Attached files
file | filename |
---|---|
S-1 - LENDER TO LENDER FRANCHISE, INC | v198832_s1.htm |
EX-2.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex2-1.htm |
EX-3.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex3-1.htm |
EX-10.4 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-4.htm |
EX-10.6 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-6.htm |
EX-21.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex21-1.htm |
EX-10.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-1.htm |
EX-23.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex23-1.htm |
EX-14.1 - LENDER TO LENDER FRANCHISE, INC | v198832_ex14-1.htm |
EX-10.3 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-3.htm |
EX-10.5 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-5.htm |
EX-10.7 - LENDER TO LENDER FRANCHISE, INC | v198832_ex10-7.htm |
BY-LAWS
OF
LENDER
TO LENDER FRANCHISE, INC.
a Florida
corporation
TABLE
OF CONTENTS
ARTICLE 1: OFFICES |
1
|
|
1.01
|
Principal
Office
|
1
|
1.02
|
Registered
Office
|
1
|
1.03
|
Other
Offices
|
1
|
ARTICLE 2: MEETINGS OF SHAREHOLDERS |
1
|
|
2.01
|
Annual
Meeting
|
1
|
2.02
|
Special
Meeting
|
1
|
2.03
|
Shareholders'
List for Meeting
|
2
|
2.04
|
Record
Date
|
2
|
2.05
|
Notice
of Meetings and Adjournment
|
3
|
2.06
|
Waiver
of Notice
|
4
|
ARTICLE 3: SHAREHOLDER VOTING |
4
|
|
3.01
|
Voting
Group Defined
|
4
|
3.02
|
Quorum
and Voting Requirements for Voting Groups
|
4
|
3.03
|
Action
by Single and Multiple Voting Groups
|
5
|
3.04
|
Shareholder
Quorum and Voting; Greater or Lesser Voting Requirements
|
5
|
3.05
|
Voting
for Directors; Cumulative Voting
|
5
|
3.06
|
Voting
Entitlement of Shares
|
6
|
3.07
|
Proxies
|
7
|
3.08
|
Shares
Held by Nominees
|
8
|
3.09
|
Corporation's
Acceptance of Votes
|
8
|
3.10
|
Action
by Shareholders Without Meeting
|
9
|
ARTICLE 4: BOARD OF DIRECTORS AND OFFICERS |
10
|
|
4.01
|
Qualifications
of Directors
|
10
|
4.02
|
Number
of Directors
|
10
|
4.03
|
Election
of Directors; Terms of Directors Generally
|
10
|
4.04
|
Staggered
Terms for Directors
|
10
|
4.05
|
Vacancy
on Board
|
11
|
4.06
|
Compensation
of Directors
|
11
|
4.07
|
Meetings
|
11
|
4.08
|
Action
by Directors Without a Meeting
|
11
|
4.09
|
Notice
of Meetings
|
12
|
4.10
|
Waiver
of Notice
|
12
|
4.11
|
Quorum
and Voting
|
12
|
4.12
|
Committees
|
12
|
4.13
|
Loans
to Officers, Directors, and Employees; Guaranty of
Obligations
|
13
|
4.14
|
Required
Officers
|
13
|
4.15
|
Duties
of Officers
|
14
|
4.16
|
Resignation
and Removal of Officers
|
14
|
4.17
|
Contract
Rights of Officers
|
14
|
4.18
|
General
Standards for Directors
|
14
|
4.19
|
Director
Conflicts of Interest
|
15
|
4.20
|
Resignation
of Directors
|
16
|
ARTICLE 5: INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS |
16
|
|
ARTICLE 6: REGISTERED OFFICE AND REGISTERED AGENT |
20
|
i
ARTICLE 7: SHARES, OPTIONS, DIVIDENDS AND DISTRIBUTIONS |
20
|
|
7.01
|
Authorized
Shares
|
20
|
7.02
|
Terms
of Class or Series Determined by Board of Directors
|
21
|
7.03
|
Issued
and Outstanding Shares
|
21
|
7.04
|
Issuance
of Shares.
|
22
|
7.05
|
Form
and Content of Certificates
|
22
|
7.06
|
Shares
Without Certificates
|
23
|
7.07
|
Restriction
on Transfer of Shares and Other Securities
|
23
|
7.08
|
Shareholder's
Pre-emptive Rights
|
23
|
7.09
|
Corporation's
Acquisition of its Own Shares.
|
24
|
7.10
|
Share
Options
|
24
|
7.11
|
Terms
and Conditions of Stock Rights and Options
|
24
|
7.12
|
Share
Dividends
|
24
|
7.13
|
Distributions
to Shareholders
|
25
|
ARTICLE 8: AMENDMENT OF ARTICLES AND BYLAWS |
26
|
|
8.01
|
Authority
to Amend the Articles of Incorporation
|
26
|
8.02
|
Amendment
by Board of Directors
|
26
|
8.03
|
Amendment
of Bylaws by Board of Directors
|
27
|
8.04
|
Bylaw
Increasing Quorum or Voting Requirements for Directors
|
27
|
ARTICLE 9: RECORDS AND REPORTS |
28
|
|
9.01
|
Corporate
Records
|
28
|
9.02
|
Financial
Statements for Shareholders
|
28
|
9.03
|
Other
Reports to Shareholders
|
29
|
9.04
|
Annual
Report for Department of State
|
29
|
ARTICLE 10: MISCELLANEOUS |
30
|
|
10.01
|
Definition
of the "Act"
|
30
|
10.02
|
Application
of Florida Law
|
30
|
10.03
|
Fiscal
Year
|
30
|
10.04
|
Conflicts
with Articles of Incorporation
|
30
|
ii
ARTICLE 1.
|
OFFICES
|
1.01
Principal Office
The
principal office of the corporation in the State of Florida shall be established
at such places as the board of directors from time to time
determine.
1.02
Registered Office
The
registered office of the corporation in the State of Florida shall be at the
office of its registered agent as stated in the Articles of Incorporation of the
corporation (the “Articles of Incorporation” or as the board of directors shall
from time to time determine.
1.03
Other Offices
The
corporation may have additional offices at such other places, either within or
without the State of Florida, as the board of directors may from time to time
determine or the business of the corporation may require.
ARTICLE 2.
|
MEETINGS OF
SHAREHOLDERS
|
2.01
Annual Meeting
(1) The
corporation shall hold a meeting of shareholders annually, for the election of
directors and for the transaction of any proper business, at a time stated in or
fixed in accordance with a resolution of the board of directors.
(2) Annual
shareholders' meeting may be held in or out of the State of Florida at a place
stated in or fixed in accordance with a resolution by the board of directors or,
when not inconsistent with the board of directors' resolution stated in the
notice of the annual meeting. If no place is stated in or fixed in
accordance with these Bylaws, or stated in the notice of the annual meeting,
annual meetings shall be held at the corporation's principal
office.
(3) The
failure to hold the annual meeting at the time stated in or fixed in accordance
with these Bylaws or pursuant to the Act does not affect the validity of any
corporate action and shall not work a forfeiture of or dissolution of the
corporation.
2.02 Special
Meeting
(1) The
corporation shall hold a special meeting of shareholders (a) on call of its
board of directors or the person or persons authorized to do so by the board of
directors; or (b) if the holders of not less than 10% of all votes entitled to
be cast on any issue proposed to be considered at the proposed special meeting
sign, date and deliver to the corporation's secretary one or more written
demands for the meeting describing the purpose or purposes for which it is to be
held.
1
(2) Special
shareholders' meetings may be held in or out of the State of Florida at a place
stated in or fixed in accordance with a resolution of the board of directors,
or, when not inconsistent with the board of directors' resolution, in the notice
of the special meeting. If no place is stated in or fixed in
accordance with these Bylaws or in the notice of the special meeting, special
meetings shall be held at the corporation's principal office.
(3) Only
business within the purpose or purposes described in the special meeting notice
may be conducted at a special shareholders' meeting.
2.03 Shareholders'
List for Meeting
(1) After
fixing a record date for a meeting, a corporation shall prepare a list of the
names of all its shareholders who are entitled to notice of a shareholders'
meeting, in accordance with the Florida Business Corporation Act (the "Act"), or
arranged by voting group, with the address of, and the number and class and
series, if any, of shares held by, each.
(2) The
shareholders' list must be available for inspection by any shareholder for a
period of ten days prior to the meeting or such shorter time as exists between
the record date and the meeting and continuing through the meeting at the
corporation's principal office, at a place identified in the meeting notice in
the city where the meeting will be held, or at the office of the corporation's
transfer agent or registrar. A shareholder or his agent or attorney
is entitled on written demand to inspect the list (subject to the requirements
of Section 607.1602(3) of the Act), during regular business hours and at his
expense, during the period it is available for inspection.
(3) The
corporation shall make the shareholders' list available at the meeting, and any
shareholder or his agent or attorney is entitled to inspect the list at any time
during the meeting or any adjournment.
2.04 Record
Date
(1) The
board of directors may set a record date for purposes of determining the
shareholders entitled to notice of and to vote at a shareholders' meeting;
however, in no event may a record date fixed by the board of directors be a date
preceding the date upon which the resolution fixing the record date is
adopted.
(2) Unless
otherwise fixed by the board of directors, the record date for determining
shareholders entitled to demand a special meeting is the date the first
shareholder delivers his demand to the corporation. In the event that
the board of directors sets the record date for a special meeting of
shareholders, it shall not be a date preceding the date upon which the
corporation receives the first demand from a shareholder requesting a special
meeting.
(3) If
no prior action is required by the board of directors pursuant to the Act, and,
unless otherwise fixed by the board of directors, the record date for
determining shareholders entitled to take action without a meeting is the date
the first signed written consent is delivered to the corporation under Section
607.0704 of the Act. If prior action is required by the board of
directors pursuant to the Act, the record date for determining shareholders
entitled to take action without a meeting is at the close of business on the day
on which the board of directors adopts the resolution taking such prior
action.
2
(4) Unless
otherwise fixed by the board of directors, the record date for determining
shareholders entitled to notice of and to vote at an annual or special
shareholders' meeting is the close of business on the day before the first
notice is delivered to shareholders.
(5) A
record date may not be more than 70 days before the meeting or action requiring
a determination of shareholders.
(6) A
determination of shareholders entitled to notice of or to vote at a
shareholders' meeting is effective for any adjournment of the meeting unless the
board of directors fixes a new record date, which it must do if the meeting is
adjourned to a date more than one 120 days after the date fixed for the original
meeting.
2.05 Notice
of Meetings and Adjournment
(1) The
corporation shall notify shareholders of the date, time and place of each annual
and special shareholders' meeting no fewer than 10 or more than 60 days before
the meeting date. Unless the Act requires otherwise, the corporation
is required to give notice only to shareholders entitled to vote at the
meeting. Notice shall be given in the manner provided in Section
607.0141 of the Act, by or at the direction of the president, the secretary, of
the officer or persons calling the meeting. If the notice is mailed
at least 30 days before the date of the meeting, it may be done by a class of
United States mail other than first class. Notwithstanding Section
607.0141, if mailed, such notice shall be deemed to be delivered when deposited
in the United States mail addressed to the shareholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
(2) Unless
the Act or the Articles of Incorporation requires otherwise, notice of an annual
meeting need not include a description of the purpose or purposes for which the
meeting is called.
(3) Notice
of a special meeting must include a description of the purpose or purposes for
which the meeting is called.
(4) If
an annual or special shareholders meeting is adjourned to a different date,
time, or place, notice need not be given of the new date, time, or place if the
new date, time or place is announced at the meeting before adjournment is taken,
and any business may be transacted at the adjourned meeting that might have been
transacted on the original date of the meeting. If a new record date
is or must be fixed under Section 607.0707 of the Act, however, notice of the
adjourned meeting must be given under this section to persons who are
shareholders as of the new record date who are entitled to notice of the
meeting.
3
(5) Notwithstanding
the foregoing, no notice of a shareholders' meeting need be given
if: (a) an annual report and proxy statements for two consecutive
annual meetings of shareholders, or (b) all, and at least two checks in payment
of dividends or interest on securities during a 12-month period, have been sent
by first-class United States mail, addressed to the shareholder at his address
as it appears on the share transfer books of the corporation, and returned
undeliverable. The obligation of the corporation to give notice of a
shareholders' meeting to any such shareholder shall be reinstated once the
corporation has received a new address for such shareholder for entry on its
share transfer books.
2.06 Waiver
of Notice
(1) A
shareholder may waive any notice required by the Act, the Articles of
Incorporation, or Bylaws before or after the date and time stated in the
notice. The waiver must be in writing, be signed by the shareholder
entitled to the notice, and be delivered to the corporation for inclusion in the
minutes or filing with the corporate records. Neither the business to
be transacted at nor the purpose of any regular or special meeting of the
shareholders need be specified in any written waiver of notice.
(2) A
shareholder's attendance at a meeting: (a) Waives objection to lack
of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting; or (b) waives objection to consideration of a particular matter
at the meeting that is not within the purpose or purposes described in the
meeting notice, unless the shareholder objects to considering the matter when it
is presented.
ARTICLE 3.
|
SHAREHOLDER
VOTING
|
3.01 Voting
Group Defined
A "voting
group" means all shares of one or more classes or series that under the Articles
of Incorporation or the Act are entitled to vote and be counted together
collectively on a matter at a meeting of shareholders. All shares
entitled by the Articles of Incorporation or the Act to vote generally on the
matter are for that purpose a single voting group.
3.02 Quorum
and Voting Requirements for Voting Groups
(1) Shares
entitled to vote as a separate voting group may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that
matter. Unless the Articles of Incorporation or the Act provides
otherwise, a majority of the votes entitled to be cast on the matter by the
voting group constitutes a quorum of that voting group for action on that
matter.
(2) 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.
(3) If
a quorum exists, action on a matter (other than the election of directors) by a
voting group is approved if the votes cast within the voting group favoring the
action exceed the votes cast opposing the action, unless the Articles of
Incorporation or the Act requires a greater number of affirmative
votes.
4
3.03 Action
by Single and Multiple Voting Groups
(1) If
the Articles of Incorporation or the Act provides for voting by a single voting
group on a matter, action on that matter is taken when voted upon by that voting
group as provided in Section 3.02 of these Bylaws.
(2) If
the Articles of Incorporation or the Act provides for voting by two or more
voting groups on a matter, action on that matter is taken only when voted upon
by each of those voting groups counted separately as provided in Section 3.02 of
these Bylaws. Action may be taken by one voting group on a matter
even though no action is taken by another voting group entitled to vote on the
matter.
3.04 Shareholder
Quorum and Voting; Greater or Lesser Voting Requirements
(1) A
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of shareholders, but in no event shall a
quorum consist of less than one-third of the shares entitled to
vote. When a specified item of business is required to be voted on by
a class or series of stock, a majority of the shares of such class or series
shall constitute a quorum for the transaction of such item of business by that
class or series.
(2) An
amendment to the Articles of Incorporation that adds, changes or deletes a
greater or lesser quorum or voting requirement must meet the same quorum
requirement and be adopted by the same vote and voting groups required to take
action under the quorum and voting requirements then in effect or proposed to be
adopted, whichever is greater.
(3) If
a quorum exists, action on a matter, other than the election of directors, is
approved if the votes cast by the holders of the shares represented at the
meeting and entitled to vote on the subject matter favoring the action exceed
the votes cast opposing the action, unless a greater number of affirmative votes
or voting by classes is required by the Act or the Articles of
Incorporation.
(4) After
a quorum has been established at a shareholders' meeting, the subsequent
withdrawal of shareholders, so as to reduce the number of shares entitled to
vote at the meeting below the number required for a quorum, shall not affect the
validity of any action taken at the meeting or any adjournment
thereof.
(5) The
Articles of Incorporation may provide for a greater voting requirement or a
greater or lesser quorum requirement for shareholders (or voting groups of
shareholders) than is provided by the Act, but in no event shall a quorum
consist of less than one-third of the shares entitled to vote.
3.05 Voting
for Directors; Cumulative Voting
(1) Directors
are elected by a plurality of the votes cast by the shares entitled to vote in
the election at a meeting at which a quorum is present.
5
(2) Each
shareholder who is entitled to vote at an election of directors has the right to
vote the number of shares owned by him for as many persons as there are
directors to be elected and for whose election he has a right to
vote. Shareholders do not have a right to cumulate their votes for
directors unless the Articles of Incorporation so provide.
3.06 Voting
Entitlement of Shares
(1) Unless
the Articles of Incorporation or the Act provides otherwise, each outstanding
share, regardless of class, is entitled to one vote on each matter submitted to
a vote at a meeting of shareholders. Only shares are entitled to
vote.
(2) The
shares of the corporation are not entitled to vote if they are owned, directly
or indirectly, by a second corporation, domestic or foreign, and the first
corporation owns, directly or indirectly, a majority of shares entitled to vote
for directors of the second corporation.
(3) This
section does not limit the power of the corporation to vote any shares,
including its own shares, held by it in a fiduciary capacity.
(4) Redeemable
shares are not entitled to vote on any matter, and shall not be deemed to be
outstanding, after notice of redemption is mailed to the holders thereof and a
sum sufficient to redeem such shares has been deposited with a bank, trust
company, or other financial institution upon an irrevocable obligation to pay
the holders the redemption price upon surrender of the shares.
(5) Shares
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent, or proxy as the Bylaws of the corporate shareholder may
prescribe or, in the absence of any applicable provision, by such person as the
board of directors of the corporate shareholder may designate. In the
absence of any such designation or in case of conflicting designation by the
corporate shareholder, the chairman of the board, the president, any vice
president, the secretary, and the treasurer of the corporate shareholder, in
that order, shall be presumed to be fully authorized to vote such
shares.
(6) 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.
(7) Shares
held by or under the control of a receiver, a trustee in bankruptcy proceedings,
or an assignee for the benefit of creditors may be voted by him without the
transfer thereof into his name.
(8) If
a share or shares stand of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in common, tenants
by the entirety, or otherwise, or if two or more persons have the same fiduciary
relationship respecting the same shares, unless the secretary of the corporation
is given notice to the contrary and is furnished with a copy of the instrument
or order appointing them or creating the relationship wherein it is so provided,
then acts with respect to voting have the following effect:
6
|
(a)
|
If
only one votes, in person or in proxy, his act binds
all;
|
|
(b)
|
If
more than one vote, in person or by proxy, the act of the majority so
voting binds all;
|
|
(c)
|
If
more than one vote, in person or by proxy, but the vote is evenly split on
any particular matter, each faction is entitled to vote the share or
shares in question proportionally;
|
|
(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 of this
subsection shall be a majority or a vote evenly split in
interest;
|
|
(e)
|
The
principles of this subsection shall apply, insofar as possible, to
execution of proxies, waivers, consents, or objections and for the purpose
of ascertaining the presence of a
quorum;
|
|
(f)
|
Subject
to Section 3.08 of these Bylaws, nothing herein contained shall prevent
trustees or other fiduciaries holding shares registered in the name of a
nominee from causing such shares to be voted by such nominee as the
trustee or other fiduciary may direct. Such nominee may vote
shares as directed by a trustee or their fiduciary without the necessity
of transferring the shares to the name of the trustee or other
fiduciary.
|
3.07 Proxies
(1) A
shareholder, other person entitled to vote on behalf of a shareholder pursuant
to Section 3.06 of these Bylaws, or attorney in fact may vote the shareholder's
shares in person or by proxy.
(2) A
shareholder may appoint a proxy to vote or otherwise act for him by signing an
appointment form, either personally or by his attorney in fact. An
executed telegram or cablegram appearing to have been transmitted by such
person, or a facsimile, photostatic or equivalent reproduction of an appointment
form, is a sufficient appointment form.
(3) An
appointment of a proxy is effective when received by the secretary or other
officer or agent authorized to tabulate votes. An appointment is
valid for up to 11 months unless a longer period is expressly provided in the
appointment form.
(4) 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.
7
(5) An
appointment of a proxy is revocable by the shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest. Appointments coupled with an interest include the
appointment of: (a) a pledgee; (b) a person who purchased or agreed
to purchase the shares; (c) a creditor of the corporation who extended credit to
the corporation under terms requiring the appointment; (d) an employee of the
corporation whose employment contract requires the appointment; or (e) a party
to a voting agreement created in accordance with the Act.
(6) An
appointment made irrevocable under this section becomes revocable when the
interest with which it is coupled is extinguished and, in a case provided for in
Subsection 5(c) or 5(d), the proxy becomes revocable three years after the date
of the proxy or at the end of the period, if any, specified herein, whichever is
less, unless the period of irrevocability is renewed from time to time by the
execution of a new irrevocable proxy as provided in this
section. This does not affect the duration of a proxy under
subsection (3).
(7) A
transferee for value of shares subject to an irrevocable appointment may revoke
the appointment if he did not know of its existence when he acquired the shares
and the existence of the irrevocable appointment was not noted conspicuously on
the certificate representing the shares or on the information statement for
shares without certificates.
(8) Subject
to Section 3.09 of these Bylaws and to any express limitation on the proxy's
authority appearing on the face of the appointment form, a corporation is
entitled to accept the proxy's vote or other action as that of the shareholder
making the appointment.
(9) If
an appointment form expressly provides, any proxy holder may appoint, in
writing, a substitute to act in his place.
3.08 Shares
Held by Nominees
(1) The
corporation may establish a procedure by which the beneficial owner of shares
that are registered in the name of a nominee is recognized by the corporation as
the shareholder. The extent of this recognition may be determined in
the procedure.
(2) The
procedure may set forth (a) the types of nominees to which it applies; (b) the
rights or privileges that the corporation recognizes in a beneficial owner; (c)
the manner in which the procedure is selected by the nominee; (d) the
information that must be provided when the procedure is selected; (e) the period
for which selection of the procedure is effective; and (f) other aspects of the
rights and duties created.
3.09 Corporation's
Acceptance of Votes
(1) If
the name signed on a vote, consent, waiver, or proxy appointment corresponds to
the name of a shareholder, the corporation if acting in good faith is entitled
to accept the vote, consent waiver, or proxy appointment and give it effect as
the act of the shareholder.
8
(2) If
the name signed on a vote, consent, waiver, or proxy appointment does not
correspond to the name of its shareholder, the corporation if acting in good
faith is nevertheless entitled to accept the vote, consent, waiver, or proxy
appointment and give it effect as the act of the shareholder if: (a) the
shareholder is an entity and the name signed purports to be that of an officer
or agent of the entity; (b) the name signed purports to be that of an
administrator, executor, guardian, personal representative, or conservator
representing the shareholder and, if the corporation requests, evidence of
fiduciary status acceptable to the corporation has been presented with respect
to the vote, consent, waiver, or proxy appointment; (c) the name signed purports
to be that of a receiver, trustee in bankruptcy, or assignee for the benefit of
creditors of the shareholder and, if the corporation requests, evidence of this
status acceptable to the corporation has been presented with respect to the
vote, consent, waiver, or proxy appointment; (d) the name signed purports to be
that of a pledgee, beneficial owner, or attorney in fact of the shareholder and,
if the corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder has been presented with
respect to the vote, consent, waiver, or proxy appointment; or (e) two or more
persons are the shareholder as covenants or fiduciaries and the name signed
purports to be the name of at least one of the co-owners and the person signing
appears to be acting on behalf of all the co-owners.
(3) The
corporation is entitled to reject a vote, consent, waiver, or proxy appointment
if the secretary or other officer or agent authorized to tabulate votes, acting
in good faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for the
shareholder.
(4) The
corporation and its officer or agent who accepts or rejects a vote, consent,
waiver, or proxy appointment in good faith and in accordance with the standards
of this section are not liable in damages to the shareholder for the
consequences of the acceptance or rejection.
(5) Corporate
action based on the acceptance or rejection of a vote, consent, waiver, or proxy
appointment under this section is valid unless a court of competent jurisdiction
determines otherwise.
3.10 Action
by Shareholders Without Meeting
(1) Any
action required or permitted by the Act to be taken at any annual or special
meeting of shareholders of the corporation may be taken without a meeting,
without prior notice and without a vote, if the action is taken by the holders
of outstanding stock of each voting group entitled to vote thereon having not
less than the minimum number of votes with respect to each voting group that
would be necessary to authorize or take such action at a meeting at which all
voting groups and shares entitled to vote thereon were present and
voted. In order to be effective, the action must by evidenced by one
or more written consents describing the action taken, dated and signed by
approving shareholders having the requisite number of votes of each voting group
entitled to vote thereon, and delivered to the corporation by delivery to its
principal office in this state, its principal place of business, the corporate
secretary, or another office or agent of the corporation having custody of the
book in which proceedings of meetings of shareholders are
recorded. No written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the date of the earliest
dated consent is delivered in the manner required by this section, written
consent signed by the number of holders required to take action is delivered to
the corporation by delivery as set forth in this section.
9
(2) Within
10 days after obtaining such authorization by written consent, notice in
accordance with Section 607.0704(3) of the Act must be given to those
shareholders who have not consented in writing.
ARTICLE 4.
|
BOARD OF DIRECTORS AND
OFFICERS
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4.01 Qualifications
of Directors
Directors
must be natural persons who are 18 years of age or older but need not be
residents of the State of Florida or shareholders of the
corporation.
4.02 Number
of Directors
The board
of directors shall consist of not less than one nor more than 10
individuals. The number of directors may be increased or decreased
from time to time by amendment to these Bylaws.
4.03 Election
of Directors; Terms of Directors Generally
(1) Directors
are elected at the first annual shareholders' meeting and at each annual meeting
thereafter unless their terms are staggered under Section 4.04 of these
Bylaws.
(2) The
terms of the initial directors of the corporation expire at the first
shareholders' meeting at which directors are elected.
(3) The
terms of all other directors expire at the next annual shareholders' meeting
following their election unless their terms are staggered under Section 4.04 of
these Bylaws.
(4) A
decrease in the number of directors does not shorten an incumbent director's
term.
(5) The
term of a director elected to fill a vacancy expires at the next shareholders'
meeting at which directors are elected.
(6) Despite
the expiration of a director's term, he continues to serve until his successor
is elected and qualifies or until there is a decrease in the number of
directors.
4.04 Staggered
Terms for Directors
The
directors of any corporation organized under the Act may, by the Articles of
Incorporation, or by amendment to these Bylaws adopted by a vote of the
shareholders, be divided into one, two or three classes with the number of
directors in each class being as nearly equal as possible; the term of office of
those of the first class to expire at the annual meeting next ensuing; of the
second class one year thereafter; at the third class two years thereafter; and
at each annual election held after such classification and election, directors
shall be chosen for a full term, as the case may be, to succeed those whose
terms expire. If the directors have staggered terms, then any
increase or decrease in the number of directors shall be so apportioned among
the classes as to make all classes as nearly equal in number as
possible.
10
4.05 Vacancy
on Board
(1) Whenever
a vacancy occurs on a board of directors, including a vacancy resulting from an
increase in the number of directors, it may be filled by the affirmative vote of
a majority of the remaining directors.
(2) A
vacancy that will occur at a specific later date (by reason of a resignation
effective at a later date may be filled before the vacancy occurs but the new
director may not take office until the vacancy occurs.
4.06 Compensation
of Directors
The board
of directors may fix the compensation of directors.
4.07 Meetings
(1) The
board of directors may hold regular or special meetings in or out of the State
of Florida.
(2) A
majority of the directors present, whether or not a quorum exists, may adjourn
any meeting of the board of directors to another time and
place. Notice of any such adjourned meeting shall be given to the
directors who were not present at the time of the adjournment and, unless the
time and place of the adjourned meeting are announced at the time of the
adjournment, to the other directors.
(3) Meetings
of the board of directors may be called by the chairman of the board or by the
president.
(4) The
board of directors may permit any or all directors to participate in a regular
or special meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
4.08 Action
by Directors Without a Meeting
(1) Action
required or permitted by the Act to be taken at a board of directors' meeting or
committee meeting may be taken without a meeting if the action is taken by all
members of the board or of the committee. The action must be
evidenced by one or more written consents describing the action taken and signed
by each director or committee member.
(2) Action
taken under this section is effective when the last director signs the consent,
unless the consent specifies a different effective date.
11
(3) A
consent signed under this section has the effect of a meeting vote and may be
described as such in any document.
4.09 Notice
of Meetings
Regular
and special meetings of the board of directors may be held without notice of the
date, time, place, or purpose of the meeting.
4.10 Waiver
of Notice
Notice of
a meeting of the board of directors need not be given to any director who signs
a waiver of notice either before or after the meeting. Attendance of
a director at a meeting shall constitute a waiver of notice of such meeting and
a waiver of any and all objections to the place of the meeting, the time of the
meeting, or the manner in which it has been called or convened, except when a
director states, at the beginning of the meeting or promptly upon arrival at the
meeting, any objection to the transaction of business because the meeting is not
lawfully called or convened.
4.11 Quorum
and Voting
(1) A
quorum of a board of directors consists of a majority of the number of directors
prescribed by the Articles of Incorporation or these Bylaws.
(2) If
a quorum is present when a vote is taken, the affirmative vote of a majority of
directors present is the act of the board of directors.
(3) A
director of a corporation who is present at a meeting of the board of directors
or a committee of the board of directors when corporate action is taken is
deemed to have assented to the action taken unless (a) he objects at the
beginning of the meeting (or promptly upon his arrival) to holding it or
transacting specified business at the meeting; or (b) he votes against or
abstains from the action taken.
4.12 Committees
(1) The
board of directors, by resolution adopted by a majority of the full board of
directors, may designate from among its members an executive committee and one
or more other committees each of which, to the extent provided in such
resolution, shall have and may exercise all the authority of the board of
directors, except that no such committee shall have the authority
to:
|
(a)
|
Approve
or recommend to shareholders actions or proposals required by the Act to
be approved by shareholders.
|
|
(b)
|
Fill
vacancies on the board of directors or any committee
thereof.
|
|
(c)
|
Adopt,
amend, or repeal these Bylaws.
|
12
|
(d)
|
Authorize
or approve the reacquisition of shares unless pursuant to a general
formula or method specified by the board of
directors.
|
|
(e)
|
Authorize
or approve the issuance or sale or contract for the sale of shares, or
determine the designation and relative rights, preferences, and
limitations of a voting group except that the board of directors may
authorize a committee (or a senior executive officer of the corporation)
to do so within limits specifically prescribed by the board of
directors.
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(2) The
sections of these Bylaws which govern meetings, notice and waiver of notice, and
quorum and voting requirements of the board of directors apply to committees and
their members as well.
(3) Each
committee must have two or more members who serve at the pleasure of the board
of directors. The board, by resolution adopted in accordance
herewith, may designate one or more directors as alternate members of any such
committee who may act in the place and stead of any absent member or members at
any meeting of such committee.
(4) Neither
the designation of any such committee, the delegation thereto of authority, nor
action by such committee pursuant to such authority shall alone constitute
compliance by any member of the board of directors not a member of the committee
in question with his responsibility to act in good faith, in a manner he
reasonably believes to be in the best interests of the corporation, and with
such care as an ordinarily prudent person in a like position would use under
similar circumstances.
4.13 Loans
to Officers, Directors, and Employees; Guaranty of Obligations
The
corporation may lend money to, guaranty any obligation of, or otherwise assist
any officer, director, or employee of the corporation or of a subsidiary,
whenever, in the judgment of the board of directors, such loan, guaranty, or
assistance may reasonably be expected to benefit the corporation. The
loan, guaranty, or other assistance may be with or without interest and may be
unsecured or secured in such manner as the board of directors shall approve,
including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this section shall be deemed to deny, limit,
or restrict the powers of guaranty or warranty of any corporation at common law
or under any statute. Loans, guaranties, or other types of assistance
are subject to section 4.19.
4.14 Required
Officers
(1) The
corporation shall have such officers as the board of directors may appoint from
time to time.
(2) A
duly appointed officer may appoint one or more assistant officers.
(3) The
board of directors shall delegate to one of the officers responsibility for
preparing minutes of the directors' and shareholders' meetings and for
authenticating records of the corporation.
13
(4) The
same individual may simultaneously hold more than one office in the
corporation.
4.15 Duties
of Officers
Each
officer has the authority and shall perform the duties set forth in a resolution
or resolutions of the board of directors or by direction of any officer
authorized by the board of directors to prescribe the duties of other
officers.
4.16 Resignation
and Removal of Officers
(1) An
officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered
unless the notice specifies a later effective date. If a resignation
is made effective at a later date and the corporation accepts the future
effective date, the board of directors may fill the pending vacancy before the
effective date if the board of directors provides that the successor does not
take office until the effective date.
(2) The
board of directors may remove any officer at any time with or without
cause. Any assistant officer, if appointed by another officer, may
likewise be removed by the board of directors or by the officer which appointed
him in accordance with these Bylaws.
4.17 Contract
Rights of Officers
The
appointment of an officer does not itself create contract rights.
4.18 General
Standards for Directors
(1) A
director shall discharge his duties as a director, including his duties as a
member of a committee:
|
(a)
|
In
good faith;
|
(b)
|
(b)
With
the care an ordinarily prudent person in a like position would exercise
under similar circumstances;
and
|
(c)
|
(c)
In
a manner he reasonably believes to be in the best interests of the
corporation.
|
(2) In
discharging his duties, a director is entitled to rely on information, opinions,
reports or statements, including financial statements and other financial data,
if prepared or presented by:
|
(a)
|
One
or more officers or employees of the corporation whom the director
reasonably believes to be reliable and competent in the matters
presented;
|
|
(b)
|
Legal
counsel, public accountants, or other persons as to matters the director
reasonably believes are within the persons' professional or expert
competence; or
|
14
|
(c)
|
A
committee of the board of directors of which he is not a member if the
director reasonably believes the committee merits
confidence.
|
(3) In
discharging his duties, a director may consider such factors as the director
deems relevant, including the long-term prospects and interests of the
corporation and its shareholders, and the social, economic, legal, or other
effects of any action on the employees, suppliers, customers of the corporation
or its subsidiaries, the communities and society in which the corporation or its
subsidiaries operate, and the economy of the state and the nation.
(4) A
director is not acting in good faith if he has knowledge concerning the matter
in question that makes reliance otherwise permitted by subsection (2)
unwarranted.
(5) A
director is not liable for any action taken as a director, or any failure to
take any action, if he performed the duties of his office in compliance with
this section.
4.19 Director
Conflicts of Interest
(1) No
contract or other transaction between a corporation and one or more interested
directors shall be either void or voidable because of such relationship or
interest, because such director or directors are present at the meeting of the
board of directors or a committee thereof which authorizes, approves or ratifies
such contract or transaction, or because his or their votes are counted for such
purpose, if:
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(a)
|
The
fact of such relationship or interest is disclosed or known to the board
of directors or committee which authorizes, approves or ratifies the
contract or transactions by a vote or consent sufficient for the purpose
without counting the votes or consents of such interested
directors;
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|
(b)
|
The
fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve or ratify such
contract or transaction by vote or written consent;
or
|
|
(c)
|
The
contract or transaction is fair and reasonable as to the corporation at
the time it is authorized by the board, a committee or the
shareholders.
|
(2) Common
or interested directors may be counted in determining the presence of a quorum
at the meeting of the board of directors or a committee thereof which
authorizes, approves or ratifies such contract or transaction.
(3) For
the purpose of paragraph 1(b) above, a conflict of interest transaction is
authorized, approved or ratified if it receives the vote of a majority of the
shares entitled to be counted under this subsection. Shares owned by
or voted under the control of a director who has a relationship or interest in
the conflict of interest transaction may not be counted in a vote of
shareholders to determine whether to authorize, approve or ratify a conflict of
interest transaction under paragraph 1(b). The vote of those shares,
however, is counted in determining whether the transaction is approved under
other sections of the Act. A majority of the shares, whether or not
present, that are entitled to be counted in a vote on the transaction under this
subsection constitutes a quorum for the purpose of taking action under this
section.
15
4.20
Resignation of Directors
A
director may resign at any time by delivering written notice to the board of
directors or its chairman or to the corporation. A resignation is
effective when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective at a later date,
the board of directors may fill the pending vacancy before the effective date if
the board of directors provides that the successor does not take office until
the effective date.
ARTICLE
5.
|
Indemnification
of Directors, Officers, Employees and
Agents
|
5.01
Directors, Officers, Employees and Agents
(1) The
corporation shall have power to indemnify any person who was or is a party to
any proceeding (other than an action by, or in the right of, the corporation),
by reason of the fact that he is or was a director, officer, employee, or agent
of the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he acted in good faith
and in a manner he 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 his conduct was
unlawful. The termination of any proceeding by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(2) The
corporation shall have power to indemnify any person, who was or is a party to
any proceeding by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee,
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against expenses and
amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expense of litigating the proceeding to conclusion,
actually and reasonably incurred in connection with the defense or settlement of
such proceeding, including any appeal thereof. Such indemnification
shall be authorized if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made under this subsection
in respect of any claim, issue, or matter as to which such person shall have
been adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
16
(3) To
the extent that a director, officer, employee, or agent of the corporation has
been successful on the merits or otherwise in defense of any proceeding referred
to in subsections (1) or (2), or in defense of any claim, issue, or matter
therein, he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith.
(4) Any
indemnification under subsections (1) or (2), unless pursuant to a determination
by a court, shall be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee, or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (1) or
(2). Such determination shall be made:
|
(a)
|
By
the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such
proceeding;
|
|
(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 (in which
directors who are parties may participate) consisting solely of two or
more directors not at the time parties to the
proceeding;
|
|
(c)
|
By
independent legal counsel:
|
|
(i)
|
Selected
by the board of directors prescribed in paragraph (a) or the committee
prescribed in paragraph (b); or
|
|
(ii)
|
If
a quorum of the directors cannot be obtained for paragraph (a) and the
committee cannot be designed under paragraph (b), selected by majority
vote of the full board of directors (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 proceeding or, if no such quorum is
obtainable, by a majority vote of shareholders who were not parties to
such proceeding.
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(5) Evaluation
of the reasonableness of expenses and authorization of indemnification shall be
made in the same manner as the determination that indemnification is
permissible. However, if the determination of permissibility is made
by independent legal counsel, persons specified by paragraph (4)(c) shall
evaluate the reasonableness of expenses and may authorize
indemnification.
(6) Expenses
incurred by an officer or director in defending a civil or criminal proceeding
may be paid by the corporation in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if he is ultimately found not to be entitled to
indemnification by the corporation pursuant to this section. Expenses
incurred by other employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
17
(7) The
indemnification and advancement of expenses provided pursuant to this section
are not exclusive, and the corporation may make any other or further
indemnification or advancement of expenses of any of its directors, officers,
employees, or agents, under any Bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not
be made to or on behalf of any director, officer, employee, or agent if a
judgment or other final adjudication establishes that his actions, or omissions
to act, were material to the cause of action so adjudicated and
constitute:
|
(a)
|
A
violation of the criminal law, unless the director, officer, employee, or
agent had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was
unlawful;
|
|
(b)
|
A
transaction from which the director, officer, employee, or agent derived
an improper personal benefit;
|
|
(c)
|
In
the case of a director, a circumstance under which the liability
provisions of Section 607.0834 under the Act are applicable;
or
|
|
(d)
|
Willful
misconduct or a conscious disregard for the best interests of the
corporation in a proceeding by or in the right of the corporation to
procure a judgment in its favor or in a proceeding by or in the right of a
shareholder.
|
(8) Indemnification
and advancement of expenses as provided in this section shall continue as,
unless otherwise provided when authorized or ratified, to a person who has
ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person, unless
otherwise provided when authorized or ratified.
(9) Notwithstanding
the failure of the corporation to provide indemnification, and despite any
contrary determination of the board or of the shareholders in the specific case,
a director, officer, employee, or agent of the corporation who is or was a party
to a proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or to
another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers necessary, may
order indemnification and advancement of expenses, including expenses incurred
in seeking court-ordered indemnification or advancement of expenses, if it
determines that:
|
(a)
|
The
director, officer, employee, or agent if entitled to mandatory
indemnification under subsection (3), in which case the court shall also
order the corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of
expenses;
|
18
|
(b)
|
The
director, officer, employee, or agent is entitled to indemnification or
advancement of expenses, or both, by virtue of the exercise by the
corporation of its power pursuant to subsection (7);
or
|
|
(c)
|
The
director, officer, employee, or agent is fairly and reasonably entitled to
indemnification or advancement of expenses, or both, in view of all the
relevant circumstances, regardless of whether such person met the standard
of conduct set forth in subsection (1), subsection (2) or subsection
(7).
|
(10) For
purposes of this section, the term "corporation" includes, in addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger, so that any person who is
or was a director, officer, employee, or agent of a constituent corporation, or
is or was serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust or other enterprise, is in the same position under this section with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
(11) For
purposes of this section:
|
(a)
|
The
term "other enterprises" includes employee benefit
plans;
|
|
(b)
|
The
term "expenses" includes counsel fees, including those for
appeal;
|
|
(c)
|
The
term "liability" includes obligations to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses actually and reasonably incurred with
respect to a proceeding;
|
|
(d)
|
The
term "proceeding" includes any threatened, pending, or completed action,
suit or other type of proceeding, whether civil, criminal, administrative,
or investigative and whether formal or
informal;
|
|
(e)
|
The
term "agent" includes a volunteer;
|
|
(f)
|
The
term "serving at the request of the corporation" includes any service as a
director, officer, employee, or agent of the corporation that imposes
duties on such persons, including duties relating to an employee benefit
plan and its participants or beneficiaries;
and
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|
(g)
|
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.
|
19
(12) The
corporation shall have power to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee, or agent of the corporation
or is or was serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other enterprise against any liability asserted against him and incurred by him
in any such capacity or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this section.
ARTICLE
6.
|
REGISTERED
OFFICE AND REGISTERED
AGENT
|
(1) The
corporation shall have and continuously maintain in the State of Florida (a) a
registered office which may be the same as its place of business; and (b) a
registered agent, who, may be either:
|
(i)
|
An
individual who resides in the State of Florida whose business office is
identical with such registered office;
or
|
|
(ii)
|
Another
corporation or not-for-profit corporation as defined in Chapter 617 of the
Act, authorized to transact business or conduct its affairs in the State
of Florida, having a business office identical with the registered office;
or
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(iii)
|
A
foreign corporation or not-for-profit foreign corporation authorized
pursuant to chapter 607 or chapter 617 of the Act to transact business or
conduct its affairs in the State of Florida, having a business office
identical with the registered
office.
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(2) The
corporation may change its registered office or its registered agent upon filing
with the Department of State of the State of Florida a statement of change
setting forth (a) the name of the corporation; (b) the street address of its
current registered office; (c) if the current registered office is to be
changed, the street address of the new registered office; (d) the name of its
current registered agent; (e) if its current registered agent is to be changed,
the name and address of the new registered agent and the new agent's written
consent (either on the statement or attached to it) to the
appointment.
(3) Any
change shall be authorized by resolution duly adopted by the board of
directors.
ARTICLE
7.
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SHARES,
OPTIONS, DIVIDENDS AND
DISTRIBUTIONS
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7.01
Authorized Shares
(1) The
Articles of Incorporation prescribe the classes of shares and the number of
shares of each class that the corporation is authorized to issue, as well as a
distinguishing designation for each class, and prior to the issuance of shares
of a class the preferences, limitations, and relative rights of that class must
be described in the Articles of Incorporation.
(2) The
Articles of Incorporation must authorize (a) one or more classes of shares that
together have unlimited voting rights; and (b) one or more classes of shares
(which may be the same class or classes as those with voting rights) that
together are entitled to receive the net assets of the corporation upon
dissolution.
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(3) The
Articles of Incorporation may authorize one or more classes of shares that have
special, conditional, or limited voting rights, or no rights, or no right to
vote, except to the extent prohibited by the Act;
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(a)
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Are
redeemable or convertible as specified in the Articles of
Incorporation;
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(b)
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Entitle
the holders to distributions calculated in any manner, including dividends
that may be cumulative, non-cumulative, or partially
cumulative;
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(c)
|
Have
preference over any other class of shares with respect to distributions,
including dividends and distributions upon the dissolution of the
corporation.
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(4) Shares
which are entitled to preference in the distribution of dividends or assets
shall not be designated as common shares. Shares which are not
entitled to preference in the distribution of dividends or assets shall be
common shares and shall not be designated as preferred shares.
7.02
Terms of Class or Series Determined by Board of Directors
(1) If
the Articles of Incorporation so provide, the board of directors may determine,
in whole or part, the preferences, limitations, and relative rights (within the
limits set forth in Section 7.01) of:
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(a)
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Any
class of shares before the issuance of any shares of that class,
or
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(b)
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One
or more series within a class before the issuance of any shares of that
series.
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(2) Each
series of a class must be given a distinguishing designation.
(3) All
shares of a series must have preferences, limitations, and relative rights
identical with those of other shares of the same series and, except to the
extent otherwise provided in the description of the series, of those of other
series of the same class.
(4) Before
issuing any shares of a class or series created under this section, the
corporation must deliver to the Department of State of the State of Florida for
filing articles of amendment, which are effective without shareholder action, in
accordance with Section 607.0602 of the Act.
7.03
Issued and Outstanding Shares
(1) (1) A
corporation may issue the number of shares of each class or series authorized by
the Articles of Incorporation. Shares that are issued are outstanding
shares until they are reacquired, redeemed, converted, or canceled.
(2)
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(3) (2) The
reacquisition, redemption, or conversion of outstanding shares is subject to the
limitations of subsection (3) and to Section 607.06401 of the Act.
(4)
(5) (3) At
all times that shares of the corporation are outstanding, one or more shares
that together have unlimited voting rights and one or more shares that together
are entitled to receive the net assets of the corporation upon dissolution must
be outstanding.
7.04
Issuance of Shares.
(1) The
board of directors may authorize shares to be issued for consideration
consisting of any tangible or intangible property or benefit to the corporation,
including cash, promissory notes, services performed, promises to perform
services evidenced by a written contract, or other securities of the
corporation.
(2) Before
the corporation issues shares, the board of directors must determine that the
consideration received or to be received for shares to be issued is
adequate. That determination by the board of directors is conclusive
insofar as the adequacy of consideration for the issuance of shares relates to
whether the shares are validly issued, fully paid, and
non-assessable. When it cannot be determined that outstanding shares
are fully paid and non-assessable, there shall be a conclusive presumption that
such shares are fully paid and non-assessable if the board of directors makes a
good faith determination that there is no substantial evidence that the full
consideration for such shares has not been paid.
(3) When
the corporation receives the consideration for which the board of directors
authorized the issuance of shares, the shares issued therefor are fully paid and
non-assessable. Consideration in the form of a promise to pay money
or a promise to perform services is received by the corporation at the time of
the making of the promise, unless the agreement specifically provides
otherwise.
(4) The
corporation may place in escrow shares issued for a contract for future services
or benefits or a promissory note, or make other arrangements to restrict the
transfer of the shares, and may credit distributions in respect of the shares
against their purchase price, until the services are performed, the note is
paid, or the benefits received. If the services are not performed,
the shares escrowed or restricted and the distributions credited may be canceled
in whole or part.
7.05
Form and Content of Certificates
(1) Shares
may but need not be represented by certificates. Unless the Act or
another statute expressly provides otherwise, the rights and obligations of
shareholders are identical whether or not their shares are represented by
certificates.
(2) At
a minimum, each share certificate must state on its face (a) the name of the
issuing corporation and that the corporation is organized under the laws of the
State of Florida; (b) the name of the person to whom issued; and (c) the number
and class of shares and the designation of the series, if any, the certificate
represents.
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(3) If
the shares being issued are of different classes of shares or different series
within a class, the designations, relative rights, preferences, and limitations
applicable to each class and the variations in rights, preferences, and
limitations determined for each series (and the authority of the board of
directors to determine variations for future series) must be summarized on the
front or back of each certificate. Alternatively, each certificate
may state conspicuously on its front or back that the corporation will furnish
the shareholder a full statement of this information on request and without
charge.
(4) Each
share certificate (a) must be signed (either manually or in facsimile) by an
officer or officers designated by the board of directors; and (b) may bear the
corporate seal or its facsimile.
(5) If
the person who signed (either manually or in facsimile) a share certificate no
longer holds office when the certificate is issued, the certificate is
nevertheless valid.
7.06
Shares Without Certificates
(1) The
board of directors of the corporation may authorize the issue of some or all of
the shares of any or all of its classes or series without
certificates. The authorization does not affect shares already
represented by certificates until they are surrendered to the
corporation.
(2) Within
a reasonable time after the issue or transfer of shares without certificates,
the corporation shall send the shareholder a written statement of the
information required on certificates by the Act.
7.07
Restriction on Transfer of Shares and Other Securities
(1) The
Articles of Incorporation, these Bylaws, an agreement among shareholders, or an
agreement between shareholders and the corporation may impose restrictions on
the transfer or registration of transfer of shares of the
corporation. A restriction does not affect shares issued before the
restriction was adopted unless the holders of such shares are parties to the
restriction agreement or voted in favor of the restriction.
(2) A
restriction on the transfer or registration of transfer of shares is valid and
enforceable against the holder or a transferee of the holder if the restriction
is authorized by this section, and effected in compliance with the provisions of
the Act, including having a proper purpose as referred to in the
Act.
7.08
Shareholder's Pre-emptive Rights
The
shareholders of the corporation do not have a pre-emptive right to acquire the
corporation's unissued shares.
23
7.09
Corporation's Acquisition of its Own Shares.
(1) The
corporation may acquire its own shares, and, unless otherwise provided in the
Articles of Incorporation or except as provided in subsection (4), shares so
acquired constitute authorized but unissued shares of the same class but
undesignated as to series.
(2) If
the Articles of Incorporation prohibit the reissue of acquired shares, the
number of authorized shares is reduced by the number of shares acquired,
effective upon amendment of the Articles of Incorporation.
(3) Articles
of amendment may be adopted by the board of directors without shareholder
action, shall be delivered to the Department of State of the State of Florida
for filing, and shall set forth the information required by Section 607.0631 of
the Act.
7.10
Share Options
(1) Unless
the Articles of Incorporation provide otherwise, the corporation may issue
rights, options, or warrants for the purchase of shares of the
corporation. The board of directors shall determine the terms upon
which the rights, options, or warrants are issued, their form and content, and
the consideration for which the shares are to be issued.
(2) The
terms and conditions of stock rights and options which are created and issued by
the corporation, or its successor, and which entitle the holders thereof to
purchase from the corporation shares of any class or classes, whether authorized
by unissued shares, treasury shares, or shares to be purchased or acquired by
the corporation, may include, without limitation, restrictions, or conditions
that preclude or limit the exercise, transfer, receipt, or holding of such
rights or options by any person or persons, including any person or persons
owning or offering to acquire a specified number or percentage of the
outstanding common shares or other securities of the corporation, or any
transferee or transferees of any such person or persons, or that invalidate or
void such rights or options held by any such person or persons or any such
transferee or transferees.
7.11
Terms and Conditions of Stock Rights and Options
The terms
and conditions of the stock rights and options which are created and issued by
the corporation, and which entitle the holders thereof to purchase from the
corporation shares of any class or classes, whether authorized but unissued
shares, treasury shares, or shares to be purchased or acquired by the
corporation, may include, without limitation, restrictions or conditions that
preclude or limit the exercise, transfer, receipt or holding of such rights or
options by any person or persons, including any person or persons owning or
offering to acquire a specified number or percentage of the outstanding common
shares or other securities of the corporation, or any transferee or transferees
of any such person or persons, or that invalidate or void such rights or options
held by any such person or persons or any such transferee or
transferees.
7.12
Share Dividends
(1) Shares
may be issued pro rata and without consideration to the corporation's
shareholders or to the shareholders of one or more classes or
series. An issuance of shares under this subsection is a share
dividend.
24
(2) Shares
of one class or series may not be issued as a share dividend in respect of
shares of another class or series unless (a) the Articles of Incorporation so
authorize; (b) a majority of the votes entitled to be cast by the class or
series to be issued approves the issue; or (c) there are no outstanding shares
of the class or series to be issued.
(3) If
the board of directors does not fix the record date for determining shareholders
entitled to a share dividend, it is the date of the board of directors
authorizes the share dividend.
7.13
Distributions to Shareholders
(1) The
board of directors may authorize and the corporation may make distributions to
its shareholders subject to restriction by the Articles of Incorporation and the
limitations in subsection (3).
(2) If
the board of directors does not fix the record date for determining shareholders
entitled to a distribution (other than one involving a purchase, redemption, or
other acquisition of the corporation's shares), it is the date the board of
directors authorizes the distribution.
(3) No
distribution may be made if, after giving it effect:
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(a)
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The
corporation would not be able to pay its debts as they become due in the
usual course of business; or
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(b)
|
The
corporation's total assets would be less than the sum of its total
liabilities plus (unless the Articles of Incorporation permit otherwise)
the amount that would be needed, if the corporation were to be dissolved
at the time of the distribution, to satisfy the preferential rights upon
dissolution of shareholders whose preferential rights are superior to
those receiving the distribution.
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(4) The
board of directors may base a determination that a distribution is not
prohibited under subsection (3) either on financial statements prepared on the
basis of accounting practices and principles that are reasonable in the
circumstances or on a fair valuation or other method that is reasonable in the
circumstances. In the case of any distribution based upon such a
valuation, each such distribution shall be identified as a distribution based
upon a current valuation of assets, and the amount per share paid on the basis
of such valuation shall be disclosed to the shareholders concurrent with their
receipt of the distribution.
(5) Except
as provided in subsection (7), the effect of a distribution under subsection (3)
is measured;
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(a)
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In
the case of distribution by purchase, redemption, or other acquisition of
the corporation's shares, as of the earlier of (i) the date money or other
property is transferred or debt incurred by the corporation; or (ii) the
date the shareholder ceases to be a shareholder with respect to the
acquired shares;
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25
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(b)
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In
the case of any other distribution of indebtedness, as of the date the
indebtedness is distributed;
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(c)
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In
all other cases, as of (i) the date the distribution is authorized if the
payment occurs within 120 days after the date of
authorization; or (ii) the date the payment is made if it
occurs more than 120 days after the date of
authorization.
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(6) A
corporation's indebtedness to a shareholder incurred by reason of a distribution
made in accordance with this section is at parity with the corporation's
indebtedness to its general, unsecured creditors except to the extent
subordinated by agreement.
(7) Indebtedness
of the corporation, including indebtedness issued as a distribution, is not
considered a liability for purposes of determinations under subsection (3) if
its terms provide that payment of principal and interest are made only if and to
the extent that payment of a distribution to shareholders could then be made
under this section. If the indebtedness is issued as a distribution,
each payment of principal or interest is treated as a distribution, the effect
of which is measured on the date the payment is actually made.
ARTICLE
8.
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AMENDMENT
OF ARTICLES AND
BYLAWS
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8.01
Authority to Amend the Articles of Incorporation
(1) The
corporation may amend its Articles of Incorporation at any time to add or change
a provision that is required or permitted in the Articles of Incorporation or to
delete a provision not required in the Articles of
Incorporation. Whether a provision is required or permitted in the
Articles of Incorporation is determined as of the effective date of the
amendment.
(2) A
shareholder of the corporation does not have a vested property right resulting
from any provision in the Articles of Incorporation, including provisions
relating to management, control, capital structure, dividend entitlement, or
purpose or duration of the corporation.
8.02
Amendment by Board of Directors
The
corporation's board of directors may adopt one or more amendments to the
corporation's Articles of Incorporation without shareholder action:
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(a)
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To
extend the duration of the corporation if it was incorporated at a time
when limited duration was required by
law;
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(b)
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To
delete the names and addresses of the initial
directors;
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(c)
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To
delete the name and address of the initial registered agent or registered
office, if a statement of change is on file with the Department of State
of the State of Florida;
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26
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(d)
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To
delete any other information contained in the Articles of Incorporation
that is solely of historical
interest;
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(e)
|
To
change each issued and unissued authorized share of an outstanding class
into a greater number of whole shares if the corporation has only shares
of that class outstanding;
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(f)
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To
delete the authorization for a class or series of shares authorized
pursuant to Section 607.0602 of the Act, if no shares of such class or
series have been issued;
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(g)
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To
change the corporate name by substituting the word "corporation,"
"incorporated," or "company," or the abbreviation "corp.," Inc.," or Co.,"
for a similar word or abbreviation in the name, or by adding, deleting, or
changing a geographical attribution for the name;
or
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(h)
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To
make any other change expressly permitted by the Act to be made without
shareholder action.
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8.03
Amendment of Bylaws by Board of Directors
The
corporation's board of directors may amend or repeal the corporation's Bylaws
unless the Act reserves the power to amend a particular Bylaw provision
exclusively to the shareholders.
8.04
Bylaw Increasing Quorum or Voting Requirements for Directors
(1) A
Bylaw that fixes a greater quorum or voting requirement for the board of
directors may be amended or repealed (a) if originally adopted by the
shareholders, only by the shareholders; or (b)if originally adopted by the board
of directors, either by the shareholders or by the board of
directors.
(2) A
Bylaw adopted or amended by the shareholders that fixes a greater quorum or
voting requirement for the board of directors may provide that it may be amended
or repealed only by a specified vote of either the shareholders or the board of
directors.
(3) Action
by the board of directors under paragraph (1)(b) to adopt or amend a Bylaw that
changes the quorum or voting requirement for the board of directors must meet
the same quorum requirement and be adopted by the same vote required to take
action under the quorum and voting requirement then in effect or proposed to be
adopted, whichever is greater.
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ARTICLE
9.
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RECORDS
AND REPORTS
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9.01 Corporate Records
(1) The
corporation shall keep as permanent records minutes of al meetings of its
shareholders and board of directors, a record of all actions taken by the
shareholders or board of directors without a meeting, and a record of all
actions taken by a committee of the board of directors in place of the board of
directors on behalf of the corporation.
(2) The
corporation shall maintain accurate accounting records.
(3) The
corporation or its agent shall maintain a record of its shareholders in a form
that permits preparation of a list of the names and addresses of all
shareholders in alphabetical order by class of shares showing the number and
series of shares held by each.
(4) The
corporation shall maintain its records in written form or in another form
capable of conversion into written form within a reasonable time.
(5) The
corporation shall keep a copy of the following records:
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(a)
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Its
articles or restated Articles of Incorporation and all amendments to them
currently in effect;
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(b)
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Its
Bylaws or restated Bylaws and all amendments to them currently in
effect;
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(c)
|
Resolutions
adopted by the board of directors creating one or more classes or series
of shares and finding their relative rights, preferences, and limitations,
if shares issued pursuant to those resolutions are
outstanding;
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(d)
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The
minutes of all shareholders' meetings and records of all action taken by
shareholders without a meeting for the past three
years;
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(e)
|
Written
communications to all shareholders generally or all shareholders of a
class or series within the past three years, including the financial
statements furnished for the past three
years;
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(f)
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A
list of the names and business street addresses of its current directors
and officers; and
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(g)
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Its
most recent annual report delivered to the Department of State of the
State of Florida.
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9.02
Financial Statements for Shareholders
(1) Unless
modified by resolution of the shareholders within 120 days of the close of each
fiscal year, the corporation shall furnish its shareholders annual financial
statements which may be consolidated or combined statements of the corporation
and one or more of its subsidiaries, as appropriate, that include a balance
sheet as of the end of the fiscal year, an income statement for that year, and a
statement of cash flows for that year. If financial statements are
prepared for the corporation on the basis of generally-accepted accounting
principles, the annual financial statements must also be prepared on that
basis.
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(2) If
the annual financial statements are reported upon by a public accountant, his
report must accompany them. If not, the statements must be
accompanied by a statement of the president or the person responsible for the
corporation's accounting records (a) stating his reasonable belief whether the
statements were prepared on the basis of generally-accepted accounting
principles and, if not, describing the basis of preparation; and (b) describing
any respects in which the statements were not prepared on a basis of accounting
consistent with the statements prepared for the preceding year.
(3) The
corporation shall mail the annual financial statements to each shareholder
within 120 days after the close of each fiscal year or within such additional
time thereafter as is reasonably necessary to enable the corporation to prepare
its financial statements, if for reasons beyond the corporation's control, it is
unable to prepare its financial statements within the prescribed
period. Thereafter, on written request from a shareholder who was not
mailed the statements, the corporation shall mail him the latest annual
financial statements.
9.03
Other Reports to Shareholders
(1) If
the corporation indemnifies or advances expenses to any director, officer,
employee or agent otherwise than by court order or action by the shareholders or
by an insurance carrier pursuant to insurance maintained by the corporation, the
corporation shall report the indemnification or advance in writing to the
shareholders with or before the notice of the next shareholders' meeting, or
prior to such meeting if the indemnification or advance occurs after the giving
of such notice but prior to the time such meeting is held, which report shall
include a statement specifying the persons paid, the amounts paid, and the
nature and status at the time of such payment of the litigation or threatened
litigation.
(2) If
the corporation issues or authorizes the issuance of shares for promises to
render services in the future, the corporation shall report in writing to the
shareholders the number of shares authorized or issued, and the consideration
received by the corporation, with or before the notice of the next shareholders'
meeting.
9.04
Annual Report for Department of State
(1) The
corporation shall deliver to the Department of State of the State of Florida for
filing a sworn annual report on such forms as the Department of State of the
State of Florida prescribes that sets forth the information prescribed by
Section 607.1622 of the Act.
(2) Proof
to the satisfaction of the Department of State of the State of Florida on or
before July 1 of each calendar year that such report was deposited in the United
States mail in a sealed envelope, properly addressed with postage prepaid, shall
be deemed in compliance with this requirement.
(3) Each
report shall be executed by the corporation by an officer or director or, if the
corporation is in the hands of a receiver or trustee, shall be executed on
behalf of the corporation by such receiver or trustee, and the signing thereof
shall have the same legal effect as if made under oath, without the necessity of
appending such oath thereto.
(4) Information
in the annual report must be current as of the date the annual report is
executed on behalf of the corporation.
29
(5) Any
corporation failing to file an annual report which complies with the
requirements of this section shall not be permitted to maintain or defend any
action in any court of this state until such report is filed and all fees and
taxes due under the Act are paid and shall be subject to dissolution or
cancellation of its certificate of authority to do business as provided in the
Act.
ARTICLE
10.
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MISCELLANEOUS
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10.01
Definition of the "Act"
All
references contained herein to the "Act" or to sections of the "Act" shall be
deemed to be in reference to the Florida Business Corporation Act.
10.02
Application of Florida Law
Whenever
any provision of these Bylaws is inconsistent with any provision of the Florida
Business Corporation Act, Statutes 607, as they may be amended from time to
time, then in such instance Florida law shall prevail.
10.03
Fiscal Year
The
fiscal year of the corporation shall be determined by resolution of the board of
directors.
10.04
Conflicts with Articles of Incorporation
In the
event that any provision contained in these Bylaws conflicts with any provision
of the corporation's Articles of Incorporation, as amended from time to time,
the provisions of the Articles of Incorporation shall prevail and be given full
force and effect, to the full extent permissible under the Act.
The
undersigned hereby certifies that I am a duly authorized officer of the
corporation; that I am duly authorized to make and deliver this
certification; and that the foregoing Bylaws are a true and correct copy
of the Bylaws of the corporation in effect as of this _______ day of
______________________, 2010.
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By:
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Name:
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