Attached files
file | filename |
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S-1/A - ITRACKR SYSTEMS INC | v208643_s1a.htm |
EX-23 - ITRACKR SYSTEMS INC | v208643_ex23.htm |
EX-3.1 - ITRACKR SYSTEMS INC | v208643_ex3-1.htm |
Exhibit
3.2
BY-LAWS
OF
ITRACKR
SYSTEMS, INC.
a Florida
corporation
TABLE
OF CONTENTS
ARTICLE
1: OFFICES
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1
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1.01
PRINCIPAL OFFICE
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1
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1.02
REGISTERED OFFICE
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1
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1.03
OTHER OFFICES
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1
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ARTICLE
2: MEETINGS OF SHAREHOLDERS
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1
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2.01
ANNUAL MEETING
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1
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2.02
SPECIAL MEETING
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1
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2.03
SHAREHOLDERS' LIST FOR MEETING
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2
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2.04
RECORD DATE
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2
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2.05
NOTICE OF MEETINGS AND ADJOURNMENT
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3
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2.06
WAIVER OF NOTICE
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3
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ARTICLE
3: SHAREHOLDER VOTING
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4
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3.01
VOTING GROUP DEFINED
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4
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3.02
QUORUM AND VOTING REQUIREMENTS FOR VOTING GROUPS
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4
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3.03
ACTION BY SINGLE AND MULTIPLE VOTING GROUPS
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4
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3.04
SHAREHOLDER QUORUM AND VOTING; GREATER OR LESSER VOTING
REQUIREMENTS
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4
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3.05
VOTING FOR DIRECTORS; CUMULATIVE VOTING
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5
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3.06
VOTING ENTITLEMENT OF SHARES
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5
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3.07
PROXIES
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6
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3.08
SHARES HELD BY NOMINEES
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7
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3.09
CORPORATION'S ACCEPTANCE OF VOTES
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7
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3.10
ACTION BY SHAREHOLDERS WITHOUT MEETING
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8
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ARTICLE
4: BOARD OF DIRECTORS AND OFFICERS
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8
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4.01
QUALIFICATIONS OF DIRECTORS
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8
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4.02
NUMBER OF DIRECTORS
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9
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4.03
ELECTION OF DIRECTORS; TERMS OF DIRECTORS GENERALLY
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9
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4.04
STAGGERED TERMS FOR DIRECTORS
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9
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4.05
VACANCY ON BOARD
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9
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4.06
COMPENSATION OF DIRECTORS
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9
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4.07
MEETINGS
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10
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4.08
ACTION BY DIRECTORS WITHOUT A MEETING
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10
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4.09
NOTICE OF MEETINGS
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10
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4.10
WAIVER OF NOTICE
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10
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4.11
QUORUM AND VOTING
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10
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4.12
COMMITTEES
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11
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4.13
LOANS TO OFFICERS, DIRECTORS, AND EMPLOYEES; GUARANTY OF
OBLIGATIONS
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11
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4.14
REQUIRED OFFICERS
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12
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4.15
DUTIES OF OFFICERS
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12
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4.16
RESIGNATION AND REMOVAL OF OFFICERS
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12
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4.17
CONTRACT RIGHTS OF OFFICERS
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12
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4.18
GENERAL STANDARDS FOR DIRECTORS
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12
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4.19
DIRECTOR CONFLICTS OF INTEREST
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13
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4.20
RESIGNATION OF DIRECTORS
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14
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i
ARTICLE
5: INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS
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14
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ARTICLE
6: REGISTERED OFFICE AND REGISTERED AGENT
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17
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ARTICLE
7: SHARES, OPTIONS, DIVIDENDS AND DISTRIBUTIONS
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18
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7.01
AUTHORIZED SHARES
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18
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7.02
TERMS OF CLASS OR SERIES DETERMINED BY BOARD OF DIRECTORS
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18
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7.03
ISSUED AND OUTSTANDING SHARES
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19
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7.04
ISSUANCE OF SHARES
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19
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7.05
FORM AND CONTENT OF CERTIFICATES
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19
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7.06
SHARES WITHOUT CERTIFICATES
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20
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7.07
RESTRICTION ON TRANSFER OF SHARES AND OTHER SECURITIES
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20
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7.08
SHAREHOLDER'S PRE-EMPTIVE RIGHTS
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20
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7.09
CORPORATION'S ACQUISITION OF ITS OWN SHARES
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20
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7.10
SHARE OPTIONS
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21
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7.11
TERMS AND CONDITIONS OF STOCK RIGHTS AND OPTIONS
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21
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7.12
SHARE DIVIDENDS
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21
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7.13
DISTRIBUTIONS TO SHAREHOLDERS
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22
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ARTICLE
8: AMENDMENT OF ARTICLES AND BYLAWS
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23
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8.01
AUTHORITY TO AMEND THE ARTICLES OF INCORPORATION
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23
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8.02
AMENDMENT BY BOARD OF DIRECTORS
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23
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8.03
AMENDMENT OF BYLAWS BY BOARD OF DIRECTORS
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23
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8.04
BYLAW INCREASING QUORUM OR VOTING REQUIREMENTS FOR
DIRECTORS
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23
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ARTICLE
9: RECORDS AND REPORTS
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24
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9.01
CORPORATE RECORDS
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24
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9.02
FINANCIAL STATEMENTS FOR SHAREHOLDERS
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24
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9.03
OTHER REPORTS TO SHAREHOLDERS
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25
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9.04
ANNUAL REPORT FOR DEPARTMENT OF STATE
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25
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ARTICLE
10: MISCELLANEOUS
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25
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10.01
DEFINITION OF THE "ACT"
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25
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10.02
APPLICATION OF FLORIDA LAW
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26
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10.03
FISCAL YEAR
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26
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10.04
CONFLICTS WITH ARTICLES OF INCORPORATION
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26
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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 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 slated 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.
(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.
1
(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.
(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
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 vole 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 Statement 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.
(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.
3
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.
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
(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.
(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 vole 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 vole shares held by him without a transfer of such shares into his
name or the name of his nominee.
5
(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:
(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;
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(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;
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(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;
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(f)
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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, photocopy 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.
6
(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.
7
(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.
(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
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.
8
4.02
Number of Directors
The board
of directors shall consist of not less than one nor more than seven 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 directors 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.
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.
9
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.
(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.
10
(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.
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(c)
|
Adopt,
amend, or repeal these bylaws.
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(d)
|
Authorize
or approve the reacquisition of shares unless pursuant to a general
formula or method specified by the board of
directors.
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(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.
11
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.
(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;
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(b)
|
With
the care an ordinarily prudent person in a like position would exercise
under similar circumstances; and
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(c)
|
In
a manner he reasonably believes to be in the best interests of the
corporation.
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(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:
12
(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
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(c)
|
A
committee of the board of directors of which he is not a member if the
director reasonably believes the committee merits
confidence.
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(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:
(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
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(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.
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(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.
13
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.
(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:
14
(a)
|
By
the board of directors by a majority vote of a quorum consisting of
directors who q 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.
(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
|
15
(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.
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(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;
|
(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).
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(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;
|
16
(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.
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(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.
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ARTICLE
7: SHARES, OPTIONS, DIVIDENDS AND DISTRIBUTIONS
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.
(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;
(a)
|
Are
redeemable or convertible as specified in the articles of
incorporation;
|
(b)
|
Entitle
the holders to distributions calculated in any manner, including dividends
that may be cumulative, non-cumulative, or partially
cumulative;
|
(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:
(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.
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7.03
Issued and Outstanding Shares
(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) The
reacquisition, redemption, or conversion of outstanding shares is subject to the
limitations of subsection (3) and to Section 607.06401 of the Act.
(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.
(6) Nothing
in this section may be construed to invalidate any share certificate validly
issued and outstanding under the Act on July 1, 1990.
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.
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.
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(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.
(4) Shares
of the corporation in existence on June 30, 1990, which are treasury shares
under Section 607.004(18), Florida Statutes (1987), shall be issued, but not
outstanding, until canceled or disposed of by the corporation.
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 [or its successor], 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.
(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.
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(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: (a) The corporation would
not be able to pay its debts as they become due in the usual course of business;
or (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.
(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:
(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 (1) 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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(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.
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ARTICLE
8: AMENDMENT OF ARTICLES AND BYLAWS
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:
(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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(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)
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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.
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(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.
ARTICLE
9: RECORDS AND REPORTS 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:
(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)
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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)
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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 (g) 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.
(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.
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(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)
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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.
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(2)
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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.
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(3)
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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.
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(4)
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Information
in the annual report must be current as of the date the annual report is
executed on behalf of the
corporation.
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(5)
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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.
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ARTICLE
10: MISCELLANEOUS
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.
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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.
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CERTIFICATION
OF BYLAWS
OF
ITRACKR
SYSTEMS, INC.
The
undersigned hereby certifies that I am the President of ITRACKR SYSTEMS, INC., a
Florida corporation (the "Corporation"); that I am duly authorized to make and
deliver this certification; and that the attached Bylaws are a true and correct
copy of the Bylaws of the Corporation in effect as of the date of this
Certificate.
Date: January
20, 2011.
/s/ John Rizzo
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John
Rizzo, President
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