Attached files
| file | filename |
|---|---|
| EX-5.01 - SHADES HOLDINGS, INC. | v190709_ex5-01.htm |
| EX-3.01 - SHADES HOLDINGS, INC. | v190709_ex3-01.htm |
| EX-10.02 - SHADES HOLDINGS, INC. | v190709_ex10-02.htm |
| EX-21.01 - SHADES HOLDINGS, INC. | v190709_ex21-01.htm |
| EX-10.04 - SHADES HOLDINGS, INC. | v190709_ex10-04.htm |
| EX-10.03 - SHADES HOLDINGS, INC. | v190709_ex10-03.htm |
| EX-10.01 - SHADES HOLDINGS, INC. | v190709_ex10-01.htm |
| EX-10.05 - SHADES HOLDINGS, INC. | v190709_ex10-05.htm |
| EX-23.01 - SHADES HOLDINGS, INC. | v190709_ex23-01.htm |
| S-1 - SHADES HOLDINGS, INC. | v190709_s1.htm |
BY-LAWS
OF
SHADES
HOLDINGS, INC.
(Effective
as of November 23, 2009)
ARTICLE
I - OFFICES
Section
1. Principal
Office. The principal office of SHADES HOLDINGS, INC. (the
“Corporation”) shall be in Land O’Lakes, Florida, or such place within or
without the State of Florida as the Board of Directors of the Corporation (the
“Board of Directors” or the “Board”) shall from time to time
determine.
Section
2. Other
Offices. The Corporation may also have offices at such other
places both within and without the State of Florida as the Board of Directors or
the officers of the Corporation acting within their authority may from time to
time determine or the business of the Corporation may require.
ARTICLE
II - SHAREHOLDERS
Section
1. Annual
Meeting. The annual meeting of the shareholders shall be held
between January 1 and December 31, inclusive, in each year for the purpose of
electing directors and for the transaction of such other proper business as may
come before the meeting. The exact date of the meeting shall be
established by the Board of Directors from time to time.
Section
2. Special
Meetings. Special meetings of the shareholders may be called,
for any purpose or purposes, by the Board of Directors or the President. Special
meetings of the shareholders shall be called by the President or the Secretary
if the holders of not less than ten percent (10%) of all the votes
entitled to be cast on any issue proposed to be considered at such special
meeting sign, date and deliver to the President or the Secretary one or more
written demands for a special meeting, describing the purpose(s) for which it is
to be held. Special meetings of the shareholders of the Corporation may not be
called by any other person or persons. Notice and call of any such special
meeting shall state the purpose or purposes of the proposed meeting, and
business transacted at any special meeting of the shareholders shall be limited
to the purposes stated in the notice thereof.
Section
3. Place of
Meeting. The Board of Directors may designate any place,
either within or without the State of Florida, as the place of meeting for any
annual or special meeting of the shareholders. If no designation is made, the
place of meeting shall be the principal office of the Corporation in the State
of Florida.
Section
4. Notice
of Meeting. Written notice stating the date, time and place of
an annual or special meeting and, in the case of a special meeting, the purpose
or purposes for which it is called shall be given no fewer than ten (10) nor
more than sixty (60) days before the date of the meeting to each shareholder
entitled to vote at such meeting, except that no notice of a meeting need be
given to any shareholders for which notice is not required to be given under
applicable law. Notice may be delivered personally, via United States mail,
facsimile or other electronic transmission, or by private mail carriers handling
nationwide mail services, by or at the direction of the President, the
Secretary, the Board of Directors, or the person(s) calling the meeting. If
mailed via United States mail, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at the
shareholder’s address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid. If the notice is mailed at least
thirty (30) days before the date of the meeting, the mailing may be by a class
of United States mail other than first class.
Section
5. Notice
of Adjourned Meeting. If a shareholders’ meeting is adjourned
to a different date, time or place, notice need not be given of the new date,
time or place if the new date, time or place is announced at the meeting before
an adjournment is taken; and any business may be transacted at the adjourned
meeting that might have been transacted on the original date of the meeting. If,
however, a new record date for the adjourned meeting is or must be fixed under
law, notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date and who are otherwise entitled to notice
of such meeting.
Section
6. Waiver
of Call and Notice of Meeting. Call and notice of any
shareholders’ meeting may be waived by any shareholder before or after the date
and time stated in the notice. Such waiver must be in writing signed by the
shareholder and delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. Neither the business to be transacted at nor
the purpose of any meeting need be specified in such waiver. A shareholder’s
attendance at a meeting (a) waives such shareholder’s ability to object to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting, and (b) waives such shareholder’s ability to object to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
Section
7. Quorum. Except
as otherwise provided in these By-laws or in the Articles of Incorporation of
the Corporation, a majority (based on voting) of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at any meeting of the shareholders. 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;
and the withdrawal of shareholders after a quorum has been established at a
meeting shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
Section
8. Adjournment; Quorum for
Adjourned Meeting. If less than a majority (based on voting)
of the outstanding shares are represented at a meeting, a majority (based on
voting) of the shares so represented may adjourn the meeting from time to time
without further notice. At such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at the
meeting as originally noticed.
Section
9. Voting
on Matters Other than Election of Directors. At any meeting at
which a quorum is present, action on any matter other than the election of
directors shall be approved if the votes cast by the holders of shares
represented at the meeting and entitled to vote on the subject matter favoring
the action exceed the votes cast opposing the action, unless a greater number of
affirmative votes or voting by classes is required by law, the Articles of
Incorporation of the Corporation or these By-laws.
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Section
10. Voting
for Directors. Directors shall be elected by a plurality of
the votes cast by the shares entitled to vote at a meeting at which a quorum is
present.
Section
11. Voting
Lists. Prior to each meeting of shareholders, the officer or
agent having charge of the stock transfer books for shares of the Corporation
shall make a complete alphabetical list of the shareholders entitled to vote at
such meeting, or any adjournment thereof, arranged by voting group, with the
address and the number, class and series (if any) of shares held by each. The
list shall be subject to inspection by any shareholder during normal business
hours for at least ten (10) days prior to the meeting or such shorter time as
exists between the record date and the meeting. The list also shall be available
at the meeting and shall be subject to inspection by any shareholder at any time
during the meeting or its adjournment. The list shall be prima facie evidence as
to who are the shareholders entitled to examine such list or the transfer books
and to vote at any meeting of the shareholders. If the requirements of this
Section have not been substantially complied with, the meeting shall be
adjourned on the demand of any shareholder (in person or by proxy) until there
has been substantial compliance with the requirements. If no demand for
adjournment is made, failure to comply with the requirements of this Section
does not affect the validity of any action taken at the meeting.
Section
12. Voting
of Shares. Except as otherwise provided in the Articles of
Incorporation of the Corporation, each shareholder entitled to vote shall be
entitled at every meeting of the shareholders to one vote in person or by proxy
on each matter for each share of voting stock held by such shareholder. Such
right to vote shall be subject to the right of the Board of Directors to fix a
record date for voting shareholders as hereinafter provided. Treasury shares,
and shares of stock of the Corporation owned directly or indirectly by another
corporation the majority of the voting stock of which is owned or controlled by
the Corporation, shall not be voted at any meeting and shall not be counted in
determining the total number of outstanding shares.
Section
13. Proxies. At
all meetings of shareholders, a shareholder may vote by proxy, executed in
writing and delivered to the Corporation in the original or as a true and
correct copy of the original or by the shareholder’s duly authorized
attorney-in-fact. No proxy shall be valid after eleven (11) months from its
date, unless the proxy expressly provides for a longer period. Each
proxy shall be filed with the Secretary before or at the time of the meeting. A
proxy may be revoked at the pleasure of the record owner of the shares to which
it relates, unless the proxy conspicuously states otherwise and is coupled with
an interest. In the event that a proxy shall designate two (2) or more persons
to act as proxies, a majority of such persons present at the meeting, or, if
only one (1) is present, that one, shall have all of the powers conferred by the
proxy upon all the persons so designated, unless the instrument shall provide
otherwise.
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Section
14. Informal Action by
Shareholders. Unless otherwise provided in the Articles of
Incorporation of the Corporation, any action required or permitted to be taken
at a meeting of the shareholders may be taken by means of one or more written
consents that satisfy the requirements set forth below. In such event, no
meeting, prior notice or formal vote shall be required. To be effective, a
written consent (which may be in one or more counterparts) shall set forth the
action taken and shall be signed by shareholders holding shares representing not
less than the minimum number of votes of each voting group entitled to vote
thereon that would be necessary to authorize or take such action at a meeting at
which all voting groups and shares entitled to vote thereon were present and
voted. No written consent shall be effective unless, within sixty (60) days of
the date of the earliest dated consent delivered to the Secretary, written
consent signed by the number of shareholders required to take action is
delivered to the Secretary. If authorization of an action is obtained by one or
more written consents but less than all shareholders so consent, then within ten
(10) days after obtaining the authorization of such action by written consents,
notice must be given to each shareholder who did not consent in writing and to
each shareholder who is not entitled to vote on the action. The notice shall
fairly summarize the material features of the authorized action and, if the
action be such for which dissenters’ rights are provided under the Florida
Business Corporation Act, the notice shall contain a clear statement of the
right of shareholders dissenting therefrom to be paid the fair value of their
shares upon compliance with the provisions of the Florida Business Corporation
Act regarding the rights of dissenting shareholders.
Section
15. Inspectors. For
each meeting of the shareholders, the Board of Directors or the President may
appoint two inspectors to supervise the voting. If inspectors are so appointed,
all questions respecting the qualification of any vote, the validity of any
proxy and the acceptance or rejection of any vote shall be decided by such
inspectors. Before acting at any meeting, the inspectors shall take an oath to
execute their duties with strict impartiality and according to the best of their
ability. If any inspector shall fail to be present or shall decline to act, the
President shall appoint another inspector to act in his or her place. In case of
a tie vote by the inspectors on any question, the presiding officer shall decide
the issue.
ARTICLE
III - BOARD OF DIRECTORS
Section
1. General
Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the
Articles of Incorporation of the Corporation or these By-laws directed or
required to be exercised or done only by the shareholders.
Section
2. Number,
Election, Tenure and Qualifications. The number of directors
of the Corporation shall be not less than one (1) nor more than seven (7). The
exact number of directors shall be fixed by resolution adopted by a vote of a
majority of the then authorized number of directors; provided that no decrease
in the number of directors shall have the effect of shortening the term of any
then incumbent director. At each annual meeting of shareholders, the
shareholders shall elect directors to hold office until the next succeeding
annual meeting. Each director shall hold office until his or her term of office
expires and until such director’s successor is elected and qualifies, unless
such director sooner dies, resigns or is removed by the shareholders at any
annual or special meeting. It shall not be necessary for directors to be
shareholders or residents of the State of Florida. All directors shall be
natural persons who are eighteen (18) years of age or older.
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Section
3. Annual
Meeting. Promptly after each annual meeting of shareholders,
the Board of Directors shall hold its annual meeting for the purpose of the
election of officers and the transaction of such other business as may come
before the meeting. If such meeting is held at the same place as and immediately
following such annual meeting of shareholders and if a majority of the directors
are present at such place and time, no prior notice of such meeting shall be
required to be given to the directors.
Section
4. Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall be determined from
time to time by the Board of Directors.
Section
5. Special
Meetings. Special meetings of the Board of Directors may be
called by the President or any two (2) directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
for holding any special meetings of the Board of Directors called by such person
or persons. If no such designation is made, the place of meeting shall be the
principal office of the Corporation in the State of Florida.
Section
6. Notice
of Meeting. Whenever notice of a meeting is required, written
notice stating the date, time and place of the meeting shall be delivered at
least two (2) days prior thereto to each director, either personally, or by
first-class United States mail, facsimile or other form of electronic
communication, or by private mail carriers handling nationwide mail services, to
the director’s business address. If notice is given by first-class United States
mail, such notice shall be deemed to be delivered five (5) days after deposited
in the United States mail so addressed with postage thereon prepaid or when
received, if such date is earlier. If notice is given by facsimile transmission
or other form of electronic communication or by private mail carriers handling
nationwide mail services, such notice shall be deemed to be delivered when
received by the director. Any director may waive notice of any meeting, either
before, at or after such meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened and so states at
the beginning of the meeting or promptly upon arrival at the
meeting.
Section
7. Notice
of Adjourned Meeting. If a meeting of the Board of Directors
is adjourned to a different date, time or place, notice of such adjourned
meeting shall be given to the directors who were not present at the time of the
adjournment and, unless the time and place of the adjourned meeting were
announced at the time of the adjournment, to the other directors.
Section
8. Quorum. A
majority of the total number of directors as determined from time to time to
comprise the Board of Directors shall constitute a quorum.
Section
9. Adjournment; Quorum for
Adjourned Meeting. If less than a majority of the total number
of directors are present at a meeting, a majority of the directors so present
may adjourn the meeting from time to time without further notice. At any
adjourned meeting at which a quorum shall be present, any business may be
transacted that might have been transacted at the meeting as originally
noticed.
Section
10. Manner
of Acting. If a quorum is present when a vote is taken, the
act of a majority of the directors present at the meeting shall be the act of
the Board of Directors unless otherwise provided in the Articles of
Incorporation of the Corporation.
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Section
11. Removal. Any
director may be removed by the shareholders, with or without cause, at any
meeting of the shareholders called expressly for that purpose. Any such removal
shall be without prejudice to the contract rights, if any, of the person
removed.
Section
12. Vacancies. Any
vacancy occurring on the Board of Directors, including any vacancy created by
reason of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, though less than a
quorum of the Board of Directors, or by the shareholders, unless otherwise
provided in the Articles of Incorporation of the Corporation. The term of a
director elected to fill a vacancy shall expire at the next following annual
meeting of shareholders, and the person elected shall hold office until such
time and until such director’s successor is elected and qualifies, unless such
director sooner dies, resigns or is removed by the shareholders at any annual or
special meeting.
Section
13. Compensation. By
resolution of the Board of Directors, the directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors, and may be paid
a fixed sum for attendance at each meeting of the Board of Directors, a stated
salary as directors and/or such other reasonable compensation as may be
determined by the Board from time to time. No payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section
14. 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 such
director objects at the beginning of the meeting (or promptly upon his or her
arrival) to the holding of the meeting or the transacting of specified business
at the meeting or such director votes against such action or abstains from
voting in respect of such matter.
Section
15. Informal Action by
Board. Any action required or permitted to be taken by any
provisions of law, the Articles of Incorporation of the Corporation or these
By-laws at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if each and every member of the Board or of such
committee, as the case may be, signs a written consent thereto and such written
consent is filed in the minutes of the proceedings of the Board or such
committee, as the case may be. Action taken under this Section is effective when
the last director signs the consent, unless the consent specifies a different
effective date, in which case it is effective on the date so
specified.
Section
16. Meeting
by Telephone, Etc. Directors or the members of any committee
thereof shall be deemed present at a meeting of the Board of Directors or of any
such committee, as the case may be, if the meeting is conducted using a
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other at the same
time.
ARTICLE
IV - OFFICERS
Section
1. Number. The
officers of the Corporation shall consist of a President, a Vice President, a
Secretary and a Treasurer, each of whom shall be appointed by the Board of
Directors. The Board of Directors may also appoint one or more
assistant secretaries and assistant treasurers and such other officers as the
Board of Directors shall deem appropriate. The same individual may
simultaneously hold more than one office in the Corporation.
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Section
2. Appointment and Term of
Office. The officers of the Corporation shall be appointed
annually by the Board of Directors at its annual meeting. If the appointment of
officers shall not be made at such meeting, such appointment shall be made as
soon thereafter as is convenient. Each officer shall hold office until such
officer’s successor is appointed and qualifies, unless such officer sooner dies,
resigns or is removed by the Board. The appointment of an officer does not
itself create contract rights. The failure to elect a President, a Vice
President, a Secretary or a Treasurer shall not affect the existence of the
Corporation.
Section
3. Resignation. An
officer may resign at any time by delivering notice to the Corporation. A
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date. An officer’s resignation shall not affect the
Corporation’s contract rights, if any, with the officer.
Section
4. Removal. The
Board of Directors may remove any officer at any time with or without cause. An
officer’s removal shall not affect the officer’s contract rights, if any, with
the Corporation.
Section
5. Vacancies. A
vacancy in any office because of death, resignation, removal, disqualification
or otherwise may be filled by the Board of Directors for the unexpired portion
of the term.
Section
6. Duties
of Officers. All officers of the Corporation shall have such
authority and perform such duties in the management and operation of the
Corporation as shall be prescribed in the resolutions of the Board of Directors
designating and choosing such officers and prescribing their authority and
duties, and shall have such additional authority and duties as are incident to
their office except to the extent that such resolutions may be inconsistent
therewith. The Secretary or an assistant secretary of the Corporation
shall record all of the proceedings of all meetings and actions in writing of
shareholders, the Board, and committees of the Board, and shall exercise such
additional authority and perform such additional duties as the Board of
Directors shall assign. In the absence of the Secretary or an
assistant secretary, the chairman of the meeting shall appoint a secretary to
record the proceedings of the meeting.
Section
7. Salaries. The
salaries of the officers shall be fixed from time to time by the Board of
Directors, and no officer shall be prevented from receiving a salary by reason
of the fact that the officer is also a director of the Corporation.
Section
8. Delegation of
Duties. In the absence or disability of any officer of the
Corporation, or for any other reason deemed sufficient by the Board of
Directors, the Board may delegate the powers or duties of such officer to any
other officer or to any other director for the time being.
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ARTICLE
V - EXECUTIVE AND OTHER COMMITTEES
Section
1. Creation
of Committees. The Board of Directors may designate an
Executive Committee and one or more other committees. Each committee so
designated shall consist of two (2) or more of the directors of the
Corporation.
Section
2. Executive
Committee. The Executive Committee, if there shall be one,
shall consult with and advise the officers of the Corporation in the management
of its business. It shall have, and may exercise, except to the extent otherwise
provided in the resolution of the Board of Directors creating such Executive
Committee, such powers of the Board of Directors as can be lawfully delegated by
the Board. Included solely for information purposes, the following is a list of
the actions that, under Florida law in effect at the time of the adoption of
these By-laws, may not be delegated to a committee, but the list shall be deemed
automatically revised without further action by the Board of Directors or the
shareholders of this Corporation upon and to the extent of any amendment to such
law: (a) approve or recommend to shareholders actions or proposals required by
law to be approved by shareholders; (b) fill vacancies on the Board of Directors
or any committee of the Board; (c) adopt, amend or repeal these By-laws; (d)
authorize or approve the reacquisition of shares unless pursuant to a general
formula or method specified by the Board of Directors; or (e) authorize or
approve the issuance or sale of shares, or any contract to sell shares, or
designate the terms of a series or class of shares.
Section
3. Other
Committees. Such other committees, to the extent provided in
the resolution or resolutions creating them, shall have such functions and may
exercise such powers of the Board of Directors as can be lawfully delegated by
the Board. Notwithstanding the foregoing, no committee shall have the authority
to take any action listed in subsections (a) through (e), inclusive, of Section
2 of this Article V.
Section
4. Removal
or Dissolution. Any committee of the Board of Directors may be
dissolved by the Board at any meeting; and any member of such committee may be
removed by the Board of Directors with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so
removed.
Section
5. Vacancies on
Committees. Vacancies on any committee of the Board of
Directors shall be filled by the Board of Directors at any meeting.
Section
6. Meetings
of Committees. Regular meetings of any committee of the Board
of Directors may be held without notice at such time and at such place as shall
from time to time be determined by such committee. Special meetings of any such
committee may be called by any member thereof upon two (2) days notice of the
date, time and place of the meeting given to each of the other members of such
committee, or on such shorter notice as may be agreed to in writing by each of
the other members of such committee. Notice shall be given either personally or
in the manner provided in Section 6 of Article III of these By-laws (pertaining
to notice for directors’ meetings).
Section
7. Absence
of Committee Members. The Board of Directors may designate one
or more directors as alternate members of any committee of the Board of
Directors, who may replace at any meeting of such committee any member not able
to attend.
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Section
8. Quorum
of Committees. At all meetings of committees of the Board of
Directors, a majority of the total number of members of the committee as
determined from time to time shall constitute a quorum for the transaction of
business.
Section
9. Manner
of Acting of Committees. If a quorum is present when a vote is
taken, the act of a majority of the members of any committee of the Board of
Directors present at the meeting shall be the act of such
committee.
Section
10. Minutes
of Committees. Each committee of the Board of Directors shall
keep regular minutes of its proceedings and report the same to the Board of
Directors when requested.
Section
11. Compensation. Members
of any committee of the Board of Directors may be paid compensation in
accordance with the provisions of Section 13 of Article III of these By-laws
(pertaining to compensation of directors).
Section
12. Informal
Action. Any committee of the Board of Directors may take such
informal action and hold such informal meetings as allowed by the provisions of
Sections 15 and 16 of Article III of these By-laws.
ARTICLE
VI - INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section
1. General.
(a) To
the fullest extent permitted by law and consistent with the principles set forth
in Section 1(c) below, the Corporation shall indemnify any person who is or was
a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or other type of proceeding (other than an action by or
in the right of the Corporation), whether civil, criminal, administrative,
investigative or otherwise, and whether formal or informal, by reason of the
fact that such person is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer, trustee
or fiduciary of another corporation, partnership, joint venture, trust
(including, without limitation, an employee benefit trust), or other
enterprise.
(b) To
the fullest extent permitted by law and consistent with the principles set forth
in Section 1(c) below, the Corporation shall be entitled but shall not be
obligated to indemnify any person who is or was a party, or is threatened to be
made a party, to any threatened, pending or completed action, suit or other type
of proceeding (other than an action by or in the right of the Corporation),
whether civil, criminal, administrative, investigative or otherwise, and whether
formal or informal, by reason of the fact that such person is or was an employee
or agent of the Corporation or is or was serving at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
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(c) Any
person for whom indemnification is required or authorized under Section 1(a) or
Section 1(b) above shall be indemnified against all liabilities, judgments,
amounts paid in settlement, penalties, fines (including an excise tax assessed
with respect to any employee benefit plan) and expenses (including attorneys’
fees, paralegals’ fees and court costs) actually and reasonably incurred in
connection with any such action, suit or other proceeding, including any appeal
thereof. Indemnification shall be available only if the person to be indemnified
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 action or proceeding, had no reasonable cause to believe such person’s
conduct was unlawful. The termination of any such action, suit or other
proceeding by judgment, order, settlement or conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner that such person reasonably
believed to be in, or not opposed to, the best interests of the Corporation or,
with respect to any criminal action or proceeding, had reasonable cause to
believe that such person’s conduct was unlawful.
Section
2. Actions
by or in the Right of the Corporation.
(a) To
the fullest extent permitted by law and consistent with the principles set forth
in Section 2(c) below, the Corporation shall indemnify any person who is or was
a party, or is threatened to be made a party, to any threatened, pending or
completed action, suit or other type of proceeding (as further described in
Section 1 of this Article VI) by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, trustee or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise.
(b) To
the fullest extent permitted by law and consistent with the principles set forth
in Section 2(c) below, the Corporation shall be entitled but shall not be
obligated to indemnify any person who is or was a party, or is threatened to be
made a party, to any threatened, pending or completed action, suit or other type
of proceeding (as further described in Section 1 of this Article VI) by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was an employee or agent of the Corporation or is or
was serving at the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise.
(c) Any
person for whom indemnification is required or authorized under Section 2(a) or
Section 2(b) above shall be indemnified against expenses (including attorneys’
fees, paralegals’ fees and court costs) and amounts paid in settlement not
exceeding, in the judgment of the Board of Directors, the estimated expenses of
litigating the action, suit or other proceeding to conclusion, that are actually
and reasonably incurred in connection with the defense or settlement of such
action, suit or other proceeding, including any appeal thereof. Indemnification
shall be available only if the person to be indemnified 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. Notwithstanding the foregoing, no
indemnification shall be made under this Section 2 in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
unless, and only to the extent that, the court in which such action, suit or
other proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnification for such expenses that such court shall
deem proper.
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Section
3. Determination that
Indemnification Is Proper. Indemnification pursuant to Section
1 or Section 2 of this Article VI, unless made under the provisions of Section 6
of this Article VI or unless otherwise made pursuant to a determination by a
court, shall be made by the Corporation only as authorized in the specific case
upon a determination that the indemnification is proper in the circumstances
because the indemnified person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VI. Such determination shall be
made under one of the following procedures: (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to the
action, suit or other proceeding to which the indemnification relates; (b) if
such a quorum is not obtainable or, even if obtainable, by majority vote of a
committee duly designated by the Board of Directors (the designation being one
in which directors who are parties may participate) consisting solely of two or
more directors not at the time parties to such action, suit or other proceeding;
(c) by independent legal counsel (i) selected by the Board of Directors in
accordance with the requirements of subsection (a) or by a committee designated
under subsection (b) or (ii) if a quorum of the directors cannot be obtained and
a committee cannot be designated, selected by majority vote of the full Board of
Directors (the vote being one in which directors who are parties may
participate); or (d) by the shareholders by a majority vote of a quorum
consisting of shareholders who were not parties to such action, suit or other
proceeding or, if no such quorum is obtainable, by a majority vote of
shareholders who were not parties to such action, suit or other
proceeding.
Section
4. Evaluation and
Authorization. Evaluation of the reasonableness of expenses
and authorization of indemnification shall be made in the same manner as is
prescribed in Section 3 of this Article VI for the determination that
indemnification is permissible; provided, however, that if the determination as
to whether indemnification is permissible is made by independent legal counsel,
the persons who selected such independent legal counsel shall be responsible for
evaluating the reasonableness of expenses and may authorize
indemnification.
Section
5. Prepayment of
Expenses. Expenses (including attorneys’ fees, paralegals’
fees and court costs) incurred by a director or officer in defending a civil or
criminal action, suit or other proceeding referred to in Section 1 or Section 2
of this Article VI shall be paid by the Corporation in advance of the final
disposition thereof, but only upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if such person is ultimately found
not to be entitled to indemnification by the Corporation pursuant to this
Article VI.
Section
6. Obligation to
Indemnify. To the extent that a director or officer has been
successful on the merits or otherwise in defense of any action, suit or other
proceeding referred to in Section 1 or Section 2 of this Article VI, or in the
defense of any claim, issue or matter therein, such person shall, upon
application, be indemnified against expenses (including attorneys’ fees,
paralegals’ fees and court costs) actually and reasonably incurred by such
person in connection therewith.
Section
7. Nonexclusivity and
Limitations. The indemnification and advancement of expenses
provided pursuant to this Article VI shall not be deemed exclusive of any other
rights to which a person may be entitled under any law, By-law, agreement, vote
of shareholders or disinterested directors, or otherwise, both as to action in
such person’s official capacity and as to action in any other capacity while
holding office with the Corporation. The Board of Directors may, at
any time, approve indemnification of or advancement of expenses to any other
person that the Corporation has the power by law to indemnify. In all cases not
specifically provided for in this Article VI, indemnification or advancement of
expenses shall not be made to the extent that such indemnification or
advancement of expenses is expressly prohibited by law.
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Section
8. Continuation of
Indemnification Right.
(a) The
right of indemnification and advancement of expenses under this Article VI for
directors and officers shall be a contract right inuring to the benefit of the
directors and officers entitled to be indemnified hereunder. No amendment or
repeal of this Article VI shall adversely affect any right of such director or
officer existing at the time of such amendment or repeal. Indemnification and
advancement of expenses as provided for in this Article VI shall continue as to
a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such person.
(b)
Unless expressly otherwise provided when authorized or ratified by this
Corporation, indemnification and advancement of expenses that have been
specifically authorized and approved by the Corporation for a particular
employee or agent shall continue as to a person who has ceased to be an employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section
9. “Corporation”
Defined. For purposes of this Article VI, the term
“corporation” includes, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director or
officer of a constituent corporation, or is or was serving at the request of a
constituent corporation as a director, officer, employee, agent, trustee or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise, is in the same position under this Article VI with respect to the
resulting or surviving corporation as such person would have been with respect
to such constituent corporation if its separate existence had
continued.
Section
10. Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or who is or
was serving at the request of the Corporation as a director, officer, trustee,
fiduciary, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. Such insurance may cover any liability 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 is obligated
to or would have the power to indemnify such person against the liability under
Section 1 or Section 2 of this Article VI.
ARTICLE
VII - INTERESTED PARTIES
Section
1. General. No
contract or other transaction between the Corporation and any one or more of its
directors or any other corporation, firm, association or entity in which one or
more of its directors are directors or officers or are financially interested
shall be either void or voidable because of such relationship or interest,
because such director or directors are present at the meeting of the Board of
Directors or of a committee thereof that authorizes, approves or ratifies such
contract or transaction, or because such director’s or directors’ votes are
counted for such purpose, as long as one or more of the following requirements
is satisfied: (a) the fact of such relationship or interest is disclosed or
known to the Board of Directors or committee that authorizes, approves or
ratifies the contract or transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of such interested directors; (b)
the fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote on the matter, and they authorize, approve or
ratify such contract or transaction by vote or written consent; or (c) the
contract or transaction is fair and reasonable as to the Corporation at the time
it is authorized by the Board of Directors, a committee thereof or the
shareholders.
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Section
2. Approval
by Board of Directors. For purposes of Section 1(a) of this
Article VII, a conflict of interest transaction shall be authorized, approved or
ratified if it receives the vote of a majority of the directors on the Board of
Directors, or on the committee, who have no relationship or interest in the
transaction; provided, however, that such a transaction may not be authorized,
approved or ratified by a single director. If a majority of the
directors who have no such relationship or interest in the transaction vote to
authorize, approve, or ratify the transaction, a quorum is present for the
purpose of taking action under this Section 3. The presence of, or
vote cast by, a director with a relationship or interest in the transaction does
not affect the validity of any action taken under this Section if the
transaction is otherwise authorized, approved or ratified as provided in this
Section. Such presence or vote of a director with a relationship or
interest in the transaction described in Section 1 of this Article VII shall be
counted in determining whether the transaction is approved under other sections
of these By-laws and applicable law.
Section
3. Approval
by Shareholders. For purposes of Section 1(b) of this Article
VII, a conflict of interest transaction shall be authorized, approved or
ratified if it receives the vote of a majority of the shares entitled to be
counted under this Section 3. Shares owned by or voted under the control of a
director who has a relationship or interest in the transaction described in
Section 1 of this Article VII may not be counted in a vote of shareholders to
determine whether to authorize, approve or ratify a conflict of interest
transaction under Section 1(b) of this Article VII. The vote of the shares owned
by or voted under the control of a director who has a relationship or interest
in the transaction described in Section 1 of this Article VII shall be counted,
however, in determining whether the transaction is approved under other sections
of these By-laws and applicable law. A majority of those shares that would be
entitled, if present, to be counted in a vote on the transaction under this
Section 3 shall constitute a quorum for the purpose of taking action under this
Section 3.
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ARTICLE
VIII - CERTIFICATES OF STOCK
Section
1. Certificates for
Shares. Shares may but need not be represented by
certificates. The rights and obligations of shareholders shall be identical
whether or not their shares are represented by certificates. If shares are
represented by certificates, each certificate shall be in such form as the Board
of Directors may from time to time prescribe and shall be signed (either
manually or in facsimile) by the President (and may be signed (either manually
or in facsimile) and by the Secretary or an assistant secretary and/or sealed
with the seal of the Corporation or its facsimile). Each certificate shall set
forth the holder’s name and the number of shares represented by the certificate,
and shall state such other matters as may be required by law. The certificates
shall be numbered and entered on the books of the Corporation as they are
issued. If shares are not represented by certificates, then, within a reasonable
time after issue or transfer of shares without certificates, the Corporation
shall send the shareholder a written statement in such form as the Board of
Directors may from time to time prescribe, certifying as to the number of shares
owned by the shareholder and as to such other information as would have been
required to be on certificates for such shares. If and to the extent the
Corporation is authorized to issue shares of more than one class or more than
one series of any class, every certificate representing shares shall set forth
or fairly summarize upon the face or back of the certificate, or shall state
that the Corporation will furnish to any shareholder upon request and without
charge a full statement of: (a) the designations, relative rights, preferences
and limitations of the shares of each class or series authorized to be issued;
(b) the variations in rights, preferences and limitations between the shares of
each such series, if the Corporation is authorized to issue any preferred or
special class in series insofar as the same have been fixed and determined; and
(c) the authority of the Board of Directors to fix and determine the variations,
relative rights and preferences of future series.
Section
2. Signatures of Past
Officers. If the person who signed (either manually or in
facsimile) a share certificate no longer holds office when the certificate is
issued, the certificate shall nevertheless be valid.
Section
3. Transfer
Agents and Registrars. The Board of Directors may, in its
discretion, appoint responsible banks or trust companies in such city or cities
as the Board may deem advisable from time to time to act as transfer agents and
registrars of the stock of the Corporation. When such appointments shall have
been made, no stock certificate shall be valid until countersigned by one of
such transfer agents and registered by one of such registrars.
Section
4. Transfer
of Shares. Transfers of shares of the Corporation shall be
made upon its books by the holder of the shares in person or by the holder’s
lawfully constituted representative, upon surrender of the certificate of stock
for cancellation if such shares are represented by a certificate of stock or by
delivery to the Corporation of such evidence of transfer as may be required by
the Corporation if such shares are not represented by certificates. The person
in whose name shares stand on the books of the Corporation shall be deemed by
the Corporation to be the owner thereof for all purposes; and the Corporation
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of the State of
Florida.
Section
5. Lost
Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation and alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing such
issue of a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or the owner’s
legal representative, to pay a reasonable charge for issuing the new
certificate, to advertise the matter in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
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ARTICLE
IX - RECORD DATE
Section
1. Record
Date for Shareholder Actions. The Board of Directors is
authorized from time to time to fix in advance a date as the record date for the
determination of the shareholders entitled to notice of and to vote at any
meeting of the shareholders and any adjournment thereof (unless a new record
date must be established by law for such adjourned meeting), or of the
shareholders entitled to give such consent or take such action, as the case may
be. In no event may a record date so fixed by the Board of Directors precede the
date on which the resolution establishing such record date is adopted by the
Board of Directors; and such record date may not be more than seventy (70) nor
less than ten (10) days before the date of any meeting of the shareholders,
before a date in connection with the obtaining of the consent of shareholders
for any purpose, or before the date of any other action requiring a
determination of the shareholders. Only those shareholders listed as
shareholders of record as of the close of business on the date so fixed as the
record date shall be entitled to notice of and to vote at such meeting and any
adjournment thereof, or to exercise such rights or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid. If the Board of
Directors fails to establish a record date as provided herein, the record date
shall be deemed to be the date ten (10) days prior to the date of the
shareholders’ meeting.
Section
2. Record
Date for Dividend and Other Distributions. The Board of
Directors is authorized from time to time to fix in advance a date as the record
date for the determination of the shareholders entitled to receive a dividend or
other distribution. Only those shareholders listed as shareholders of record as
of the close of business on the date so fixed as the record date shall be
entitled to receive the dividend or other distribution, as the case maybe,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. If the Board of Directors fails to
establish a record date as provided herein, the record date shall be deemed to
be the date of authorization of the dividend or other distribution.
ARTICLE
X - DIVIDENDS
The Board
of Directors may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares of capital stock in the manner and upon the
terms and conditions provided by the Articles of Incorporation of the
Corporation and by law. Subject to the provisions of the Articles of
Incorporation of the Corporation and law, dividends may be paid in cash or
property, including shares of stock or other securities of the
Corporation.
ARTICLE
XI - FISCAL YEAR
The
fiscal year of the Corporation shall be the period selected by the Board of
Directors as the fiscal year. Unless and until changed by the Board of
Directors, the fiscal year of the Corporation shall end on December 31 of each
year.
ARTICLE
XII - SEAL
The
corporate seal shall have the name of the Corporation and the word “SEAL”
inscribed thereon. It may be a facsimile, engraved, printed or
impressioned.
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ARTICLE
XIII - STOCK IN OTHER CORPORATIONS
Shares of
stock in other corporations held by the Corporation shall be voted by such
officer or officers or other agent of the Corporation as the Board of Directors
shall from time to time designate for the purpose or by a proxy thereunto duly
authorized by said Board.
ARTICLE
XIV - AMENDMENTS
These
By-laws may be altered, amended or repealed and new By-laws may be adopted
either by the Board of Directors or by the holders of a majority of the issued
and outstanding shares of stock of the Corporation entitled to vote; provided,
however, that the Board of Directors may not alter, amend or repeal any By-law
if (a) the Articles of Incorporation of the Corporation or the Florida Business
Corporation Act reserve the power to alter, amend or repeal any By-law
exclusively to the shareholders; or (b) if the shareholders, in amending or
repealing any By-law, expressly provide that the By-law is not subject to
amendment or repeal by the Board.
ARTICLE
XV - PRECEDENCE OF LAW AND ARTICLES OF INCORPORATION
Any
provision of the Articles of Incorporation of this Corporation shall, subject to
law, control and take precedence over any provision of these By-laws
inconsistent therewith.
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