SECOND RESTATED
BYLAWS
OF
TMI HOLDINGS, INC.
A FLORIDA CORPORATION
SECOND RESTATED
BYLAWS
OF
TMI HOLDINGS, INC.
a Florida corporation
ARTICLE I 1
OFFICES 1
Section 1. Principal Office 1
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1
.. 1
Section 2. Other Offices 1
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ARTICLE II 1
DIRECTORS - MANAGEMENT 1
Section 1. Powers, Standard of Care 1
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Section 2. Number and Qualification of Directors 2
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Section 3. Election and Term of Office of Directors 2
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Section 4. Vacancies 2
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Section 5. Removal of Directors 3
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Section 6. Place of Meetings 3
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Section 7. Annual Meetings 4
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Section 8. Other Regular Meetings 4
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Section 9. Special Meetings/Notices 4
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Section 10. Waiver of Notice 4
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Section 11. Quorums 5
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Section 12. Adjournment 5
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Section 13. Notice of Adjournment 5
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Section 14. Board of Directors Provided by Articles or Bylaws 5
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Section 15. Directors Action by Unanimous Written Consent 5
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Section 16. Compensation of Directors 5
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Section 17. Committees 5
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Section 18. Meetings and Action of Committees 6
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Section 19. Advisory Directors 6
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ARTICLE III 6
OFFICERS 6
Section 1. Officers 6
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Section 2. Election of Officers 6
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Section 3. Subordinate Officers, Etc. 6
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Section 4. Removal and Resignation of Officers 7
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Section 5. Vacancies 7
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Section 6. Chairman of the Board 7
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Section 7. President and Chief Executive Officer 7
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Section 9. Secretary 7
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Section 10. Chief Financial Officer or Treasurer. 8
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ARTICLE IV 8
SHAREHOLDERS' MEETINGS 8
Section 1. Place of Meetings 8
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Section 2. Annual Meeting 8
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Section 3. Special Meetings 9
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Section 4. Notice of Meetings - Reports 9
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Section 5. Quorum 10
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Section 6. Adjourned Meeting and Notice Thereof 10
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Section 7. Waiver or Consent by Absent Shareholders 11
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Section 8. Maintenance and Inspection of Bylaws 11
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Section 9. Annual Report to Shareholders 12
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Section 10. Financial Statements 12
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Section 11. Annual Statement of General Information 13
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ARTICLE IX 13
AMENDMENTS TO BYLAWS 13
Section 1. Amendment by Shareholders 13
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Section 2. Amendment by Directors 13
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Section 3. Record of Amendments 13
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ARTICLE X 13
MISCELLANEOUS 13
Section 1. Shareholders' Agreements 13
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Section 2. Effect of Shareholders' Agreements 13
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Section 3. Subsidiary Corporations 14
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Section 4. Accounting Year 14
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Section 5. Form 14
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SECOND RESTATED
BYLAWS
OF
TMI HOLDINGS, INC.
a Florida Corporation
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office for the transaction
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of business of the Corporation shall be determined by the Board of Directors.
The location may be changed by the Board of Directors in their discretion, and
additional offices may be established and maintained at such other place or
places, either within or outside of Florida, as the Board of Directors may from
time to time designate.
Section 2. Other Offices. Branch or subordinate offices may at any
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time be established by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE II
DIRECTORS - MANAGEMENT
Section 1. Powers, Standard of Care.
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A. Powers: Subject to the provisions of the Florida Corporation
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Act (hereinafter the "Act"), and subject to any limitations in the Articles of
Incorporation of the Corporation relating to action required to be approved by
the Shareholders, or by the outstanding shares, the business and affairs of the
Corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the Board of Directors. The Board of Directors may
delegate the management of the day-to-day operation of the business of the
Corporation to a management company or other persons, provided that the business
and affairs of the Corporation shall be managed, and all corporate powers shall
be exercised, under the ultimate direction of the Board.
B. Standard of Care; Liability:
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(i) Each Director shall exercise such powers and otherwise
perform such duties, in good faith, in the matters such Director believes to be
in the best interests of the Corporation, and with such care, including
reasonable inquiry, using ordinary prudence, as a person in a like position
would use under similar circumstances.
(ii) In performing the duties of a Director, a Director
shall be entitled to rely on information, opinions, reports, or statements,
including financial statements and other financial data, in which case prepared
or presented by:
(a) One or more officers or employees of the
Corporation whom the Director believes to be reliable and competent in the
matters presented,
(b) Counsel, independent accountants or other persons
as to which the Director believes to be within such person's professional or
expert competence, or
(c) A Committee of the Board upon which the Director
does not serve, as to matters within its designated authority, which committee
the Director believes to merit confidence, so long as in any such case the
Director acts in good faith, after reasonable inquiry when the need therefore is
indicated by the circumstances and without knowledge that would cause such
reliance to be unwarranted.
C. Exception for Close Corporation. Notwithstanding the
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provisions of Section 1 of this Article, in the event that the Corporation shall
elect to become a close corporation, its Shareholders may enter into a
Shareholders' Agreement. Said Agreement may provide for the exercise of
corporate powers and the management of the business and affairs of the
Corporation by the Shareholders; provided, however, such agreement shall, to the
extent and so long as the discretion or powers of the Board of Directors in its
management of corporate affairs is controlled by such agreement, impose upon
each Shareholder who is a party hereof, liability for managerial acts performed
or omitted by such person pursuant thereto otherwise imposed upon Directors; and
the Directors shall be relieved to that extent from such liability.
Section 2. Number and Qualification of Directors. The authorized
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number of Directors of the Corporation shall be at least one (1) but not more
than ten (10) until changed by a duly adopted amendment to the Articles of
Incorporation or by an amendment to this Section 2 of Article II of these
Bylaws, adopted by the vote or written consent of Shareholders entitled to
exercise majority voting power as provided in the Act.
Section 3. Election and Term of Office of Directors. Directors shall
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be elected at each annual meeting of the Shareholders to hold office until the
next annual meeting. Each Director, including a Director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
Section 4. Vacancies.
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A. Vacancies on the Board of Directors may be filled by a
majority of the re-maining Directors, though less than a quorum, or by a sole
remaining Director, except that a vacancy created by the removal of a Director
by the vote or written consent of the Shareholders, or by a court order, may be
filled only by the vote of a majority of the shares entitled to vote,
represented at a duly held meeting at which a quorum is present, or by the
written consent of holders of the majority of the outstanding shares entitled to
vote. Each Director so elected shall hold office until the next annual meeting
of the Shareholders and until a successor has been elected and qualified.
B. A vacancy or vacancies on the Board of Directors shall be
deemed to exist in the event of the death, resignation or removal of any
Director, or if the Board of Directors by resolution declares vacant the office
of a Director who has been declared of unsound mind by an order of court or
convicted of a felony, or if there shall be at any less than the full number of
Directors as set forth Article II, Section 2 of these Bylaws.
C. The Shareholders may elect a Director or Directors at any time
to fill any vacancy or vacancies not filled by the Directors, but any such
election by written consent shall require the consent of a majority of the
outstanding shares entitled to vote.
D. Any Director may resign, effective on giving written notice to
the Chairman of the Board, the President, the Secretary, or the Board of
Directors, unless the notice specifies a later time for that resignation to
become effective. If the resignation of a Director is effective at a future
time, the Board of Directors may, prior to the effective date of a Director's
resignation, elect a successor to take office when the resignation becomes
effective.
E. No reduction of the authorized number of Directors shall have
the effect of removing any Director before that Director's term of office
expires.
Section 5. Removal of Directors.
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A. The entire Board of Directors, or any individual Director, may
be removed from office as provided by the Act. In such case, the remaining
members, if any, of the Board of Directors may elect a successor Director to
fill such vacancy for the remaining unexpired term of the Director so removed.
B. No Director may be removed (unless the entire Board is
removed) when the votes cast against removal or not consenting in writing to
such removal would be sufficient to elect such Director if voted cumulatively at
an election at which the same total number of votes were cast (or, if such
action is taken by written consent, all shares entitled to vote, were voted) and
the entire num-ber of Directors authorized at the time of the Directors' most
recent election were then being elected; and when by the provisions of the
Articles of Incorporation the holders of the shares of any class or series
voting as a class or series are entitled to elect one or more Directors, any
Director so elected may be removed only by the applicable vote of the holders of
the shares of that class or series.
Section 6. Place of Meetings. Regular meetings of the Board of
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Directors shall be held at any place within or outside the state that has been
designated from time to time by resolution of the Board. In the absence of such
resolution, regular meetings shall be held at the principal executive office of
the Corporation. Special meetings of the Board shall be held at any place
within or outside the state that has been designated in the notice of the
meeting, or, if not stated in the notice or there is no notice, at the principal
executive office of the Corporation. Any meeting, regular or special, may be
held by conference telephone or similar communication equipment, so long as all
Directors participating in such meeting can hear one another, and all such
Directors shall be deemed to have been present in person at such meeting.
Section 7. Annual Meetings. Immediately following each annual meeting
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of Shareholders, the Board of Directors shall hold a regular meeting for the
purpose of organization, the election of officers and the transaction of other
business. Notice of this meeting shall not be required. Minutes of any meeting
of the Board, or any committee thereof, shall be maintained as required by the
Act by the Secretary or other officer designated for that purpose.
Section 8. Other Regular Meetings.
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A. Other regular meetings of the Board of Directors shall be held
without call at such time as shall from time to time be fixed by the Board of
Directors. Such regular meetings may be held without notice, provided the time
and place of such meetings has been fixed by the Board of Directors, and further
provided the notice of any change in the time of such meeting shall be given to
all the Directors. Notice of a change in the determination of the time shall be
given to each Director in the same manner as notice for such special meetings of
the Board of Directors.
B. If said day falls upon a holiday, such meetings shall be held
on the next succeeding day thereafter.
Section 9. Special Meetings/Notices.
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A. Special meetings of the Board of Directors for any purpose or
purposes may be called at any time by the Chairman of the Board, the President,
any Vice President, the Secretary or any two Directors.
B. Notice of the time and place for special meetings shall be
delivered personally or by telephone to each Director or sent by first class
mail or telegram, charges prepaid, addressed to each Director at his or her
address as it is shown in the records of the Corporation. In case such notice is
mailed, it shall be deposited in the United States mail at least four days prior
to the time of holding the meeting. In case such notice is delivered personally,
or by telephone or telegram, it shall be delivered personally or be telephone or
to the telegram company at least 48 hours prior to the time of the holding of
the meeting. Any oral notice given personally or by telephone may be
communicated to either the Director or to a person at the office of the Director
who the person giving the notice has reason to believe will promptly communicate
same to the Director. The notice need not specify the purpose of the meeting,
nor the place, if the meeting is to be held at the principal executive office of
the Corporation.
Section 10. Waiver of Notice.
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A. The transactions of any meeting of the Board of Directors,
however called, noticed, or wherever held, shall be as valid as though had at a
meeting duly held after the regular call and notice if a quorum be present and
if, either before or after the meeting, each of the Directors not present signs
a written waiver of notice, a consent to holding the meeting or an approval of
the minutes thereof. Waivers of notice or consent need not specify the purposes
of the meeting. All such waivers, consents and approvals shall be filed with the
corporate records or made part of the minutes of the meeting.
B. Notice of a meeting shall also be deemed given to any Director
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
Section 11. Quorums. A majority of the authorized number of Directors
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shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 12 of this Article II. Every act or decision done or made
by a majority of the Directors present at a meeting duly held at which a quorum
was present shall be regarded as the act of the Board of Directors, subject to
the provisions of the Act. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of Directors, if
any action taken is approved by at least a majority of the required quorum for
that meeting.
Section 12. Adjournment. A majority of the directors present, whether
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or not constituting a quorum, may adjourn any meeting to another time and
place.
Section 13. Notice of Adjournment. Notice of the time and place of the
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holding of an adjourned meeting need not be given, unless the meeting is
adjourned for more than 24 hours, in which case notice of such time and place
shall be given prior to the time of the adjourned meeting to the Directors who
were not present at the time of the adjournment.
Section 14. Board of Directors Provided by Articles or Bylaws. In the
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event only one Director is required by the Bylaws or the Articles of
Incorporation, then any reference herein to notices, waivers, consents, meetings
or other actions by a majority or quorum of the Board of Directors shall be
deemed or referred as such notice, waiver, etc., by the sole Director, who shall
have all rights and duties and shall be entitled to exercise all of the powers
and shall assume all the responsibilities otherwise herein described, as given
to the Board of Directors.
Section 15. Directors Action by Unanimous Written Consent. Any action
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required or permitted to be taken by the Board of Directors may be taken without
a meeting and with the same force and effect as if taken by a unanimous vote of
Directors, if authorized by a writing signed individually or collectively by all
members of the Board of Directors. Such consent shall be filed with the regular
minutes of the Board of Directors.
Section 16. Compensation of Directors. Directors, and members as such,
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shall not receive any stated salary for their services, but by resolution of the
Board of Directors, a fixed sum and expense of attendance, if any, may be
allowed for attendance at each regular and special meeting of the Board of
Directors; provided, however, that nothing contained herein shall be construed
to preclude any Director from serving the Corporation in any other capacity as
an officer, employee or otherwise receiving compensation for such services.
Section 17. Committees. Committees of the Board of Directors may be
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appointed by resolution passed by a majority of the whole Board. Committees
shall be composed of two or more members of the Board of Directors. The Board
may designate one or more Directors as alternate members of any committee, who
may replace any absent member at any meeting of the committee. Committees shall
have such powers as those held by the Board of Directors as may be expressly
delegated to it by resolution of the Board of Directors, except those powers
expressly made non-delegable by the Act.
Section 18. Meetings and Action of Committees. Meetings and action of
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committees shall be governed by, and held and taken in accordance with, the
provisions of Article II, Sections 6, 8, 9, 10, 11, 12, 13 and 15, with such
changes in the context of those Sections as are necessary to substitute the
committee and its members for the Board of Directors and its members, except
that the time of the regular meetings of the committees may be determined by
resolution of the Board of Directors as well as the committee, and special
meetings of committees may also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The Board of Directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
Section 19. Advisory Directors. The Board of Directors from time to
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time may elect one or more persons to be Advisory Directors, who shall not by
such appointment be members of the Board of Directors. Advisory Directors shall
be available from time to time to perform special assignments specified by the
President, to attend meetings of the Board of Directors upon invitation and to
furnish consultation to the Board of Directors. The period during which the
title shall be held may be prescribed by the Board of Directors. If no period
is prescribed, the title shall be held at the pleasure of the Board of
Directors.
ARTICLE III
OFFICERS
Section 1. Officers. The principal officers of the Corporation shall
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be a President, a Secretary, and a Chief Financial Officer who may also be
called Treasurer. The Corporation may also have, at the discretion of the Board
of Directors, a Chairman of the Board, one or more Assistant Secretaries, one or
more Assistant Treasurers, and such other officers as may be appointed in
accordance with the provisions of Section 3 of this Article III. Any number of
offices may be held by the same person.
Section 2. Election of Officers. The principal officers of the
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Corporation, except such officers as may be appointed in accordance with the
provisions of Section 3 or Section 5 of this Article III, shall be chosen by the
Board of Directors, and each shall serve at the pleasure of the Board of
Directors, subject to the rights, if any, of an officer under any contract of
employment.
Section 3. Subordinate Officers, Etc. The Board of Directors may appoint
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such other officers as the business of the Corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the Bylaws or as the Board of Directors may from time to time
determine.
Section 4. Removal and Resignation of Officers.
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A. Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either with or without
cause, by a majority of the Directors at that time in office, at any regular or
special meeting of the Board of Directors, or, except in the case of an officer
chosen by the Board of Directors, by any officer upon whom such power of removal
may be conferred by the Board of Directors.
B. Any officer may resign at any time by giving written notice to
the Board of Directors. Any resignation shall take effect on the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to which
the officer is a party.
Section 5. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular appointments to that office.
Section 6. Chairman of the Board. The Chairman of the Board, if such
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an officer be elected, shall, if present, preside at the meetings of the Board
of Directors and exercise and perform such other powers and duties as may, from
time to time, be assigned by the Board of Directors or prescribed by the Bylaws.
If there is no President, the Chairman of the Board shall, in addition, be the
Chief Executive Officer of the Corporation and shall have the powers and duties
prescribed in Section 7 of this Article III.
Section 7. President and Chief Executive Officer. Subject to such
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supervisory powers, if any, as may be given by the Board of Directors to the
Chairman of the Board, if there is such an officer, the President along with the
Chief Executive Officer of the Corporation shall, subject to the control of the
Board of Directors, have general supervision, discretion and control of the
business and officers of the Corporation. The President or the Chief Executive
Officer shall preside at all meetings of the Shareholders and, in the absence of
the Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. The President and Chief Executive Officer, jointly, shall have the
general powers and duties of management usually vested in the office of
President and Chief Executive Officer of a corporation, each shall be ex officio
a member of all the standing committees, including the Executive Committee, if
any, and shall have such other powers and duties as may be prescribed by the
Board of Directors or the Bylaws.
Section 8. Secretary.
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A. The Secretary shall keep, or cause to be kept, a book of
minutes of all meetings of the Board of Directors and Shareholders at the
principal office of the Corporation or such other place as the Board of
Directors may order. The minutes shall include the time and place of holding the
meeting, whether regular or special, and if a special meeting, how authorized,
the notice thereof given, and the names of those present at Directors' and
committee meetings, the number of shares present or represented at Shareholders'
meetings and the proceedings thereof.
B. The Secretary shall keep, or cause to be kept, at the
principal office of the Corporation or at the office of the Corporation's
transfer agent, a share register, or duplicate share register, showing the names
of the Shareholders and their addresses; the number and classes or shares held
by each; the number and date of certificates issued for the same; and the number
and date of cancellation of every certificate surrendered for cancellation.
C. The Secretary shall give, or cause to be given, notice of all
the meetings of the Shareholders and of the Board of Directors required by the
Bylaws or by law to be given. The Secretary shall keep the seal of the
Corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 9. Chief Financial Officer or Treasurer.
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A. The Chief Financial Officer shall keep and maintain, or cause
to be kept and maintained, in accordance with generally accepted accounting
principles, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, earnings (or surplus) and
shares issued. The books of account shall, at all reasonable times, be open to
inspection by any Director.
B. The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. The Chief Financial
Officer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, shall render to the President and Directors, whenever they
request it, an account of all of the transactions of the Chief Financial Officer
and of the financial condition of the Corporation, and shall have such other
powers and perform such other duties as may be prescribed by the Board of
Directors or the Bylaws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
Section 1. Place of Meetings. Meetings of the Shareholders shall be
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held at any place within or outside the state of Florida designated by the Board
of Directors. In the absence of any such designation, Shareholders' meetings
shall be held at the principal executive office of the Corporation.
Section 2. Annual Meeting.
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A. The annual meeting of the Shareholders shall be held, each
year, as follows:
Time of Meeting: 10:00 A.M.
Date of Meeting: First Tuesday in May
B. If this day shall be a legal holiday, then the meeting shall
be held on the next succeeding business day, at the same time. At the annual
meeting, the Shareholders shall elect a Board of Directors, consider reports of
the affairs of the Corporation and transact such other business as may be
properly brought before the meeting.
C. If the above date is inconvenient, the annual meeting of
Shareholders shall be held each year on a date and at a time designated by the
Board of Directors within ninety days of the above date upon proper notice to
all Shareholders.
Section 3. Special Meetings.
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A. Special meetings of the Shareholders for any purpose or
purposes whatsoever, may be called at any time by the Board of Directors, the
Chairman of the Board, the President, or by one or more Shareholders holding
shares in the aggregate entitled to cast not less than 10% of the votes at any
such meeting. Except as provided in paragraph B below of this Section 3, notice
shall be given as for the annual meeting.
B. If a special meeting is called by any person or persons other
than the Board of Directors, the request shall be in writing, specifying the
time of such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the Chairman of the Board, the
President, or the Secretary of the Corporation. The officer receiving such
request shall forthwith cause notice to be given to the Shareholders entitled to
vote, in accordance with the provisions of Sections 4 and 5 of this Article,
indicating that a meeting will be held at the time requested by the person or
persons calling the meeting, not less than 35 nor more than 60 days after the
receipt of the request. If the notice is not given within 20 days after receipt
of the request, the person or persons requesting the meeting may give the notice
in the manner provided in these Bylaws. Nothing contained in this paragraph of
this Section shall be construed as limiting, fixing or affecting the time when a
meeting of Shareholders called by action of the Board of Directors may be held.
Section 4. Notice of Meetings - Reports.
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A. Notice of any Shareholders meetings, annual or special, shall
be given in writing not less than 10 days nor more than 60 days before the date
of the meeting to Shareholders entitled to vote thereat by the Secretary or the
Assistant Secretary, or if there be no such officer, or in the case of said
Secretary or Assistant Secretary's neglect or refusal, by any Director or
Shareholder.
B. Such notices or any reports shall be given personally or by
mail or other means of written communication as provided in the Act and shall be
sent to the Shareholder's address appearing on the books of the Corporation, or
supplied by the Shareholder to the Corporation for the purpose of notice, and in
the absence thereof, as provided in the Act by posting notice at a place where
the principal executive office of the Corporation is located or by publication
at least once in a newspaper of general circulation in the county in which the
principal executive office is located.
C. Notice of any meeting of Shareholders shall specify the place,
the day and the hour of meeting, and (i) in case of a special meeting, the
general nature of the business to be transacted and that no other business may
be transacted, or (ii) in the case of an annual meeting, those matters which the
Board of Directors, at the date of mailing of notice, intends to present for
action by the Shareholders. At any meetings where Directors are elected, notice
shall include the names of the nominees, if any, intended at the date of notice
to be presented for election.
D. Notice shall be deemed given at the time it is delivered
personally or deposited in the mail or sent by other means of written
communication. The officer giving such notice or report shall prepare and file
in the minute book of the Corporation an affidavit or declaration thereof.
E. If action is proposed to be taken at any meeting for approval
of (i) contracts or transactions in which a Director has a direct or indirect
financial interest, (ii) an amendment to the Articles of Incorporation, (iii) a
reorganization of the Corporation, (iv) dissolution of the Corporation, or (v) a
distribution to preferred Shareholders, the notice shall also state the general
nature of such proposal.
Section 5. Quorum.
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A. The holders of a majority of the shares entitled to vote at a
Shareholders' meeting, present in person, or represented by proxy, shall
constitute a quorum at all meetings of the Shareholders for the transaction of
business except as otherwise provided by the Act or by these Bylaws.
B. The Shareholders present at a duly called or held meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by a majority
of the shares required to constitute a quorum.
Section 6. Adjourned Meeting and Notice Thereof
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A. Any Shareholders' meeting, annual or special, whether or not a
quorum is present, may be adjourned from time to time by the vote of the
majority of the shares represented at such meeting, either in person or by
proxy, but in the absence of a quorum, no other business may be transacted at
such meeting.
B. When any meeting of Shareholders, either annual or special, 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 a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than 45 days from the date set for
the original meeting, in which case the Board of Directors shall set a new
record date. Notice of any adjourned meeting shall be given to each Shareholder
of record entitled to vote at the adjourned meeting in accordance with the
provisions of Section 4 of this Article. At any adjourned meeting, the
Corporation may transact any business that might have been transacted at the
original meeting.
Section 7. Waiver or Consent by Absent Shareholders.
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A. The transactions of any meeting of Shareholders, either annual
or special, however called and noticed, shall be valid as though had at a
meeting duly held after regular call and notice, if a quorum be present either
in person or by proxy, and if, either before or after the meeting, each of the
Shareholders entitled to vote, not present in person or by proxy, sign a written
waiver of notice, or a consent to the holding of such meeting or an approval of
the minutes thereof.
B. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any regular or special meeting of
Shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in Section E of Section 4 of this
Article, the waiver of notice or consent shall state the general nature of such
proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
C. Attendance of a person at a meeting shall also constitute a
waiver of notice of such meeting, except when the person objects, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of matters not included
in the notice. A Shareholder or Shareholders of the Corporation holding at least
5% in the aggregate of the outstanding voting shares of the Corporation may (i)
inspect, and copy the records of Shareholders' names and addresses and
shareholdings during usual business hours upon five days prior written demand
upon the Corporation, and/or (ii) obtain from the transfer agent by paying such
transfer agent's usual charges for such a list, a list of the Shareholders'
names and addresses who are entitled to vote for the election of Directors, and
their shareholdings, as of the most recent record date for which such list has
been compiled or as of a date specified by the Shareholders subsequent to the
day of demand. Such list shall be made available by the transfer agent on or
before the later of five days after the demand is received or the date specified
therein as the date as of which the list is to be compiled. The record of
Shareholders shall also be open to inspection upon the written demand of any
Shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to such holder's interest as a
Shareholder or as a holder of a voting trust certificate. Any inspection and
copying under this Section may be made in person or by an agent or attorney of
such Shareholder or holder of a voting trust certificate making such demand.
Section 8. Maintenance and Inspection of Bylaws. The Corporation shall
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keep at its principal executive office, or if not in this state, at its
principal business office in this state, the original or a copy of the Bylaws
amended to date, which shall be open to inspection by the Shareholders at all
reasonable times during office hours. If the principal executive office of the
Corporation is outside the state and the Corporation has no principal business
office in this state, the Secretary shall, upon written request of any
Shareholder, furnish to such Shareholder a copy of the Bylaws as amended to
date.
Section 9. Annual Report to Shareholders.
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A. Provided the Corporation has 100 Shareholders or less, the
Annual Report to Shareholders referred to in the Act is expressly dispensed
with, but nothing herein shall be interpreted as prohibiting the Board of
Directors from issuing annual or other period reports to Shareholders of the
Corporation as they deem appropriate.
B. Should the Corporation have 100 or more Shareholders, an
Annual Report to Shareholders must be furnished not later than 120 days after
the end of each fiscal period. The Annual Report to Shareholders shall be sent
at least 15 days before the annual meeting of the Shareholders to be held during
the next fiscal year and in the manner specified in Section 4 of Article V of
these Bylaws for giving notice to Shareholders of the Corporation. The Annual
Report to Shareholders shall contain a Balance Sheet as of the end of the fiscal
year and an Income Statement and Statement of Changes in Financial Position for
the fiscal year, accompanied by any report of independent accountants or, if
there is no such report, the certificate of an authorized officer of the
Corporation that the statements were prepared without audit from the books and
records of the Corporation.
Section 10. Financial Statements.
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A. A copy of any annual financial statement and any Income
Statement of the Corporation for each quarterly period of each fiscal year, and
any accompanying Balance Sheet of the Corporation as of the end of each such
period, that has been prepared by the Corporation shall be kept on file at the
principal executive office of the Corporation for 12 months from the date of its
execution, and each such statement shall be exhibited at all reasonable times to
any Shareholder demanding an examination of such statement or a copy shall be
made for any such Shareholder.
B. If a Shareholder or Shareholders holding at least 5% of the
outstanding shares of any class of stock of the Corporation make a written
request to the Corporation for an Income Statement of the Corporation for the
three month, six month or nine month period of the then current fiscal year
ended more than 30 days prior to the date of the request, and a Balance Sheet of
the Corporation at the end of such period, the Chief Financial Officer shall
cause such statement to be prepared, if not already prepared, and shall deliver
personally or mail such statement or statements to the person making the request
within 30 days after the receipt of such request. If the Corporation has not
sent to the Shareholders its Annual Report for the last fiscal year, this report
shall likewise be delivered or mailed to such Shareholder or Shareholders within
30 days after such request.
C. The Corporation also shall, upon the written request of any
Shareholder, mail to the Shareholder a copy of the last annual, semi-annual or
quarterly Income Statement which it has prepared and a Balance Sheet as of the
end of such period. This quarterly Income Statement and Balance Sheet referred
to in this Section shall be accompanied by the report thereon, if any, of any
independent accountants engaged by the Corporation or the certificate of
authorized officer of the Corporation such that financial statements were
prepared without audit from the books and records of the Corporation.
Section 11. Annual Statement of General Information. The Corporation
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shall, in a timely manner, in each year, file with the Secretary of State of
Florida, on the prescribed form, the statement setting forth the authorized
number of Directors, the names and complete business or residence addresses of
all incumbent Directors, the names and complete business or residence addresses
of the Chief Executive Officer, Secretary and Chief Financial Officer, the
street address of its principal executive office or principal business office in
this state and the general type of business constituting the principal business
activity of the Corporation, together with a designation of the agent of the
Corporation for the purpose of the service of process, all in compliance with
the Act.
ARTICLE V
AMENDMENTS TO BYLAWS
Section 1. Amendment by Shareholders. New Bylaws may be adopted or
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these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the Articles of Incorporation of the Corporation set forth the
number of authorized Directors of the Corporation, the authorized number of
Directors may be changed only by amendment to the Articles of Incorporation.
Section 2. Amendment by Directors. Subject to the rights of the
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Shareholders to adopt, amend or repeal the Bylaws, as provided in Section 1 of
this Article V, and the limitations of the Act, the Board of Directors may
adopt, amend or repeal any of these Bylaws other than an amendment to the Bylaws
changing the authorized number of Directors.
Section 3. Record of Amendments. Whenever an amendment or new Bylaw is
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adopted, it shall be copied in the corporate book of Bylaws with the original
Bylaws, in the appropriate place. If any Bylaw is repealed, the fact of repeal
with the date of the meeting at which the repeal was enacted or written assent
was filed shall be stated in the corporate book of Bylaws.
ARTICLE VI
MISCELLANEOUS
Section 1. Shareholders' Agreements. Notwithstanding anything
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contained in this Article VI to the contrary, in the event the Corporation
elects to become a close corporation, an agreement between two or more
Shareholders thereof, if in writing and signed by the parties thereto, may
provide that in exercising any voting rights, the shares held by them shall be
voted as provided therein or in the Act, and may otherwise modify the provisions
contained in Article IV, herein as to Shareholders' meetings and actions.
Section 2. Effect of Shareholders' Agreements. Any Shareholders'
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Agreement authorized by the Act, shall only be effective to modify the terms of
these Bylaws if the Corporation elects to become a close corporation with the
appropriate filing of an amendment to its Articles of Incorporation as required
by the Act and shall terminate when the Corporation ceases to be a close
corporation. Any other provisions of the Act or these Bylaws may be altered or
waived thereby, but to the extent they are not so altered or waived, these
Bylaws shall be applicable.
Section 3. Subsidiary Corporations. Shares of the Corporation owned by
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a subsidiary shall not be entitled to vote on any matter.
Section 4. Accounting Year. The accounting year of the Corporation
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shall be fixed by resolution of the Board of Directors, but shall end on
December 31st of each year if not otherwise fixed by the Board.
Section 5. Form. The corporate seal shall be circular in form, and
----
shall have inscribed thereon the name of the Corporation, the date of its
incorporation, and the word "Florida" to indicate the Corporation was
incorporated pursuant to the laws of the State of Florida.
CERTIFICATE OF SECRETARY
I, the undersigned, certify that:
1. I am the duly elected and acting secretary of TMI Holdings, Inc., a
Florida corporation; and
2. The foregoing Seconded Amended and Restated Bylaws of TMI Holdings,
Inc., consisting of 14 pages, are the Bylaws of this Corporation as adopted by
the Board of Directors in accordance with the Florida Corporation Act and that
such Bylaws have not been amended and are in full force and effect.
IN WITNESS WHEREOF, I have subscribed my name and affixed the
seal of this Corporation on June 17, 2003.
____________________________________
Scott Siegel, Secretary