote of a committee duly
designated by the board of directors (in which directors who
are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(3) By independent legal counsel:
(A) Selected by the board of directors
prescribed in paragraph A.5.1(d)(1) or the committee
prescribed in paragraph A.5.1(d)(2); or
(B) If a quorum of the directors cannot
be obtained for paragraph A.5.1(d)(1) and the committee
cannot be designed under paragraph A.5.1(d)(2), selected
by a majority vote of the full board of directors (in
which directors who are parties may participate); or
(4) By the shareholders by a majority vote of
a quorum consisting of shareholders who were not parties to
such proceeding or, if no such quorum is obtainable, by a
majority vote of shareholders who were not parties to such
proceeding.
(e) Evaluation of the reasonableness of expenses
and authorization of indemnification shall be made in the same
manner as the determination that indemnification is
permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by
paragraph A.5.1(d)(3) shall evaluate the reasonableness of
expenses and may authorize indemnification.
(f) Expenses incurred by an officer or director in
defending a civil or criminal proceeding may be paid by the
corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is
ultimately found not to be entitled to indemnification by the
corporation pursuant to this section. Expenses incurred by
other employees and agents may be paid in advance upon such
terms or conditions that the board of directors deems appropriate.
(g) The indemnification and advancement of
expenses provided pursuant to this section are not exclusive,
and the corporation may make any other or further
indemnification or advancement of expenses of any of its
directors, officers, employees, or agents, under any bylaw,
agreement, vote of shareholders or disinterested directors, or
otherwise, both as to action in his or her official capacity
and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not
be made to or on behalf of any director, officer, employee, or
agent if a judgment or other final adjudication establishes
that his or her actions, or omissions to act, were material to
the cause of action so adjudicated and constitute:
(1) A violation of the criminal law, unless
the director, officer, employee, or agent had reasonable cause
to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful;
(2) A transaction from which the director,
officer, employee, or agent derived an improper personal benefit;
(3) In the case of a director, a circumstance
under which the liability provisions of Section 607.0834 under
the Act are applicable; or
(4) Willful misconduct or a conscious
disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a
judgment in its favor or in a proceeding by or in the right of
a shareholder.
(h) Indemnification and advancement of expenses as
provided in this section shall continue as, unless otherwise
provided when authorized or ratified, to a person who has
ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and
administrators of such a person, unless otherwise provided when
authorized or ratified.
(i) Notwithstanding the failure of the corporation
to provide indemnification, and despite any contrary
determination of the board or of the shareholders in the
specific case, a director, officer, employee, or agent of the
corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the
court conducting the proceeding, to the circuit court, or to
another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it
considers necessary, may order indemnification and advancement
of expenses, including expenses incurred in seeking
court-ordered indemnification or advancement of expenses, if it
determines that:
(1) The director, officer, employee, or agent
if entitled to mandatory indemnification under subsection
A.5.1(c), in which case the court shall also order the
corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of
expenses;
(2) The director, officer, employee or agent
is entitled to indemnification or advancement of expenses, or
both, by virtue of the exercise by the corporation of its power
pursuant to subsection A.5.1(g); or
(3) The director, officer, employee, or agent
is fairly and reasonably entitled to indemnification or
advancement of expenses, or both, in view of all the relevant
circumstances, regardless of whether such person met the
standard of conduct set forth in subsection A.5.1(a),A.5.1(b),
A.5.1(a), A.5.1(b) or A.5.1(g).
(j) For purposes of this section, the term
"corporation: includes, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger, so that any person who is or was a director, officer,
employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise, is in
the same position under this section with respect to the
resulting or surviving corporation as he or she would have with
respect to such constituent corporation if its separate
existence had continued.
(k) For purposes of this section:
(1) The term "other enterprises" includes
employee benefits plans;
(2) The term "expenses" includes counsel
fees, including those for appeal;
(3) The term "liability" includes obligations
to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to any employee benefit plan),
and expenses actually and reasonably incurred with respect to a
proceeding;
(4) The term "proceeding" includes any
threatened, pending, or completed action, suit or other type of
proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal;
(5) The term "agent" includes a volunteer;
(6) The term "serving at the request of the
corporation" includes any service as a director, officer,
employee, or agent of the corporation that imposes duties on
such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries; and
(7) The term "not opposed to the best
interest of the corporation" describes the actions of a person
who acts in good faith and in a manner he or she reasonably
believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
(l) The corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee, or agent of the corporation or is
or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against
any liability asserted against him or her and incurred by him
or her in any such capacity or arising out of his or her status
as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of
this section.
6. Office and Agent.
6.1 Registered Office and Registered Agent.
(a) The corporation shall have and continuously
maintain in the State of Florida:
(1) A registered office which may be the same
as its place of business;
(2) A registered agent, who, may be either:
(A) An individual who resides in the
State of Florida whose business office is identical with
such registered office; or
(B) Another corporation or
not-for-profit corporation as defined in Chapter 617 of
the Act, authorized to transact business or conduct its
affairs in the State of Florida, having a business office
identical with the registered office.
6.2 Change of Registered Office or Registered Agent;
Resignation of Registered Agent.
(a) The corporation may change its registered
office or its registered agent upon filing with the Department
of State of the State of Florida a statement of change setting
forth:
(1) The name of the corporation;
(2) The street address of its current
registered office;
(3) If the current registered office is to be
changes, the street address of the new registered office;
(4) The name of its current registered agent;
(5) If its current registered agent is to be
changes, the name of the new registered agent and the new
agent's written consent (either on the statement or attached to
it) to the appointment;
(6) That the street address of its registered
office and the street address of the business office of its
registered agent, as changed, will be identical;
(7) That such change was authorized by
resolution duly adopted by its board of directors or by an
officer of the corporation so authorized by the board of
directors.
7. Shares, Options, Dividends and Distributions.
7.1 Authorized Shares.
(a) The articles of incorporation prescribe the
classes of shares and the number of shares of each class that
the corporation is authorized to issue, as well as a
distinguishing designation for each class, and prior to the
issuance of shares of a class the preferences, limitations, and
relative rights of that class must be described in the articles
of incorporation.
(b) The articles of incorporation must authorize:
(1) One or more classes of shares that
together have unlimited voting rights, and
(2) One or more classes of shares (which may
be the same class or classes as those with voting rights) that
together are entitled to receive the net assets of the
corporation upon dissolution.
(c) The articles of incorporation may authorize
one or more classes of shares that have special, conditional,
or limited voting rights, or no rights, or no right to vote,
except to the extent prohibited by the Act;
(1) Are redeemable or convertible as
specified in the articles of incorporation;
(2) Entitle the holders to distributions
calculated in any manner, including dividends that may be
cumulative, non-cumulative, or partially cumulative;
(3) Have preference over any class of shares
with respect to distributions, including dividends and
distributions upon the dissolution of the corporation.
(d) Shares which are entitled to preference in the
distribution of dividends or assets shall not be designated as
common shares. Shares which are not entitled to preference in
the distribution of dividends or assets shall be common shares
and shall not be designated as preferred shares.
7.2 Terms of Class or Series Determined by Board of
Directors.
(a) If the articles of incorporation so provide,
the board of directors may determine, in whole or in part, the
preferences, limitations, and relative rights (within the
limits set forth in Section A.7.1 of:
(1) Any class of shares before the issuance
of any shares of that class, or
(2) One or more series within a class before
the issuance of any shares of that series.
(b) Each series of a class must be given a
distinguishing designation.
(c) All shares of a series must have preferences,
limitations, and relative rights identical with those of other
shares of the same series and, except to the extent otherwise
provided in the description of the series, of those of other
series of the same class.
(d) Before issuing any shares of a class or series
created under this section, the corporation must deliver to the
Department of State of the State of Florida for filing articles
of amendment, which are effective without shareholder action,
in accordance with Section 607.0602 of the Act.
7.3 Issued and Outstanding Shares.
(a) A corporation may issue the number of shares
of each class or series authorized by the articles of
incorporation. Shares that are issued are outstanding shares
until they are reacquired, redeemed, converted, or cancelled.
(b) The reacquisition, redemption, or conversion
of outstanding shares is subject to the limitations of
subsection A.7.3(c) and to Section 607.06401 of the act.
(c) At all times that shares of the corporation
are outstanding, one or more shares that together have
unlimited voting rights and one or more shares that together
are entitled to receive the net assets of the corporation upon
dissolution must be outstanding.
7.4 Issuance of Shares.
(a) The board of directors may authorize shares to
be issued for consideration consisting of any tangible property
or benefit to the corporation, including cash, promissory
notes, services performed, promises to perform services
evidenced by a written contract, or other securities of the
corporation.
(b) Before the corporation issues shares, the
board of directors must determine that the consideration
received or to be received for shares to be issued is adequate.
That determination by the board of directors is conclusive
insofar as the adequacy of consideration for the issuance of
shares relates to whether the shares are validly issued, fully
paid, and non-assessable. When it cannot be determined that
outstanding shares are fully paid and non-assessable, there
shall be a conclusive presumption that such shares are fully
paid and non-assessable if the board of directors makes a good
faith determination that there is no substantial evidence that
the full consideration for such shares has not been paid.
(c) When the corporation receives the
consideration for which the board of directors authorized the
issuance of shares, the shares issued therefor are fully paid
and non-assessable. Consideration in the form of a promise to
pay money or a promise to perform services is received by the
corporation at the time of the making of the promise, unless
the agreement specifically provides otherwise.
(d) The corporation may place in escrow shares
issued for a contract for future services or benefits or a
promissory note, or make other arrangements to restrict the
transfer of the shares, and may credit distributions in respect
of the shares against their purchase price, until the services
are performed, the note is paid, or the benefits received. If
the services are not performed, the shares escrowed or
restricted and the distributions credited may be cancelled in
whole or in part.
7.5 Form and Content of Certificates.
(a) Shares may but need not be represented by
certificates. Unless the Act or another statute expressly
provides otherwise, the rights and obligations of shareholders
are identical whether or not their shares are represented by
certificates.
(b) At a minimum, each share certificate must
state on its face:
(1) The name of the issuing corporation and
that the corporation is organized under the laws of the State
of Florida;
(2) The name of the person to whom issued; and
(3) The number and class of shares and the
designation of the series, if any, the certificate represents.
(c) If the shares being issued are of different
classes of shares or different series within a class, the
designations, relative rights, preferences, and limitations
applicable to each class and the variations in rights,
preferences, and limitations determined for each series (and
the authority of the board of directors to determine variations
for future series) must be summarized on the front or back of
each certificate. Alternatively, each certificate may state
conspicuously on its front or back that the corporation will
furnish the shareholder a full statement of this information on
request and without charge.
(d) Each share certificate:
(1) Must be signed (either manually or in
facsimile) by an officer or officers designated by the board of
directors, and
(2) May bear the corporate seal or its
facsimile.
(e) If the person who signed (either manually or
in facsimile) a share certificate no longer holds office when
the certificate is issued, the certificate is nevertheless valid.
(f) Nothing in this section may be construed to
invalidate any share certificate validly issued and outstanding
under the Act on July 1, 1990.
7.6 Shares Without Certificates.
(a) The board of directors of the corporation may
authorize the issue of some or all of the shares of any or all
of its classes or series without certificates. The
authorization does not affect shares already represented by
certificates until they are surrendered to the corporation.
(b) Within a reasonable time after the issue or
transfer of shares without certificates, the corporation shall
send the shareholder a written statement of the information
required on certificates by the Act.
7.7 Restriction on Transfer of Shares and Other
Securities.
(a) The articles of incorporation, these bylaws,
an agreement among shareholders, or an agreement between
shareholders and the corporation may impose restrictions on the
transfer or registration of transfer of shares of the
corporation. A restriction does not affect shares issued
before the restriction was adopted unless the holders of such
shares are parties to the restriction agreement or voted in
favor of the restriction.
(b) A restriction on the transfer or registration
of transfer is valid and enforceable against the holder or a
transferee of the holder if the restriction is authorized by
this section, and effected in compliance with the provisions of
the Act, including having a proper purpose as referred to in
the Act.
7.8 Shareholder's Pre-emptive Rights. The shareholders
of the corporation do not have a pre-emptive right to acquire the
corporation's unissued shares.
7.9 Corporation's Acquisition of its Own Shares.
(a) The corporation may acquire its own shares,
and, unless otherwise provided in the articles of incorporation
or except as provided in subsection A.7.9(d), shares so
acquired constitute authorized but unissued shares of the same
class but undesignated as to series.
(b) If the articles of incorporation prohibit the
reissue of acquired shares, the number of authorized shares is
reduced by the number of shares acquired, effective upon
amendment of the articles of incorporation.
(c) Articles of amendment may be adopted by the
board of directors without shareholder action, shall be
delivered to the Department of State of the State of Florida
for filing, and shall set forth the information required by
Section 607.0631 of the Act.
(d) Shares of the corporation in existence on June
30, 1990, which are treasury shares under Section 607.004(18),
Florida Statutes (1987), shall be issued, but not outstanding,
until cancelled or disposed of by the corporation.
7.10 Share Options.
(a) Unless the articles of incorporation provide
otherwise, the corporation may issue rights, options, or
warrants for the purchase of shares of the corporation. The
board of directors shall determine the terms upon which the
rights, options, or warrants are issued, their form and
content, and the consideration for which the shares are to be
issued.
(b) The terms and conditions of stock rights and
options which are created and issued by the corporation, or its
successor, and which entitle the holders thereof to purchase
from the corporation shares of any class of classes, whether
authorized by unissued shares, treasury shares, or shares to be
purchased or acquired by the corporation, may include, without
limitation, restrictions, or conditions that preclude or limit
the exercise, transfer, receipt, or holding of such rights or
options by any person or persons, including any person or
persons owning or offering to acquire a specified number or
percentage of the outstanding common shares or other securities
of the corporation, or any transferee or transferees of any
such person or persons, or that invalidate or void such rights
or options held by any such person or persons or any such
transferee or transferees.
7.11 Terms and Conditions of Stock Rights and Options.
The terms and conditions of the stock rights and options which are
created and issued by the corporation [or its successors], and which
entitle the holders thereof to purchase from the corporation shares
of any class or classes, whether authorized but unissued shares,
treasury shares, or shares to be purchased or acquired by the
corporation, may include, without limitation, restrictions or
conditions that preclude or limit the exercise, transfer, receipt or
holding of such rights or options by any person or persons,
including any person or persons owning or offering to acquire a
specified number or percentage of the outstanding common shares or
other securities of the corporation, or any transferee or
transferees of any such person or persons, or that invalidate or
void such rights or options held by any such person or persons or
any such transferee or transferees.
7.12 Share Dividends.
(a) Shares may be issued pro rata and without
consideration to the corporation's shareholders or to the
shareholders of one or more or series. An issuance of shares
under this subsection is a share dividend.
(b) Shares of one class or series may not be
issued as a share dividend in respect of shares of another
class or series unless:
(1) The articles of incorporation so authorize;
(2) A majority of the votes entitled to be
case by the class or series to be issued approves the issue; or
(3) There are no outstanding shares of the
class or series to be issued.
(c) If the board of directors does not fix the
record date for determining shareholders entitled to a share
dividend, it is the date the board of directors authorizes the
share dividend.
7.13 Distributions to Shareholders.
(a) The board of directors may authorize and the
corporation may make distributions to its shareholders subject
to restriction by the articles of incorporation and the
limitations in subsection A.7.13(c).
(b) If the board of directors does not fix the
record date for determining shareholders entitled to a
distribution (other than one involving a purchase, redemption,
or other acquisition of the corporation's shares), it is the
date the board of directors authorizes the distribution.
(c) No distribution may be made if, after giving
it effect:
(1) The corporation would not be able to pay
its debts as they become due in the usual course of business; or
(2) The corporation's total assets would be
less than the sum of its total liabilities plus (unless the
articles of incorporation permit otherwise) the amount that
would be needed, if the corporation were to be dissolved at the
time of the distribution, to satisfy the preferential rights
upon dissolution of shareholders whose preferential rights are
superior to those receiving the distribution.
(d) The board of directors may base a
determination that a distribution is not prohibited under
subsection A.7.13(c) either on financial statements prepared on
the basis of accounting practices and principles that are
reasonable in the circumstances or on a fair valuation or other
method that is reasonable in the circumstances. In the case of
any distribution based upon such a valuation, each such
distribution shall be identified as a distribution based upon a
current valuation of assets, and the amount per share paid on
the basis of such valuation shall be disclosed to the
shareholders concurrent with their receipt of the distribution.
(e) Except as provided in subsection A.7.13(g),
the effect of a distribution under subsection A.7.13(c) is
measured:
(1) In the case of distribution by purchase,
redemption, or other acquisition of the corporation's shares,
as of the earlier of:
(A) The date money or other property is
transferred or debt incurred by the corporation; or
(B) The date the shareholder ceases to
be a shareholder with respect to the acquired shares;
(2) In the case of any other distribution of
indebtedness, as of the date the indebtedness is distributed;
(3) In all other cases, as of:
(A) The date the distribution is
authorized if the payment occurs within one hundred twenty
(120) days after the date of authorization; or
(B) The date the payment is made if it
occurs more than one hundred twenty (120) days after the
date of authorization.
(f) A corporation's indebtedness to a shareholder
incurred by reason of a distribution made in accordance with
this section is at parity with the corporation's indebtedness
to its general, unsecured creditors except to the extent
subordinated by agreement.
(g) Indebtedness of the corporation, including
indebtedness issued as a distribution, is not considered a
liability for purposes of determinations under subsection
A.7.13(c) if its terms provide that payment of principal and
interest are made only if and to the extent that payment of a
distribution to shareholders could then be made under this
section. If the indebtedness is issued as a distribution, each
payment of principal or interest is treated as a distribution,
the effect of which is measured on the date the payment is
actually made.
8. Amendment of Articles and Bylaws.
8.1 Authority to Amend the Articles of Incorporation.
(a) The corporation may amend its articles of
incorporation at any time to add or change a provision that is
required or permitted in the articles of incorporation or to
delete a provision not required in the articles of
incorporation. Whether a provision is required or permitted in
the articles of incorporation is determined as of the effective
date of the amendment.
(b) A shareholder of the corporation does not have
a vested property right resulting from any provision in the
articles of incorporation, including provisions relating to
management, control, capital structure, dividend entitlement,
or purpose or duration of the corporation.
8.2 Amendment by Board of Directors. The corporation's
board of directors may adopt one or more amendments to the
corporation's articles of incorporation without shareholder action:
(a) To extend the duration of the corporation if
it was incorporated at a time when limited duration was
required by law;
(b) To delete names and addresses of initial
directors;
(c) To delete the name and address of the initial
registered agent or registered office, if a statement of change
is on file with the Department of State of the State of Florida;
(d) To delete any other information contained in
the articles of incorporation that is solely of historical
interest;
(e) To change each issued and unissued authorized
share of an outstanding class into a greater number of whole
shares if the corporation has only shares of that class
outstanding;
(f) To delete the authorization for a class or
series of shares authorized pursuant to Section 607.0602 of the
Act, if no shares of such class or series have been issued;
(g) To change the corporate name by substituting
the word "corporation," "incorporated," or "company," or the
abbreviation "corp.," "Inc.," or "Co.," for a similar word or
abbreviation in the name, or by adding, deleting, or changing a
geographical attribution for the name; or
(h) To make any other change expressly permitted
by the Act to be made without shareholder action.
8.3 Amendment of Bylaws by Board of Directors. The
corporation's board of directors may amend or repeal the
corporation's bylaws unless the Act reserves the power to amend a
particular bylaw provision exclusively to the shareholders.
8.4 Bylaw Increasing Quorum or Voting Requirements for
Directors.
(a) A bylaw that fixes a greater quorum or voting
requirement for the board of directors may be amended or repealed:
(1) If originally adopted by the
shareholders, only by the shareholders;
(2) If originally adopted by the board of
directors, either by the shareholders or by the board of
directors.
(b) A bylaw adopted or amended by the shareholders
that fixes a greater quorum or voting requirement for the board
of directors may provide that it may be amended or repealed
only by a specific vote of either the shareholders or the board
of directors.
(c) Action by the board of directors under
paragraph A.8.4(a)(2) to adopt or amend a bylaw that changes
the quorum or voting requirement for the board of directors
must meet the same quorum requirement and be adopted by the
same vote required to take action under the quorum and voting
requirement then in effect or proposed to be adopted, whichever
is greater.
9. Records and Reports.
9.1 Corporate Records.
(a) The corporation shall keep as permanent
records minutes of all meetings of its shareholders and board
of directors, a record of all actions taken by the shareholders
or board of directors without a meeting, and a record of all
actions taken by a committee of the board of directors in place
of the board of directors on behalf of the corporation.
(b) The corporation shall maintain accurate
accounting records.
(c) The corporation or its agent shall maintain a
record of its shareholders in a form that permits preparation
of a list of the names and addresses of all shareholders in
alphabetical order by class of shares showing the number and
series of shares held by each.
(d) The corporation shall maintain its records in
written form or in another form capable of conversion into
written form within a reasonable time.
(e) The corporation shall keep a copy of the
following records:
(1) Its articles or restated articles of
incorporation and all amendments to them currently in effect;
(2) Its bylaws or restated bylaws and all
amendments to them currently in effect;
(3) Resolutions adopted by the board of
directors creating one or more classes or series of shares and
finding their relative rights, preferences, and limitations, if
shares issued pursuant to those resolutions are outstanding;
(4) The minutes of all shareholders' meetings
and records of all action taken by shareholders without a
meeting for the past three (3) years;
(5) Written communications to all
shareholders generally or all shareholders of a class or series
within the past three (3) years, including the financial
statements furnished for the past three (3) years;
(6) A list of the names and business street
addresses of its current directors and officers; and
(7) Its most recent annual report delivered
to the Department of State of the State of Florida.
9.2 Financial Statements for Shareholders
(a) Unless modified by resolution of the
shareholders within one hundred twenty (120) days of the close
of each fiscal year, the corporation shall furnish its
shareholders annual financial statements which may be
consolidated or combined statements of the corporation and one
or more of its subsidiaries, as appropriate, that include a
balance sheet as of the end of the fiscal year, an income
statement for that year, and a statement of cash flows for that
year. If financial statements are prepared for the corporation
on the basis of generally-accepted accounting principles, the
annual financial statements must also be prepared on that basis.
(b) If the annual financial statements are
reported upon by a public accountant, his report must accompany
them. If not, the statements must be accompanied by a
statement of the president or the person responsible for the
corporation's accounting records:
(1) Stating his reasonable belief whether the
statements were prepared on the basis of generally-accepted
accounting principles and, if not, describing the basis of
preparation; and
(2) Describing any respects in which the
statements were not prepared on a basis of accounting
consistent with the statements prepared for the preceding year.
(c) The corporation shall mail the annual
financial statements to each shareholder within one hundred
twenty (120) days after the close of each fiscal year or within
such additional time thereafter as is reasonably necessary to
enable the corporation to prepare its financial statements, if
for reasons beyond the corporation's control, it is unable to
prepare its financial statements within the prescribed period.
Thereafter, on written request from a shareholder who was not
mailed the statements, the corporation shall mail him the
latest annual financial statements.
9.3 Other Reports to Shareholders.
(a) If the corporation indemnifies or advances
expenses to any director, officer, employee or agent otherwise
than by court order or action by the shareholders or by an
insurance carrier pursuant to insurance maintained by the
corporation, the corporation shall report the indemnification
or advance in writing to the shareholders with or before the
notice of the next shareholders' meeting, or prior to such
meeting if the indemnification or advance occurs after the
giving of such notice but prior to the time such meeting is
held, which report shall include a statement specifying the
persons paid, the amounts paid, and the nature and status at
the time of such payment of the litigation or threatened
litigation.
(b) If the corporation issues or authorizes the
issuance of shares for promises to render services in the
future, the corporation shall report in writing to the
shareholders the number of shares authorized or issued, and the
consideration received by the corporation, with or before the
notice of the next shareholders' meeting.
9.4 Annual Report for Department of State.
(a) The corporation shall deliver to the
Department of State of the State of Florida for filing a sworn
annual report on such forms as the Department of State of the
State of Florida prescribes that sets forth the information
prescribed by Section 607.1622 of the Act.
(b) Proof to the satisfaction of the Department of
Sate of the State of Florida on or before July 1 of each
calendar year that such report was deposited in the United
States mail in a sealed envelope, properly addressed with
postage prepaid, shall be deemed in compliance with this
requirement.
(c) Each report shall be executed by the
corporation by an officer or director of, if the corporation is
in the hands of a receiver or trustee, shall be executed on
behalf of the corporation by such receiver or trustee, and the
signing thereof shall have the same legal effect as if made
under oath, without the necessity of appending such oath thereto.
(d) Information in the annual report must be
current as of the date the annual report is executed on behalf
of the corporation.
(e) Any corporation failing to file an annual
report which complies with the requirements of this section
shall not be permitted to maintain or defend any action in any
court of this state until such report is filed and all fees and
taxes due under the Act are paid and shall be subject to
dissolution or cancellation of its certificate of authority to
do business as provided in the Act.
10. Miscellaneous.
10.1 Application of Florida Law. Whenever any provision
of these bylaws is inconsistent with any provision of the Florida
Business Corporation Act, Statutes 607, as they may be amended from
time to time, then in such instance Florida law shall prevail.
10.2 Conflicts with Articles of Incorporation. In the
event that any provision contained in these bylaws conflicts with
any provision of the corporation's articles of incorporation, as
amended from time to time, the provisions of the articles of
incorporation shall prevail and be given full force and effect, to
the full extent permissible under the Act.
10.3 Definition of the "Act". All references contained
herein to the "Act" or to sections of the "Act" shall be deemed to
be in reference to the Florida Business Corporation Act.
10.4 Fiscal Year. The fiscal year of the corporation
shall be determined by resolution of the board of directors.