Exhibit 3(ii)
AMENDED AND RESTATED BYLAWS
OF
FRP HOLDINGS, INC.
(A FLORIDA CORPORATION)
As amended and restated on February 3, 2016
TABLE OF CONTENTS
Page
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ARTICLE ONE OFFICES 1
Section 1. Registered Office 1
Section 2. Other Offices 1
ARTICLE TWO MEETINGS OF SHAREHOLDERS 1
Section 1. Place 1
Section 2. Time of Annual Meeting 1
Section 3. Call of Special Meetings 1
Section 4. Conduct of Meetings 1
Section 5. Notice and Waiver of Notice 2
Section 6. Business of Special Meeting 2
Section 7. Quorum 2
Section 8. Voting Per Share 2
Section 9. Voting of Shares 2
Section 10. Proxies 3
Section 11. Shareholder List 3
Section 12. Fixing Record Date 3
Section 13. Inspectors and Judges 4
Section 14. Advance Notice 4
ARTICLE THREE DIRECTORS 4
Section 1. Number of Directors 4
Section 2. Qualifications 4
Section 3. Vacancies 4
Section 4. Removal 4
Section 5. Resignation of Directors 4
Section 6. Powers 5
Section 7. Place of Meetings 5
Section 8. Annual Meeting 5
Section 9. Regular Meetings 5
Section 10. Special Meetings 5
Section 11. Notice 5
Section 12. Waiver of Notice 5
Section 13. Quorum; Required Vote; Presumption of Assent 5
Section 14. Action Without Meeting 5
Section 15. Participation in Meetings By Conference
Telephone or Similar Communications Equipment 5
Section 16. Presumption of Assent 6
Section 17. Committees 6
Section 18. Corporate Governance Guidelines 7
Section 19. Compensation of Directors 7
Section 20. Chairman of the Board 7
ARTICLE FOUR OFFICERS 7
Section 1. Positions 7
Section 2. Election of Specified Officers by Board 7
Section 3. Election or Appointment of Other Officers 8
Section 4. Salaries 8
Section 5. Term, Resignation 8
Section 6. Chief Executive Officer 8
Section 7. President 8
Section 8. Vice Presidents 8
Section 9. Chief Financial Officer 8
Section 10. Secretary 8
Section 11. Treasurer 9
Section 12. Assistant Secretaries and Assistant Treasurers 9
Section 13. Other Officers, Employees and Agents 9
ARTICLE FIVE CERTIFICATES FOR SHARES 9
Section 1. Issue of Stock With or Without Certificates 9
Section 2. Legends for Preferences and Restrictions on Transfer 9
Section 3. Facsimile Signatures 10
Section 4. Lost Certificates 10
Section 5. Transfer of Shares 10
Section 6. Registered Shareholders 10
ARTICLE SIX GENERAL PROVISIONS 10
Section 1. Dividends 10
Section 2. Reserves 10
Section 3. Checks 10
Section 4. Fiscal Year 11
Section 5. Seal 11
Section 6. Gender 11
Section 7. Construction 11
Section 8. Conflict With Applicable Law or Articles of Incorporation 11
Section 9. Exclusive Forum
ARTICLE SEVEN AMENDMENT OF BYLAWS 11
ARTICLE EIGHT INDEMNIFICATION 11
Section 1. Indemnification of Directors and Officers in
Third Party Proceedings 11
Section 2. Indemnification of Directors and Officers in
Actions By or in the Right of the Corporation 12
Section 3. Successful Defense 12
Section 4. Indemnification of Others 12
Section 5. Advanced Payment of Expenses 12
Section 6. Limitations on Indemnification 13
Section 7. Indemnification Claims; Determination 13
Section 8. Procedures For Determination Of Whether
Standards Have Been Satisfied 14
Section 9. Contract Rights 15
Section 10. Non-Exclusivity Of Rights 15
Section 11. Insurance and Funding 15
Section 12. Reliance 15
Section 13. No Imputation 16
Section 14. Survival 16
Section 15. Notices 16
Section 16. Savings Clause 16
ARTICLE NINE CERTAIN DEFINITIONS 16
ii
FRP HOLDINGS, INC.
THIRD AMENDED AND RESTATED BYLAWS
ARTICLE ONE
OFFICES
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Section 1. Registered Office. The registered office of FRP Holdings, Inc.,
a Florida corporation (the "Corporation"), shall be located in the City of
Jacksonville, State of Florida, unless otherwise designated by the Board of
Directors of the Corporation (the "Board of Directors").
Section 2. Other Offices. The Corporation may also have 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 as the business of the Corporation
may require.
ARTICLE TWO
MEETINGS OF SHAREHOLDERS
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Section 1. Place. All annual meetings of shareholders shall be held at
such place, within or without the State of Florida, as may be designated by
the Board of Directors and stated in the notice of the meeting or in a duly
executed waiver of notice thereof. Special meetings of shareholders may be held
at such place, within or without the State of Florida, and at such time as
shall be stated in the notice of the meeting or in a duly executed waiver of
notice thereof.
Section 2. Time of Annual Meeting. Annual meetings of shareholders shall
be held on such date and at such time fixed, from time to time, by the Board of
Directors at which the shareholders shall elect a Board of Directors and
transact such other business as may properly be brought before the meeting.
Section 3. Call of Special Meetings. In accordance with Article X of the
Articles of Incorporation, special meetings of shareholders shall be held if
(i) called by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors; (ii) called by the President of the
Corporation or the Corporation's Chief Executive Officer, or (iii) if the
holders of not less than fifty (50) percent of all the votes entitled to be
cast on any issue proposed or to be considered at the proposed special meeting
sign, date, and deliver to the Secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be held. The
notice of a special meeting shall state the purpose or purposes of the special
meeting.
Section 4. Conduct of Meetings.
(a) Officers of the Meeting. The Chairman of the Board, or in the
absence of the Chairman, the Chief Executive Officer, or in his absence, the
President, or in his absence, the Vice Chairman, or if no such officer is
present, a director designated by the Board of Directors, shall call all
meetings of the shareholders to order and shall act as chairman of the meeting.
The Secretary, or in the absence of the Secretary, an Assistant Secretary,
shall act as secretary of the meeting of the shareholders, but in the absence
of the Secretary and Assistant Secretary at a meeting of the shareholders the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
(b) Order of Business. The chairman of the meeting shall have the
right to determine the order of business at the meeting.
(c) Meeting Protocol. To the maximum extent permitted by applicable
law, the Board of Directors shall be entitled to make such rules or regulations
for the conduct of meetings of shareholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations of the Board
of Directors, if any, the chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and take such
action as, in the discretion of such chairman, are deemed necessary,
appropriate or convenient for the proper conduct of the meeting. Such rules,
regulations and procedures, whether adopted by the Board or prescribed by the
chairman of the meeting, may include, without limitation, the following:
(i) establishing an agenda for the meeting and the order for the consideration
of the items of business on such agenda; (ii) restricting admission to the time
set for the commencement of the meeting; (iii) limiting attendance at the
meeting to shareholders of record of the Corporation
entitled to vote at the meeting, their duly authorized proxies or other such
persons as the chairman of the meeting may determine; (iv) limiting
participation at the meeting on any matter to shareholders of record of the
Corporation entitled to vote on such matter, their duly authorized proxies or
other such persons as the chairman of the meeting may determine to recognize
and, as a condition to recognizing any such participant, requiring such
participant to provide the chairman of the meeting with evidence of his name
and affiliation, whether he is a shareholder or a proxy for a shareholder, and
the class and series and number of shares of each class and series of capital
stock of the Corporation which are owned beneficially and/or of record by such
shareholder; (v) limiting the time allotted to questions or comments by
participants; (vi) taking such actions as are necessary or appropriate to
maintain order, decorum, safety and security at the meeting; (vii) removing any
shareholder who refuses to comply with meeting procedures, rules or guidelines
as established by the chairman of the meeting; (viii) complying with any state
and local laws and regulations concerning safety and security; and (ix)
establishing the date and time for the opening and closing of the polls in
respect of each matter as to which shareholders are entitled to cast a vote at
the meeting. Unless otherwise determined by the chairman of the meeting,
meetings of shareholders shall not be required to be held in accordance with
the rules of parliamentary procedure.
Section 5. Notice and Waiver of Notice. Without limiting the manner
by which notice may otherwise be given effectively to shareholders, notice of
meetings may be given to shareholders in writing. Except as otherwise provided
by law, such notice stating the place, day and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than ten (10) nor more than sixty (60) days
before the day of the meeting by or at the direction of the President, the
Secretary, or the officer or person calling the meeting, to each shareholder of
record entitled to vote at such meeting. If a meeting is adjourned to another
time and/or place, and if an announcement of the adjourned time and/or place is
made at the meeting, it shall not be necessary to give notice of the adjourned
meeting unless the Board of Directors, after adjournment, fixes a new record
date for the adjourned meeting. Whenever any notice is required to be given to
any shareholder, a waiver thereof in writing signed by the person or persons
entitled to such notice, whether signed before, during or after the time of the
meeting stated therein, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records, shall be equivalent to the giving
of such notice. 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. Attendance of a person at a meeting shall constitute
a waiver of (a) defective notice of such meeting, unless the person objects at
the beginning to the holding of the meeting or the transacting of any business
at the meeting, or (b) defective notice of a particular matter at a meeting
that is not within the purpose or purposes described in the meeting notice,
unless the person objects to considering such matter when it is presented.
Section 6. Business of Special Meeting. Business transacted at any
special meeting shall be confined to the purposes stated in the notice thereof.
Section 7. Quorum. Shares entitled to vote as a separate voting group
may take action on a matter at a meeting only if a quorum of these shares
exists with respect to that matter. Except as otherwise provided in the
Articles of Incorporation or the Florida Business Corporation Act, as amended
(the "FBCA"), a majority of the shares entitled to vote on the matter by each
voting group, represented in person or by proxy, shall constitute a quorum at
any meeting of shareholders. If less than a majority of outstanding shares
entitled to vote are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice.
After a quorum has been established at any 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. 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.
Section 8. Voting Per Share. Except as otherwise provided in the
Articles of Incorporation or the FBCA, each outstanding share, regardless of
class, is entitled to one (1) vote on each matter submitted to a vote at a
meeting of shareholders. Only shares are entitled to vote.
Section 9. Voting of Shares. A shareholder may vote at any meeting
of shareholders of the Corporation, either in person or by proxy. Shares
standing in the name of another corporation, domestic or foreign, may be
voted by the officer, agent or proxy designated by the bylaws of such
corporate shareholder or, in the absence of any applicable bylaw, by such
person or persons as the board of directors of the corporate shareholder
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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. 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 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 name or the name of his nominee. 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 such person without
the transfer thereof into his name. If shares stand of record in the names of
two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary of the 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
shall have the following effect: (a) if only one votes, in person or by proxy,
his act binds all; (b) if more than one votes, in person or by proxy, the act
of the majority so voting binds all; (c) if more than one votes, 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; or (d) 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 hereof shall
be a majority or a vote evenly split in interest. The principles of this
paragraph shall apply, insofar as possible, to execution of proxies, waivers,
consents, or objections and for the purpose of ascertaining the presence of a
quorum.
Section 10. Proxies. Any shareholder of the Corporation, other person
entitled to vote on behalf of a shareholder pursuant to law, or attorney-in-
fact for a shareholder may vote the shareholder's shares in person or by proxy.
Any shareholder of the Corporation, other person entitled to vote on behalf of
a shareholder pursuant to law, or attorney-in-fact for a shareholder may
appoint a proxy to vote or otherwise act for the shareholder by submitting an
appointment form in writing. Any type of Electronic Transmission appearing to
have been, or containing or accompanied by such information or obtained under
such procedures to reasonably ensure that the Electronic Transmission was,
transmitted by such person is a sufficient appointment. An appointment of a
proxy is effective when received by the Secretary of the Corporation or such
other officer or agent which is authorized to tabulate votes, and shall be
valid for up to 11 months, unless a longer period is expressly provided in the
appointment. 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 authority
under the appointment. 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.
Section 11. Shareholder List. After fixing a record date for a
meeting of shareholders, the Corporation shall prepare an alphabetical list of
the names of all its shareholders who are entitled to notice of the meeting,
arranged by voting group with the address of, and the number and class and
series, if any, of shares held by each. The shareholders' list must be
available for inspection by any shareholder for a period of ten (10) 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 on a reasonably accessible electronic network
if the information required to gain access to such list was provided with the
notice of the meeting or during ordinary business hours, at the principal place
of business of the Corporation for a period of at least ten (10) days before
the meeting. Any shareholder of the Corporation or his agent or attorney is
entitled on written demand to inspect the shareholders' list (subject to the
requirements of the FBCA), during regular business hours and at his expense,
during the period it is available for inspection. The Corporation shall make
the shareholders' list available at the meeting of shareholders, and any
shareholder or his agent or attorney is entitled to inspect the list at any
time during the meeting or any adjournment.
Section 12. Fixing Record Date. For the purpose of determining
shareholders entitled to notice of a shareholders' meeting, to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders
for any other proper purposes, the Board of Directors may fix in advance a
date as the record date (which record date shall not precede the date on which
the resolution fixing the record date is adopted by the Board) for any such
determination of shareholders, such date in any case to be not more than
seventy (70) days, and, in case of a meeting of shareholders, not less than ten
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(10) days, prior to the date of a meeting or the date on which the particular
action requiring such determination of shareholders is to be taken. If no
record date is fixed for the determination of shareholders entitled to notice
of or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which the notice of the meeting is
mailed or the date on which the resolutions of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record
date for such determination of shareholders. A determination of shareholders
entitled to notice of or to vote at a shareholders' meeting shall be effective
for any adjournment of the meeting unless the board of directors fixes a new
record date, which it shall do if the meeting is adjourned to a date more than
one-hundred twenty (120) days after the date fixed for the original meeting.
Section 13. Inspectors and Judges. The Board of Directors in advance
of any meeting may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any
adjournment(s) thereof. If any inspector or inspectors, or judge or judges, are
not appointed, the person presiding at the meeting may, but need not, appoint
one or more inspectors or judges. In case any person who may be appointed as an
inspector or judge fails to appear or act, the vacancy may be filled by the
Board of Directors in advance of the meeting, or at the meeting by the person
presiding thereat. The inspectors or judges, if any, shall determine the number
of shares of stock outstanding and the voting power of each, the shares of
stock represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots and consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate votes, ballots and consents, determine the result, and
do such acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting, the inspector
or inspectors or judge or judges, if any, shall make a report in writing of any
challenge, question or matter determined by him or them, and execute a
certificate of any fact found by him or them.
Section 14. Advance Notice. Shareholders entitled to vote on the
election of directors at the annual meeting of shareholders may nominate
persons for election to the board of directors in accordance with the advance
notice provisions of Article X of the Articles of Incorporation.
ARTICLE THREE
DIRECTORS
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Section 1. Number of Directors. The number of directors constituting the
Board of Directors shall not be less than three (3) nor more than fifteen (15),
and the exact number of Directors shall be fixed from time to time by
resolution of the Board of Directors; provided, however, no director's term
shall be shortened by reason of a resolution reducing the number of directors.
Section 2. Qualifications. Directors must be natural persons who are 18
years of age or older but need not be residents of the State of Florida,
shareholders of the Corporation or citizens of the United States.
Section 3. Vacancies. Any vacancy occurring in the Board of Directors and
any directorship to be filled by reason of an increase in the size of the Board
of Directors shall be filled by the affirmative vote of a majority of the
current directors though less than a quorum of the Board of Directors, or may
be filled by an election at an annual or special meeting of the shareholders
called for that purpose, unless otherwise provided by the FBCA or other
applicable law. The term of a director elected to fill a vacancy shall expire
at the next shareholders meeting at which directors are to be elected.
Section 4. Removal. A director may only be removed for cause, as defined
in Article V of the Articles of Incorporation.
Section 5. Resignation of Directors. A director may resign at any time by
notice in writing to the Corporation, the Board of Directors or the Chairman of
the Board. Such resignation shall take effect when the notice is delivered
unless the notice specifies a later effective date or an effective date
determined upon the subsequent happening of an event. If a resignation is made
effective at a later date or upon the subsequent happening of an event, the
Board of Directors may fill the pending vacancy before the effective date if
they provide that the successor does not take office until the effective date.
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Section 6. Powers. Except as provided in the Articles of Incorporation and
by the FBCA, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be managed under the
direction of, its Board of Directors.
Section 7. Place of Meetings. Meetings of the Board of Directors, regular
or special, may be held either within or without the State of Florida.
Section 8. Annual Meeting. The first meeting of each newly elected Board
of Directors shall be held, without call or notice, immediately following each
annual meeting of shareholders.
Section 9. Regular Meetings. Regular meetings of the Board of Directors
may also be held without notice at such time and at such place as shall from
time to time be determined by the Board of Directors.
Section 10. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, Chief Executive Officer or the
President and shall be called by the Secretary upon the written request of any
two (2) directors. Notice of the date, time and place of special meetings of
the Board of Directors shall be given to each director at least forty-eight
(48) hours before the meeting. Except as required by statute, neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 11. Notice. Unless otherwise stated in this Article Three,
whenever notice is required to be given to any director by applicable law, the
Articles of Incorporation or these Bylaws, such notice shall be deemed given
effectively if given in person or by telephone or in writing.
Section 12. Waiver of Notice. Whenever notice to directors is required by
applicable law, the Articles of Incorporation or these Bylaws, a waiver
thereof, in writing signed by the director entitled to the notice, whether
before or after such notice is required, shall be deemed equivalent to notice.
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 and 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.
Section 13. Quorum; Required Vote; Presumption of Assent. A majority of
the number of directors fixed by, or in the manner provided in, these Bylaws
shall constitute a quorum for the transaction of business; provided, however,
that whenever, for any reason, a vacancy occurs in the Board of Directors, a
quorum shall consist of a majority of the remaining directors until the vacancy
has been filled. The act of a majority of the directors present at a meeting at
which a quorum is present when the vote is taken shall be the act of the Board
of Directors. A director of the 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 shall be presumed to have assented to the action taken, unless
he objects at the beginning of the meeting, or promptly upon his arrival, to
holding the meeting or transacting specific business at the meeting, or he
votes against or abstains from the action taken.
Section 14. Action Without Meeting. Unless otherwise restricted by the
Articles of Incorporation or by these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all directors or members of such
committee, as the case may be, consent thereto in writing, and the writings are
filed with the minutes of proceedings of the Board of Directors or committee in
accordance with applicable law. Action taken under this section is effective
when the last director signs the consent, unless the consent specifies a
different effective date. A consent signed under this Section 14 shall have the
effect of a meeting vote and may be described as such in any document.
Section 15. Participation in Meetings By Conference Telephone or Similar
Communications Equipment. Members of the Board of Directors may participate in
a regular or special meeting of the Board 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. Participation in such a
meeting shall constitute presence in person at the meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
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Section 16. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 17. Committees. The Board of Directors by resolution may
designate one or more committees to assist the Board of Directors in the
discharge of its duties, each such committee consisting of such members as
shall be prescribed from time to time by the Board of Directors. The
designation of any such committee and the delegation thereto of authority shall
not operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed by law. The following committees shall be standing
committees of the Board of Directors: the Executive Committee, the Compensation
Committee, the Audit Committee and the Nominating and Corporate Governance
Committee. The Board of Directors may designate, by resolution adopted by a
majority of the whole Board, additional committees and may prescribe for each
such committee such powers and authority as may properly be granted to such
committees.
(a) Tenure and Qualifications. Each committee member shall hold
office until the next regular annual meeting of the Board of Directors
following his designation or at any other time the Board of Directors
shall determine.
(b) Meetings. Regular meetings of a committee may be held without
notice at such times and places as the members of the committee may fix
from time to time by resolution. Special meetings of a committee may be
called by any member thereof upon not less than two days' notice stating
the place, date and hour of the meeting, Any committee member may waive
notice of the meeting before or after such meeting, and no notice of any
meeting need be given to any member thereof who attends in person. The
notice of a meeting of a committee need not state the business proposed to
be transacted at the meeting.
(c) Quorum. A majority of the members of a committee shall
constitute a quorum for the transaction of business at any meeting
thereof and action of a committee must be authorized by the affirmative
vote of a majority of the members present at a meeting at which a quorum
is present.
(d) Action without a Meeting. Any action that may be taken by a
committee at a meeting may be taken without a meeting in accordance with
Section 14 of this Article Three.
(e) Vacancies. Any vacancy in a committee may be filled by a
resolution adopted by a majority of the Board of Directors.
(f) Resignations and Removal. Any member of a committee may be
removed at any time with or without cause by resolution adopted by a
majority of the Board of Directors. Any committee member may resign at any
time by notice in writing to the Chairman of the Board or Secretary of the
Corporation, and unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
(g) Procedure. Each standing committee shall adopt a committee
charter, shall elect a chair from its members and may fix its own rules of
procedure which shall not be inconsistent with these Bylaws or any
resolution of the Board of Directors.
(h) Participation in Meetings By Conference Telephone or Similar
Communications Equipment. A committee may hold meetings of such committee
by the use of a conference telephone or similar communications equipment
in accordance with Section 15 of this Article Three.
(i) Executive Committee. The Executive Committee of the Board of
Directors shall consist of two or more members of the Board of Directors
and the Chief Financial Officer of the Corporation, as
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the Board of Directors may determine. The primary purpose and function of
the Executive Committee shall be to (i) oversee management or other
special projects on behalf of the Board of Directors and (ii) act upon
matters when the Board of Directors is not in session or cannot be
assembled. The Executive Committee, when the Board of Directors is not in
session, shall have and may exercise all of the authority of the Board of
Directors except to the extent, if any, that such authority shall be
limited by resolution of the Board of Directors or applicable law. The
Executive Committee shall have such further purposes, functions, powers
and responsibilities as may be designated by the Board of Directors.
(j) Compensation Committee. The Compensation Committee shall have
such purposes, functions, powers and responsibilities as may be designated
by the Board of Directors in the Charter of the Compensation Committee.
(k) Audit Committee. The Audit Committee shall have such purposes,
functions, powers and responsibilities as may be designated by the Board
of Directors in the Charter of the Audit Committee.
(l) Nominating and Corporate Governance Committee. The Nominating and
Corporate Governance Committee shall have such purposes, functions, powers
and responsibilities as may be designated by the Board of Directors in the
Charter of the Nominating and Corporate Governance Committee.
Section 18. Corporate Governance Guidelines. By resolution the Board of
Directors may establish and otherwise adopt guidelines and policies relating
to corporate governance matters. Any such guidelines or policies that may be
established by the Board of Directors shall not have the effect of amending
these Bylaws. In the event of any inconsistency or conflict between the terms
of these Bylaws and any such corporate governance guidelines or policies
established by the Board of Directors, the terms of these Bylaws shall govern
and control.
Section 19. Compensation of Directors. The Board of Directors shall have
the authority to fix the compensation of directors. Without limiting the
foregoing, the directors may be paid (i) their expenses, if any, of attendance
at each meeting of the Board of Directors and each committee thereof, and (ii)
a fixed sum for attendance at each meeting of the Board of Directors and each
committee thereof, and/or a stated retainer as a member of the Board of
Directors and each committee thereof. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation for such services from the Corporation. The annual compensation of
directors shall be paid at such times and in such installments as the Board of
Directors may determine.
Section 20. Chairman of the Board. The Board of Directors may, in its
discretion, choose a Chairman of the Board who shall preside at meetings of
the shareholders and of the directors and shall be an ex officio member of all
standing committees. The Chairman of the Board shall have such other powers
and shall perform such other duties as shall be designated by the Board of
Directors. The Chairman of the Board shall be a member of the Board of
Directors but no other officers of the Corporation need be a director. The
Chairman of the Board shall serve until his successor is chosen and qualified,
but he may be removed at any time by the affirmative vote of a majority of the
Board of Directors.
ARTICLE FOUR
OFFICERS
--------
Section 1. Positions. The officers of the Corporation shall consist of a
Chief Executive Officer, a President, a Chief Financial Officer, one or more
Vice Presidents (who may be designated Executive or Senior Vice Presidents),
a Secretary and a Treasurer, and, if elected by the Board of Directors by
resolution, a Chairman of the Board. Such other officers and assistant
officers as may be deemed necessary may be elected or appointed by the Board
of Directors. Any two or more offices may be held by the same person.
Section 2. Election of Specified Officers by Board. The specified
officers of the Corporation shall be elected by the Board of Directors at the
first meeting after each annual meeting of shareholders. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall
7
resign or shall have been removed in the manner hereinafter provided. In its
discretion, the Board of Directors may leave unfilled any office except those
of Chief Executive Officer, Chief Financial Officer and Secretary.
Section 3. Election or Appointment of Other Officers. Such other officers
and assistant officers and agents as may be deemed necessary may be elected or
appointed by the Board of Directors, or, unless otherwise specified herein,
appointed by the Chief Executive Officer of the Corporation. The Board of
Directors shall be advised of appointments by the Chief Executive Officer at
or before the next scheduled Board of Directors meeting.
Section 4. Salaries. The salaries of all officers of the Corporation to
be elected by the Board of Directors pursuant to Section 2 of this Article
Four shall be fixed from time to time by the Board of Directors or pursuant to
its direction. The salaries of all other elected or appointed officers of the
Corporation shall be fixed from time to time by the Chief Executive Officer of
the Corporation or pursuant to his direction.
Section 5. Term, Resignation. The officers of the Corporation shall hold
office until their successors are chosen and qualified. Any officer or agent
elected or appointed by the Board of Directors or the Chief Executive Officer
of the Corporation may be removed, with or without cause, by the Board of
Directors. Any officers or agents appointed by the Chief Executive Officer of
the Corporation pursuant to Section 3 of this Article Four may also be removed
from such officer positions by the Chief Executive Officer, with or without
cause. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise shall be filled by the Board of Directors,
or, in the case of an officer appointed by the Chief Executive Officer of the
Corporation, by the Chief Executive Officer or the Board of Directors. Any
officer of the Corporation may resign from his respective office or position
by delivering notice to the Corporation. Such resignation is effective when
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 pending vacancy before the
effective date if the Board provides that the successor does not take office
until the effective date.
Section 6. Chief Executive Officer. The Chief Executive Officer shall be
the chief executive officer of the Corporation, shall have general and active
management of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. In the absence
of the Chairman of the Board or in the event the Board of Directors shall not
have designated a chairman of the board, the Chief Executive Officer shall
preside at meetings of the shareholders and the Board of Directors. He or she
may sign, execute, and deliver in the name of the Corporation any powers of
attorney, contracts, bonds, and other obligations and shall perform such other
duties as may be prescribed from time to time by the Board of Directors or by
these Bylaws.
Section 7. President. If the Chief Executive Officer is not also the
President, the President shall have such general and active management of the
business of the Corporation as may be determined by the Board of Directors and
shall, subject to direction from the Chief Executive Officer, see that all
orders and resolutions of the Board of Directors are carried into effect. In
the absence of the Chairman of the Board or in the event the Board of Directors
shall not have designated a chairman of the board, and in the absence of the
Chief Executive Officer, the President shall preside at meetings of the
shareholders and the Board of Directors. The President may sign and execute
contracts and other obligations pertaining to the regular course of his duties.
Section 8. Vice Presidents. The Vice Presidents in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the President, perform the duties and exercise the
powers of the President. They shall perform such other duties and have such
other powers as the Board of Directors shall prescribe or as the President may
from time to time delegate. A Vice President may sign and execute contracts and
other obligations pertaining to the regular course of his or her duties.
Section 9. Chief Financial Officer. The Chief Financial Officer shall be
responsible for the financial reporting on a consolidated basis of the Company
and its subsidiaries. He shall perform such other duties as may be assigned by
the Board of Directors or the Chief Executive Officer, and shall be responsible
to the Chief Executive Officer for the performance of the duties of the office.
Section 10. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the shareholders and shall keep the
minutes of all the proceedings of the meetings of the shareholders and of the
Board of Directors in a book or books to be kept for that purpose and, to the
extent ordered by the Board of
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Directors or the Chairman, shall perform like duties for all committees of the
Board of Directors. The Secretary shall give, or cause to be given, notice of
all meetings of the shareholders, special meetings of the Board of Directors
and of any committee appointed by the Board. The Secretary shall keep in safe
custody the seal of the Corporation and, when authorized by the Board of
Directors, affix the same to any instrument requiring it. The Secretary shall
perform such other duties as may be prescribed from time to time by the Board
of Directors or by the Chief Executive Officer.
Section 11. The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(b) receive and give receipts for moneys due and payable to the Corporation
from any source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries as shall be
selected in accordance with the provisions of Article Five of these Bylaws; and
(c) in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the
President or by the Board of Directors. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his duties in
such sum and with such surety or sureties as the Board of Directors shall
determine.
Section 12. Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries, when authorized by the Board of Directors, may sign with the
President or a Vice President certificates for shares of the Corporation the
issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their duties in
such sums and with such sureties as the Board of Directors shall determine.
The Assistant Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 13. Other Officers, Employees and Agents. Each and every other
officer, employee and agent of the Corporation shall possess, and may exercise,
such power and authority, and shall perform such duties, as may from time to
time be assigned to him by the Board of Directors, the officer so appointing
him and such officer or officers who may from time to time be designated by the
Board of Directors to exercise such supervisory authority.
ARTICLE FIVE
CERTIFICATES FOR SHARES
-----------------------
Section 1. Issue of Stock With or Without Certificates. The Board of
Directors may authorize the issue of some or all of the shares of any or all
of its classes or series without certificates. Certificates for those shares of
the capital stock of the Corporation that are represented by certificates shall
be in such forms as shall be approved by the Board of Directors. Each holder of
shares represented by certificates shall be entitled to have the certificate
for such shares issued under the seal of the Corporation, signed by the
Chairman of the Board, Chief Executive Officer, President or a Vice President,
and by the Secretary or an Assistant Secretary of the Corporation. All
certificates surrendered to the Corporation for transfer shall be cancelled and
no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and cancelled, except that in case
of a lost, destroyed or mutilated certificate a new one may be issued therefore
upon such terms and indemnity to the Corporation as the Board of Directors may
prescribe.
Section 2. Legends for Preferences and Restrictions on Transfer. The
designations, relative rights, preferences and limitations applicable to each
class of shares and the variations in rights, preferences and limitations
determined for each series within a class (and the authority of the Board of
Directors to determine variations for future series) shall 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.
Every certificate representing shares that are restricted as to the sale,
disposition, or transfer of such shares shall also indicate that such shares
are restricted as to transfer and there shall be set forth or fairly summarized
upon the certificate, or the certificate shall indicate that the Corporation
will furnish to any shareholder upon request and without charge, a full
statement of such restrictions. If the Corporation issues any shares that are
not registered under the Securities Act of 1933, as amended, and registered or
qualified under the applicable state securities laws, the transfer of any such
shares shall be restricted substantially in accordance with the following
legend:
9
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED FOR SALE,
SOLD, TRANSFERRED OR PLEDGED WITHOUT (1) REGISTRATION UNDER THE
SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE LAW, OR (2) AT HOLDER'S
EXPENSE, AN OPINION (SATISFACTORY TO-THE CORPORATION) OF COUNSEL
(SATISFACTORY TO THE CORPORATION) THAT REGISTRATION IS NOT REQUIRED."
Section 3. Facsimile Signatures. The signatures of the Chairman of the
Board, Chief Executive Officer, President or a Vice President and the
Secretary or Assistant Secretary upon a certificate may be facsimiles;
provided, that where a certificate is countersigned by a transfer agent,
other than the Corporation or its employee, or by a registrar, other than the
Corporation or its employee, the corporate seal and any other signature on
such certificate may be a facsimile, engraved, stamped or printed. In case any
officer, transfer agent or registrar of the Corporation who shall have signed,
or whose facsimile signature shall have been used on any such certificate,
shall cease to be such officer, transfer agent or registrar, whether because
of death, resignation, or otherwise, before such certificate shall have been
delivered by the Corporation, such certificate shall nevertheless be deemed to
have been adopted by the Corporation and may be issued and delivered as though
the person who signed such certificate or whose facsimile signature shall have
been used thereon had not ceased to be such officer, transfer agent or
registrar.
Section 4. Lost Certificates. Any person claiming a certificate
representing shares to be lost or destroyed shall make an affidavit or
affirmation of that fact, in form satisfactory to the Board of Directors and to
the transfer agent and registrar of the Corporation, if any, and shall give to
the Corporation, its transfer agent and registrar, if any, a bond of indemnity
in such sum as the Board of Directors or Secretary may direct, in form
satisfactory to the Board of Directors and to the transfer agent and registrar
of the Corporation, if any, and with or without sureties as the Board of
Directors or Secretary with the approval of the transfer agent and registrar,
if any, may prescribe; whereupon the Chairman, Chief Executive Officer,
President or a Vice President and the Secretary or an Assistant Secretary may
cause to be issued a new certificate of the same tenor (or cause an appropriate
entry to be made in respect of shares without certificates) and for the same
number of shares as the one alleged to have been lost or destroyed.
Section 5. Transfer of Shares. The shares of the Corporation shall be
transferable upon its books by the holders thereof in person or by their duly
authorized attorneys or legal representatives, and upon such transfer of any
shares represented by certificates, the old certificates for such shares shall
be surrendered to the Corporation by the delivery thereof to the person in
charge of the shares and transfer books and ledgers, or to such other person
as the Board of Directors may designate, by whom they shall be canceled, and
new certificates (or an appropriate entry in respect of shares without
certificates) shall thereupon be issued for the shares so transferred to the
person entitled thereto. A record shall be made of each transfer and whenever
a transfer shall be made for collateral security, and not absolutely, it shall
be so expressed in the entry of the transfer.
Section 6. Registered Shareholders. The Corporation shall be entitled to
recognize the exclusive rights of a person registered on its books as the owner
of shares as the holder in fact thereof, and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on the part
of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by applicable law.
ARTICLE SIX
GENERAL PROVISIONS
------------------
Section 1. Dividends. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the
provisions of the Articles of Incorporation.
Section 2. Reserves. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
10
<PAGE
Section 4. Fiscal Year. The fiscal year of the Corporation shall be fixed
from time to time by resolution of the Board of Directors.
Section 5. Seal. The corporate seal shall have inscribed thereon the name
and state of incorporation of the Corporation. The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
Section 6. Gender. All words used in these Bylaws in the masculine gender
shall extend to and shall include the feminine and neuter genders.
Section 7. Construction. All references herein in the plural shall be
construed to include the singular and in the singular shall be construed to
include the plural, if the context so requires.
Section 8. Conflict With Applicable Law or Articles of Incorporation.
These Bylaws are adopted subject to any applicable law and the Articles of
Incorporation. Whenever these Bylaws may conflict with any applicable law or
the Articles of Incorporation, such conflict shall be resolved in favor of such
law or the Articles of Incorporation.
Section 9. Exclusive Forum. Unless the corporation consents in writing to
the selection of an alternative forum, the sole and exclusive forum for (i)
any derivative action or proceeding brought on behalf of the corporation, (ii)
any action asserting a claim of breach of a fiduciary duty owed by any director
or officer or other employee of the corporation to the corporation or the
corporation's shareholders, (iii) any action asserting a claim against the
corporation or any director or officer or other employee of the corporation
arising pursuant to any provision of the Florida Business Corporation Act or
the corporation's articles of incorporation or bylaws (as either may be amended
from time to time), or (iv) any action asserting a claim against the
corporation or any director or officer or other employee of the corporation
governed by the internal affairs doctrine, shall be a state court located
within Duval County, Florida (or, if no state court located within Duval
County, Florida has jurisdiction, the federal district court for the Middle
District of Florida).
ARTICLE SEVEN
AMENDMENTS OF BYLAWS
--------------------
Except as otherwise provided in the FBCA and except where the
shareholders, in amending or repealing these Bylaws generally or a particular
provision of these Bylaws, provide expressly that the Board of Directors may
not amend or repeal these Bylaws or that provision of these Bylaws, the Board
of Directors shall have power to add any provision to, or to amend or repeal
any provision of, these Bylaws by the affirmative vote of a majority of all of
the directors at any regular or special meeting of the Board of Directors,
provided that a statement of the proposed action shall have been included in
the notice or waiver of notice of such meeting of the Board. The shareholders
shall have power to add any provision to, or to amend or repeal any provision
of, these Bylaws by the affirmative vote of a majority of the votes cast at any
meeting, provided that a statement of the proposed action shall have been
included in the Company's notice of such meeting of shareholders.
ARTICLE EIGHT
INDEMNIFICATION
---------------
Section 1. Indemnification of Directors and Officers in Third Party
Proceedings. Subject to the other provisions of this Article Eight, the
Corporation shall indemnify and hold harmless, to the fullest extent permitted
by the FBCA, as the same exists now or as it may be hereinafter amended (but,
in the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than said
law permitted the Corporation to provide prior to such amendment), any person
(and the heirs, executors, administrators or estate of such person) who was or
is a party or is threatened to be made a party to, or otherwise becomes
involved in, a Proceeding (as hereinafter defined) other than an action by or
in the right of the Corporation by reason of the fact that such person is or
was serving, or had agreed to serve, in an Official Capacity (as defined in
Section 17 of this Article Eight) for the Corporation, or while serving in an
Official Capacity for the Corporation is or was serving at the request of the
Corporation in an Official Capacity for another corporation, partnership,
limited
11
liability company, joint venture, trust or other enterprise (an "Other
Enterprise"), including service with respect to employee benefit plans
maintained or sponsored by the Corporation, or is an employee of the
Corporation specifically designated by the Board as an indemnified employee
(hereinafter, each of the foregoing persons, a "Covered Person"), against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such Proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had no reasonable
cause to believe such person's conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, 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 such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had reasonable
cause to believe that such person's conduct was unlawful.
Section 2. Indemnification of Directors and Officers in Actions By or in
the Right of the Corporation. Subject to the other provisions of this Article
Eight, the Corporation shall indemnify and hold harmless, to the fullest
extent permitted by the FBCA, any Covered Person who was or is a party or is
threatened to be made a party to, or otherwise becomes involved in, a
Proceeding by or in the right of the Corporation against Expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
Section 3. Successful Defense. To the extent that a Covered Person has
been successful on the merits or otherwise in defense of any Proceeding
described in Section 1 or Section 2 of this Article Eight, or in defense of
any claim, issue or matter therein, such person shall be indemnified against
Expenses (as defined in Section 17 of this Article Eight) (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
Section 4. Indemnification of Others. Subject to the other provisions of
this Article Eight, the Corporation shall have power to indemnify its employees
and its agents to the extent not prohibited by the FBCA or other applicable
law. The Board shall have the power to delegate the determination of whether
employees or agents shall be indemnified to such person or persons as the Board
determines.
Section 5. Advance Payment of Expenses.
(a) Expenses (including attorneys' fees) incurred by any Covered
Person in defending any Proceeding shall be paid by the Corporation in advance
of the final disposition of such Proceeding. Such advances shall be paid by the
Corporation within ten (10) calendar days after the receipt by the Corporation
of a statement or statements from the claimant requesting such advance or
advances from time to time; provided, that if Florida law requires, the payment
of such expenses incurred by a Covered Person in his or her capacity as a
director or officer shall be made only upon delivery to the Corporation of an
undertaking in writing (the "Undertaking") by or on behalf of such Covered
Person to repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right of appeal (a
"final disposition") that such Covered Person is not entitled to be indemnified
for such expenses under this bylaw or otherwise. The Covered Person's
undertaking to repay the Corporation any amounts advanced for Expenses shall
not be required to be secured and shall not bear interest.
(b) Except as otherwise provided in the FBCA or this Section 5, the
Corporation shall not impose on the Covered Person additional conditions to
the advancement of Expenses or require from the Covered Person additional
undertakings regarding repayment. Advancements of Expenses shall be made
without regard to the Covered Person's ability to repay the Expenses.
(c) Advancements of Expenses pursuant to this subsection shall not
require approval of the Board or the shareholders of the Corporation, or of any
other person or body. The Secretary shall promptly advise the Board in
12
writing of the request for advancement of Expenses, of the amount and other
details of the request and of the undertaking to make repayment provided
pursuant to this Section 5.
(d) Advancements of Expenses to a Covered Person shall include any
and all reasonable Expenses incurred pursuing an action to enforce this right
of advancement, including Expenses incurred preparing and forwarding statements
to the Corporation to support the advancements claimed.
(e) The right to advancement of Expenses shall not apply to (i) any
action, suit or proceeding against an agent brought by the Corporation and
approved by a majority of the authorized members of the Board which alleges
willful misappropriation of corporate assets by such agent, wrongful disclosure
of confidential information, or any other willful and deliberate breach in bad
faith of such agent's duty to the Corporation or its shareholders, or (ii) any
claim for which indemnification is excluded pursuant to these Bylaws, but shall
apply to any Proceeding referenced in Section 6(b) or Section 6(c) of this
Article Eight prior to a determination that the person is not entitled to be
indemnified by the Corporation.
Section 6. Limitations on Indemnification. Subject to the requirements in
Section 3 of this Article Eight and the FBCA, the Corporation shall not be
obligated to indemnify any person pursuant to this Article Eight in connection
with any Proceeding (or any part of any Proceeding):
(a) for which payment has actually been made to or on behalf of such
person under any statute, insurance policy, indemnity provision, vote or
otherwise, except with respect to any excess beyond the amount paid;
(b) for an accounting or disgorgement of profits pursuant to Section
16(b) of the Exchange Act, or similar provisions of federal, state or local
statutory law or common law, if such person is held liable therefor (including
pursuant to any settlement arrangements);
(c) for any reimbursement of the Corporation by such person of any
bonus or other incentive-based or equity-based compensation or of any profits
realized by such person from the sale of securities of the Corporation, to
the extent the Corporation is required to seek recovery of such compensation
pursuant to any applicable law (including Sections 304 or 306 of the
Sarbanes-Oxley Act of 2002), the terms of any listing standards applicable to
the Corporation or any compensation recovery policy that the Corporation may
have in effect from time to time;
(d) initiated by such person against the Corporation or its
directors, officers, employees, agents or other indemnitees, unless (a) the
Board of Directors authorized the Proceeding (or the relevant part of the
Proceeding) prior to its initiation, (b) the Corporation provides the
indemnification, in its sole discretion, pursuant to the powers vested in the
Corporation under applicable law, (c) otherwise required to be made under
Section 7 of this Article Eight or (d) otherwise required by applicable law; or
(e) if prohibited by applicable law; provided, however, that if any
provision or provisions of this Article Eight shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (1) the validity, legality
and enforceability of the remaining provisions of this Article Eight
(including, without limitation, each portion of any paragraph or clause
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable) shall not in
any way be affected or impaired thereby; and (2) to the fullest extent
possible, the provisions of this Article Eight (including, without limitation,
each such portion of any paragraph or clause containing any such provision
held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
Section 7. Indemnification Claims; Determination.
(a) To obtain indemnification under this Article Eight, a claimant
shall submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent
the claimant is entitled to indemnification. Upon written request by a
claimant for indemnification, a determination (the "Determination"), if
required by applicable law, with respect to the claimant's entitlement thereto
shall be made as follows: (i) by the Board by majority vote of a quorum
consisting of Disinterested Directors (as defined in Section 17 of this
Article Eight); (ii) if such a quorum of Disinterested Directors cannot be
obtained, by majority vote of a committee duly
13
designated by the Board (in which all directors, whether or not Disinterested
Directors, may participate) consisting solely of two or more Disinterested
Directors; (iii) if such a committee cannot be designated, by any Independent
Counsel (as defined in Section 17 of this Article Eight) selected by the Board
prescribed in (i) above or by the committee of the Board prescribed in (ii)
above, in a written opinion to the Board, a copy of which shall be delivered
to the claimant; or if a quorum of the Board cannot be obtained for (a) above
and the committee cannot be designated under (b) above, selected by majority
vote of the full Board (in which directors who are parties may participate);
or (iii) if such Independent Legal Counsel determination cannot be obtained,
by majority vote of a quorum consisting of shareholders who are not parties
to such Proceeding, or if no such quorum is obtainable, by a majority vote of
shareholders who are not parties to the Proceeding. If it is so determined
that the claimant is entitled to indemnification, payment to the claimant
shall be made within ten (10) calendar days after such determination.
(b)(i) If a claim for indemnification under this Article Eight is
not paid in full by the Corporation within thirty (30) calendar days after a
written claim pursuant to Section 7(a) above has been received by the
Corporation, or (ii) if a request for advancement of Expenses under this
Article Eight is not paid in full by the Corporation within ten (10) calendar
days after a statement pursuant to Section 5 above and the required
Undertaking, if any, have been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation in a court of competent
jurisdiction to recover the unpaid amount of the claim for indemnification or
request for advancement of Expenses and, if successful in whole or in part,
the claimant shall be entitled to be paid also any and all Expenses incurred
in connection with prosecuting such claim. In any such suit, the Corporation
shall, to the fullest extent not prohibited by law, have the burden of proving
that the claimant is not entitled to the requested indemnification or
advancement of Expenses. It shall be a defense to any such action that, under
the FBCA or other applicable law, the claimant has not met the standard of
conduct which makes it permissible for the Corporation to indemnify the
claimant for the amount claimed or that the claimant is not entitled to the
requested advancement of Expenses, but (except where the required Undertaking,
if any, has not been tendered to the Corporation) the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Disinterested Directors, Independent Counsel or shareholders)
to have made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth under the FBCA or
other applicable law, nor an actual determination by the Corporation
(including its Disinterested Directors, Independent Counsel or shareholders)
that the claimant has not met such applicable standard of conduct, shall be
a defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
(c) The termination of any Proceeding by judgment, order, settlement,
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 the person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the person's conduct was
unlawful.
(d) If a Determination shall have been made pursuant to Section 7(a)
above that the claimant is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding commenced pursuant to
Section 7(b) above.
(e) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to Section 7(b) above that the procedures and
presumptions of this Bylaw are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the
provisions of this Bylaw.
Section 8. Procedures For Determination Of Whether Standards Have Been
Satisfied.
(a) Costs. All costs of making the Determination shall be borne
solely by the Corporation, including, but not limited to, the costs of legal
counsel, proxy solicitations and judicial determinations. The Corporation shall
also be solely responsible for paying (i) all reasonable Expenses incurred by
the indemnified person to enforce the indemnification rights provided pursuant
to this Article Eight, including, but not limited to, the costs incurred by the
indemnified person to obtain court-ordered indemnification pursuant to Section
7 hereof regardless of the outcome of any such application or Proceeding, and
(ii) all costs of defending any suits or Proceedings challenging payments to
the indemnified person under these Bylaws.
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(b) Timing of the Determination. The Corporation shall use its best
efforts to make the Determination contemplated by Section 7 hereof promptly.
(i) if the Determination is to be made by the Board or a
committee thereof, such Determination shall be made not later than fifteen
(15) business days after a written request for a Determination (a "Request")
is delivered to the Corporation by the Indemnitee;
(ii) if the Determination is to be made by Independent
Counsel, such Determination shall be made not later than thirty (30) days
after a Request is delivered to the Corporation by the indemnified person; and
(iii) if the Determination is to be made by the shareholders
of the Corporation, such Determination shall be made not later than ninety
(120) days after a Request is delivered to the Corporation by the indemnified
person.
Section 9. Contract Rights. All of the rights conferred in this Article
Eight, as to indemnification, advancement of Expenses and otherwise, shall be
contract rights between the Corporation and each indemnified person to whom
such rights are extended that vest at the commencement of such indemnified
person's service to or at the request of the Corporation and (i) no amendment,
modification or repeal of this Article Eight shall affect, to the detriment of
the indemnified person and such indemnified person's heirs, executors,
administrators and estate, such obligations of the Corporation in connection
with a claim based on any act or failure to act occurring before such
modification or repeal, and (ii) all of such rights shall continue as to any
such indemnified person who has ceased to serve in an Official Capacity for
the Corporation or ceased to serve at the request of the Corporation in an
Official Capacity for an Other Enterprise, and shall inure to the benefit of
such indemnified person's heirs, executors, administrators and estate, and
shall be applicable to proceedings commenced after the adoption hereof,
whether arising from acts or omissions occurring before or after the adoption
hereof.
Section 10. Non-Exclusivity Of Rights. All of the rights conferred
pursuant to this Article Eight, as to indemnification, advancement of Expenses
and otherwise, (i) shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of Expenses may be entitled under
the Articles of Incorporation or any statute, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in such
person's Official Capacity and as to action in another capacity while holding
such office, and (ii) cannot be terminated or impaired by the Corporation, the
Board of Directors or the shareholders of the Corporation with respect to a
person's service prior to the date of such termination. The Corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advancement of Expenses, to the fullest extent not prohibited by the FBCA or
other applicable law.
Section 11. Insurance and Funding.
(a) The Corporation shall have the power to purchase and maintain,
at its expense, insurance to protect itself and 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 expense, liability or loss asserted against such person and
incurred by such person in any such capacity or arising out of such person's
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under Florida Law. To the extent that the
Corporation maintains any policy or policies providing such insurance, each
such current or former director or officer, and each such agent or employee to
which rights to indemnification have been granted as provided in this Article
Eight, shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of the coverage thereunder for any such
current or former director, officer, employee or agent.
(b) The Corporation may create a trust fund, grant a security
interest or use other means (including, without limitation, a letter of
credit) to insure the payment of such sums as may become necessary to effect
indemnification as provided herein.
Section 12. Reliance. Persons who after the date of the adoption of
Article Eight serve or continue to serve the Corporation in an Official
Capacity or who, while serving in an Official Capacity, serve or continue to
serve in
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an Official Capacity for an Other Enterprise, shall be conclusively presumed
to have relied on the rights to indemnification and advancement of Expenses
contained in this Article Eight.
Section 13. No Imputation. The knowledge and/or actions, or failure to
act, of any other officer, director, employee or agent of the Corporation or
an Other Enterprise shall not be imputed to an indemnified person for purposes
of determining the right to indemnification under this Article Eight.
Section 14. Survival. The rights to indemnification and advancement of
Expenses conferred by this Article Eight shall continue as to a person who has
ceased to be a director, officer, employee, or agent of the Corporation or an
Other Enterprise and shall inure to the benefit of the heirs, executors,
administrators and estate of such person.
Section 15. Notices. Any notice, request or other communication required
or permitted to be given to the Corporation under this Article Eight shall be
in writing and delivered to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
Section 16. Savings Clause. If this Article Eight or any provision hereof
shall be held by a court of competent jurisdiction to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Article Eight (including,
without limitation, each section and subsection of this Article Eight
containing any such provision held to be invalid, illegal or unenforceable,
that is not itself held to be invalid, illegal or unenforceable) shall not in
any way be affected or impaired hereby, and (b) to the fullest extent possible
and permitted by the FBCA and other applicable law, the provisions of this
Article Eight (including, without limitation, each portion of any section or
subsection of this Article Eight containing any such provision held to be
invalid, illegal or unenforceable) shall be construed so as to give maximum
effect to the intent manifested by the provision held to be invalid, illegal
or unenforceable.
ARTICLE NINE
CERTAIN DEFINITIONS
-------------------
(a) The term "agent" includes a volunteer.
(b) The term "Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article Eight with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
(c) The term "deliver" or "delivery" means any method of delivery used in
conventional commercial practice, including delivery by hand, mail, commercial
delivery and Electronic Transmission.
(d) The term "Disinterested Director" means a director of the Corporation
who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(e) The term "Expenses" shall be broadly construed and shall include,
without limitation, all direct and indirect losses, liabilities, expenses,
including fees and expenses of attorneys, fees and expenses of accountants,
fees and expenses of public relations consultants and other advisors, court
costs, transcript costs, fees and expenses of experts, witness fees and
expenses, travel expenses, printing and binding costs, telephone charges,
delivery service fees, the premium, security for, and other costs relating
to any bond (including cost bonds, appraisal bonds, or their equivalents),
judgments, fines (including excise taxes assessed on a person with respect
to an employee benefit plan) and amounts paid in settlement and all other
disbursements or expenses of the types customarily incurred in connection
with (i) the investigation, prosecution, defense, appeal or settlement of a
Proceeding, (ii) serving as an actual or prospective witness, or preparing to
be a witness in a Proceeding, or other participation in, or other preparation
for, any Proceeding, (iii) any voluntary or required interviews or depositions
related to a Proceeding, and (iv) responding to, or objecting to, a request to
provide discovery in any Proceeding. Expenses shall also include any
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federal, state, local and foreign taxes imposed on such person as a result of
the actual or deemed receipt of any payments under this Article Eight.
(f) The term "Electronic Transmission" or "electronically transmitted"
shall mean any process of communication not directly involving the physical
exchange of paper that is suitable for the retention, retrieval and
reproduction of information by the recipient permitted by applicable law.
(g) The term "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable
standards of professional conduct then prevailing, would not have a conflict
of interest in representing either the corporation or the claimant in an
action to determine the claimant's rights under this Article Eight.
(h) The term "Official Capacity" shall mean service as a director or
officer of the Corporation or service, at the request of the Corporation while
serving in an Official Capacity for the Corporation, as a director, officer,
partner, member, manager, trustee, employee, agent or other representative of
an Other Enterprise.
(i) The term "Proceeding" shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement, arbitration and appeal of, and the giving of testimony in, any
threatened, pending or completed action, suit, investigation, inquiry,
hearing, arbitration, other alternative dispute mechanism or any other
proceeding, whether civil, criminal, administrative, investigative or
otherwise and whether formal or informal, including, without limitation,
actions by or in the right of the Corporation, a class of its security
holders or otherwise.
(j) 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.
(k) The term "sign", "signed" or "signature" means any symbol, manual,
facsimile, conformed or electronic signature adopted by a person with the
intent to authenticate a document.
(l) 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
reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
(m) If a document is required by these Bylaws to be "in writing" or
"written", an Electronic Transmission shall satisfy such requirement.
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