UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
washington,
d.c. 20549
|
FORM
8-K/A
|
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): October 22,
2008
_______________________
CRYOLIFE,
INC.
(Exact
name of registrant as specified in its charter)
_________________________
|
Florida
|
1-13165
|
59-2417093
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File Number)
|
(IRS
Employer
Identification
No.)
|
1655
Roberts Boulevard, N.W., Kennesaw, Georgia 30144
(Address
of principal executive office) (zip code)
Registrant's
telephone number, including area code: (770) 419-3355
_____________________________________________________________
(Former
name or former address, if changed since last report)
_________________________
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General Instruction
A.2. below):
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Explanatory
Note
On October 28, 2008, CryoLife, Inc.
(the “Company”) filed a Current Report on Form 8-K (the “Form 8-K”) to report,
among other items, the amendment of the Company’s Bylaws, which are attached to
the Form 8-K as Exhibit 3.1. This amendment to the Form 8-K is being
filed to provide a corrected version of Exhibit 3.1.
Item
9.01(d) Exhibits.
(a)
Financial Statements.
Not applicable.
(b) Pro
Forma Financial Information.
Not applicable.
(c) Shell
Company Transactions.
Not applicable.
(d)
Exhibits.
|
Exhibit Number
|
Description
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|
|
3.1
|
Bylaws
of CryoLife, Inc., as amended and restated as of October 22,
2008
|
- 2
- -
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, CryoLife, Inc. has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| CRYOLIFE, INC. | |||
|
Date: March
5, 2009
|
By:
|
/s/ D.A. Lee | |
| Name: | D. Ashley Lee | ||
| Title | Executive Vice President, Chief | ||
| Operating Officer and Chief | |||
| Financial Officer | |||
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- -
EXHIBIT
3.1
BYLAWS
OF
CRYOLIFE,
INC.
ARTICLE
I
Offices
Section
1. Principal and Business Offices. The corporation
may have such principal and other business offices, 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. The corporation’s
principal office is the office where the corporation’s principal executive
offices are located.
Section 2. Registered
Office. The registered office of the corporation, for so long
as required by applicable law, shall be maintained in the State of
Florida. The address of the registered office may be changed from
time to time by the Board of Directors or the registered agent. The
business office of the registered agent of the corporation shall be identical to
such registered office.
ARTICLE
II
Shareholders
Section 1. Annual
Meeting. The annual meeting of the shareholders shall be held
within the seven (7) month period beginning with the first day of the last month
of the fiscal year of the corporation for the purpose of electing Directors and
for the transaction of such other business as may properly come before the
meeting, the actual day thereof to be set forth in the Notice of Meeting or in
the Waiver of Call and Notice of Meeting. If the election of
Directors shall not be held at any such annual meeting of the shareholders or at
any adjournment thereof, the Board of Directors shall cause the election to be
held at a special meeting of the shareholders as soon thereafter as may be
convenient.
Section 2. Special
Meetings. Special meetings of the shareholders for any
purposes, unless otherwise prescribed by law or by the Articles of
Incorporation, may be called by the President or Secretary at the request in
writing of the majority of the Board of Directors then in
office. Special meetings of the shareholders may also be called by
shareholders in the manner provided in the Company’s Articles of
Incorporation. Business transacted at a special meeting of the
shareholders shall be limited to the purposes stated in the notice
thereof.
Section 3. Place of
Meeting. The Board of Directors may designate any place,
whether within or without the State of Florida unless otherwise prescribed by
law or by the Articles of Incorporation, as the place of meeting for any annual
meeting or for any special meeting of the shareholders. A waiver of notice
signed by all shareholders entitled to vote at a meeting may designate any
place, either within or without the State of Florida unless otherwise prescribed
by law or by the Articles of Incorporation, as the place for the holding of such
meeting. If no designation is made, the place of meeting shall be the
principal office of the corporation.
Section 4. Notice of
Meeting. Written or printed notice stating the place, day and
hour of the meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the meeting, by or at the
direction of the President or the Secretary, or the officer or persons that
called the meeting, to each shareholder of record entitled to vote at such
meeting, except that no
notice of a meeting need be given to any shareholder if such notice is not
required to be given under applicable law. Notices shall be delivered
in the manner provided under applicable law. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail, addressed to
the shareholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid. If the notice is mailed
less than 30 days before the date of the meeting, delivery must be by first
class mail.
Section 5. Waiver
of Call and Notice of Meeting. Call and notice of any
shareholders’ meeting may be waived by any shareholder before or after the date
and time set for the meeting. Such waiver must be in writing, signed by the
shareholder and delivered to the corporation for inclusion in the minutes or
filing with the corporate records. Neither the business to be transacted at nor
the purpose of any special or annual meeting need be specified in such waiver. A
shareholder’s attendance at a meeting (a) waives such shareholder’s ability
to object to lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting; and (b) waives such shareholder’s
ability to object to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
Section 6. Voting
Lists. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of, and the number and class and series of
shares held by, each. The list must be made available for inspection
by any shareholder for a period of ten (10) days prior to such meeting (or for
such shorter time as exists between the record date and the meeting) at any one
of the following locations: (a) the principal office of the
corporation; (b) at a place identified in the meeting notice in the city where
the meeting will be held; or (c) at the office of the corporation’s transfer
agent or registrar. The list shall be
subject to inspection by any shareholder or his agent or attorney during the
whole time of the meeting or any adjournment. The list shall be prima
facie evidence as to the identity of the shareholders entitled to examine such
list or to vote at any meeting of the shareholders.
Section 7. Quorum and
Adjournment.
(a)
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 applicable law provides
otherwise, a majority of the votes entitled to be cast on a matter by a voting
group constitutes a quorum of that voting group for action on that matter. 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.
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(b) If a
quorum is not present at a meeting, a majority of the shares represented at the
meeting, and who would be entitled to vote at a meeting if a quorum were
present, may adjourn the meeting from time to time. No new notice need be
distributed to shareholders so long as the new date, time and place for the
meeting are announced at the meeting before the adjournment is taken, and the
date of the adjourned meeting is no more than 120 days following the date fixed
for the original meeting; otherwise, a new record date must be fixed and notice
distributed in accordance with Section 4 above, except to the extent otherwise
provided by court order mandating adjournment to a date more than 120 days after
the date fixed for the original meeting. At any adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified or, in
the case of a special meeting for which a new notice was distributed, which is
described in the notice.
Section 8. Voting of
Shares. Except as provided in the Articles of Incorporation or
applicable law, and subject to the provisions of Article VIII of these Bylaws
regarding the fixing of a record date, each outstanding share, regardless of
class, is entitled to one vote on each matter voted on at a meeting of
shareholders.
Section 9. Proxies. A
shareholder, other person entitled to vote on behalf of a shareholder under
applicable law, or attorney in fact for a shareholder may vote the shareholder’s
shares in person or by proxy. A proxy may be appointed to vote or
otherwise act for the shareholder by any method authorized by applicable
law. Appointment of a proxy is effective when received by the
Secretary or other officer or agent of the corporation authorized to tabulate
votes. An appointment is valid for up to eleven (11) months unless the appointment
expressly provides for a longer period.
Section
10. Conduct of Meeting. The Chairman of the Board of
Directors, and in his or her absence, the Presiding Director (if any), and in
his or her absence, the President, and in his or her absence, any director
chosen by the directors present shall call a shareholders’ meeting to order and
shall act as presiding officer of the meeting. The Secretary of the
corporation shall act as secretary of all meetings of the shareholders, but, in
the absence of the Secretary, the presiding officer may appoint any other person
to act as secretary of the meeting. The presiding officer of the meeting shall
have broad discretion in conducting the meeting and determining the order of
business at a shareholders’ meeting. The presiding officer’s authority to
conduct the meeting shall include, but in no way be limited to, recognizing
shareholders entitled to speak, calling for the necessary reports, stating
questions and putting them to a vote, calling for nominations, and announcing
the results of voting. The presiding officer also shall take such actions as are
necessary and appropriate to preserve order at the meeting. The rules of
parliamentary procedure need not be observed in the conduct of shareholders’
meetings.
Section 11. Conduct of
Meetings by Remote Communication. The Board of Directors may adopt
guidelines and procedures for shareholders and proxy holders not physically
present at an annual or special meeting of shareholders to participate in the
meeting, be deemed present in person, vote, communicate and read or hear the
proceedings of the meeting substantially concurrently with such proceedings, all
by means of remote communication. The Board of Directors may adopt procedures
and guidelines for the conduct of an annual or special meeting solely by means
of remote communication rather than holding the meeting at a designated
place.
3
ARTICLE
III
Board of
Directors
Section 1. General
Powers. The business and affairs of the corporation shall be
managed by its Board of Directors.
Section 2. Number, Tenure
and Qualifications. The number of Directors of the corporation
shall be not less than one (1) nor more the fifteen (15), the number of the same
shall be fixed by the Board of Directors at any regular or special
meeting. Each Director shall hold office until the next annual
meeting of shareholders and until his successor has been qualified, unless
sooner removed by the shareholders at any general or special
meeting. None of the Directors need be residents of the State of
Florida.
Section 3. Annual
Meeting. After each annual meeting of shareholders, the Board
of Directors shall hold its annual meeting immediately following such annual
meeting of shareholders for the purpose of the election of officers and the
transaction of such other business as may come before the
meeting. The place of such annual meeting shall be the same as the
place of the meeting of shareholders which precedes it, or such other suitable
place as may be announced at such meeting of shareholders, and may be held
remotely as provided in Section 8 below. The place and time of such
meeting may also be fixed by written consent of the Directors.
Section 4. Regular
Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall be determined from
time to time by the Board of Directors.
Section 5. Special
Meetings. Special meetings of the Board of Directors may be
called by the Chairman of the Board, if there be one, or the President or any
two (2) Directors. The persons authorized to call special meetings of
the Board of Directors may fix the place for holding any special meetings of the
Board of Directors called by them.
Section 6.
Notice. Notice of the date, time and place of any special
meeting shall be given at least two (2) days prior thereto. Notice
may be communicated by any means permissible under applicable
law. Any Director may waive notice of such meeting, either before, at
or after such meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, 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 where a director states, at the
beginning of the meeting or promptly upon arrival at the meeting, any objection
to the transaction of any business because the meeting is not lawfully called or
convened.
4
Section 7. Quorum and
Adjournment. A majority of the Directors shall constitute a
quorum, but a smaller number may adjourn, as specified in Section 8(c)
below.
Section
8. Conduct of Meetings.
(a)
Presiding Officer. The Chairman of the Board shall preside at meetings of the
Board of Directors. If the Chairman is an employee of the corporation, the Board
of Directors shall elect from among its members a Presiding Director, who shall
preside at executive sessions of the Board at which employees of the corporation
or any of its subsidiaries shall not be present. The Chairman, and in his or her
absence, the Presiding Director, and in his or her absence, any director chosen
by the directors present, shall call meetings of the Board of Directors to order
and shall act as presiding officer of the meeting.
(b)
Minutes. The presiding officer shall appoint a person present to act as
secretary of the meeting. Minutes of any regular or special meeting of the Board
of Directors shall be prepared and distributed to each director.
(c)
Adjournments. 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
are 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.
(d)
Participation by Conference Call or Similar Means. The Board of Directors may
permit any or all directors to participate in a regular or a 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.
Section 9. Manner of
Acting. The act of the majority of the Directors present at a
meeting at which a quorum is present when the vote is taken shall be the act of
the Board of Directors, except as otherwise provided by applicable
law.
Section 10.
Vacancies. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
Directors though less than a quorum of the Board of Directors. A Director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office or, where a vacancy has been created by an increase in the
number of directors, until the next election of directors by the
shareholders. A vacancy that will occur at a specific later date (by
reason of a resignation effective at a later date, or otherwise) may be filled
before the vacancy occurs but the new director may not take office until the
vacancy occurs.
Section 11.
Compensation. The compensation of non-employee Directors for
their services as a Director may be fixed by resolution of the Board of
Directors, or by a duly authorized committee of the Board of
Directors. Unless otherwise determined by the Board of Directors or
such committee, Directors shall be paid their expenses of attendance at each
meeting of the Board of Directors or committee thereof. No payment
received by a Director for services as a Director shall preclude a Director from
serving the corporation in any other capacity.
5
Section 12. Presumption of
Assent. A director of the corporation who is present at a
meeting of its Board of Directors or a committee of the Board of Directors at
which action on any corporate matter is taken is deemed to have assented to the
action taken, unless the director: (a) objects at the beginning of the meeting
(or promptly upon his or her arrival) to holding it or transacting specified
business at the meeting; or (b) votes against or abstains from the action
taken.
Section 13. Informal Action
by Board. Any action required or permitted to be taken by any
provisions of law, of the Articles of Incorporation or of these Bylaws at any
meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if, prior to such action, a written consent thereto is signed
by all members of the Board or of such committee, as the case may be, setting
forth the actions of the Board or of the committee.
Section 14.
Removal. Any director may be removed, with or without cause,
by the shareholders at any general or special meeting of the shareholders
whenever, in the judgment of the shareholders, the best interests of the
corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person removed. This Bylaw
shall not be subject to change by the Board of Directors.
ARTICLE
IV
Officers
Section 1. Number and
Qualification. The officers of the corporation shall
include a Chairman of the Board, a Chief Executive Officer, a
President, a Chief Operating Officer, a Chief Financial Officer and a Secretary,
each of whom shall be elected by the Board of Directors. The Board of
Directors may also elect one or more Executive Vice Presidents, Senior Vice
Presidents, Vice Presidents, one or more Assistant Secretaries and Assistant
Treasurers and such other officers as the Board of Directors shall deem
appropriate. The Board of Directors shall designate from among the
officers it elects those who shall be the executive officers of the corporation
responsible for all policy making functions, under the direction of the Board of
Directors. Two (2) or more offices may be held by the same
person.
Section 2. Election and Term
of Office. The officers of the corporation shall be elected
annually by the Board of Directors at its first meeting after each annual
meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified, or until his death, or until he
shall resign or shall have been removed in the manner hereinafter
provided.
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Section 3.
Removal. Any officer may be removed at any time, with or
without cause, by the Board of Directors. An officer's removal does
not affect the officer's contract rights, if any, with the
corporation.
Section 4.
Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 5. Duties of
Officers. The Chairman of the Board of the corporation shall
preside at all meetings of the Board of Directors and of the shareholders which
he shall attend, as provided in Articles II and III above. The
Chairman or the President shall be the chief executive officer of the
corporation, as specified by the Board of Directors. The Secretary,
or such other officer as the Board may from time to time designate, shall be
responsible for preparing minutes of the directors’ and shareholders’ meetings
and for authenticating records of the corporation. Subject to the foregoing, the
officers of the corporation shall have such powers and duties as usually pertain
to their respective offices and such additional powers and duties specifically
conferred by law, by the Articles of Incorporation, by these Bylaws, or as may
be assigned to them from time to time by the Board of Directors or by any
officer authorized by the board of directors to prescribe the duties of other
officers.
Section 6. Executive
Compensation. The salaries and other compensation of the
officers shall be fixed from time to time by the Board of Directors, and no
officer shall be prevented from receiving such salary or compensation by reason
of the fact that he is also a Director of the corporation.
Section 7. Delegation of
Duties. In the absence of or disability of any officer of the
corporation or for any other reason deemed sufficient by the Board of Directors,
the Board may delegate his powers or duties to any other officer or to any other
Director for the time being.
Section 8. Limitation on
Executive Compensation. The corporation shall not award
bonuses to officers, directors and/or other employees to avoid or satisfy margin
calls. Severance, separation and/or similar payments made to the
Chief Executive Officer, as well as all other officers at the Vice President
level or higher, shall be limited to the equivalent of such officer’s total
salary for the three calendar years immediately preceding the year in which such
payment is determined, including bonuses and guaranteed benefits.
ARTICLE
V
Executive and Other
Committees
Section 1. Creation of
Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate an Executive Committee and one or
more other committees, each to consist of one (1) or more of the Directors of
the corporation.
Section 2. Executive
Committees. The Executive committee, if there shall be one,
shall consult with and advise the officers of the corporation in the management
of its business and shall have and may exercise, to the extent provided in the
resolution of the Board of Directors creating such Executive Committee, such
powers of the Board of Directors as can be lawfully delegated by the
Board.
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Section 3. Other
Committees. Such other committees shall have such functions
and may exercise the powers of the Board of Directors as can be lawfully
delegated and to the extent provided in the resolution or resolutions creating
such committee or committees.
Section 4. Meetings of
Committees. Regular meetings of the Executive Committee and
other committees may be held without notice at such time and at such place as
shall from time to time be determined by the Executive Committee or such other
committees. Special meetings of the Executive Committee or such other
committees may be called by any member thereof upon two (2) days’ notice to each
of the other members of such committee, or on such shorter notice as may be
agreed to in writing by each of the other members of such
committee. Notice may be communicated by any means permissible under
applicable law, including oral notice where reasonable under the
circumstances. Notice may be waived as provided in Section 6 of
Article III of these Bylaws (pertaining to notice for Directors'
meetings). Attendance at a meeting will constitute waiver of notice
and of the right to any objections to the extent provided in Section 6 of
Article III. In all other respects, committee meetings shall be
conducted in the same manner and in accordance with the same procedural rules
applicable to the Board of Directors; provided that, the Board of Directors may
adopt a charter for any committee specifying rules for the conduct of meetings
and business of the committee and such other matters as the Board may designate,
in which case the provisions of such charter shall supersede the provisions of
this Section 4.
Section 5. Vacancies on
Committees. Vacancies on the Executive Committee or on such
other committees may be filled by the Board of Directors then in office at any
regular or special meeting.
Section 6. Quorum of
Committees. At all meetings of the Executive Committee or such
other committees, a majority of the committee's members then in office shall
constitute a quorum for the transaction of business.
Section 7. Manner of Acting
of Committee. The acts of a majority of the members of the
Executive Committee, or such other committees, present at any meeting at which
there is a quorum, shall be the act of such committee.
Section 8. Minutes of
Committees. The Executive Committee, if there shall be one,
and such other committees shall keep regular minutes of their proceedings and
report the same to the Board of Directors when required.
Section 9.
Compensation. Members of the Executive Committee and such
other committees may be paid compensation in accordance with the provisions of
Section 11 of Article III (pertaining to compensation of
Directors).
8
ARTICLE
VI
Indemnification of Director
and Officers
Section 1.
General.
(a) Subject to the principles set forth
in Section 1(b) below, the corporation shall be obligated to indemnify any
director or officer of the corporation who is or was a party, or is threatened
to be made a party, to any Proceeding (other than an action by or in the right
of the corporation) by reason of the fact that such person is or was a director
or officer of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; provided that in no event
shall the corporation be obligated to indemnify any director or officer for any
liability resulting from, or advance expenses in connection with, any Proceeding
involving liability under Section 16(b) of the Securities Exchange Act of
1934. A “Proceeding” includes any threatened, pending or completed
action, suit or other type of proceeding, whether civil, criminal,
administrative, investigative or otherwise, and whether formal or
informal.
(b) Any person for whom
indemnification is mandated under Section 1(a) above shall be indemnified
against all liabilities, including obligations to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to any employee
benefit plan), and expenses (including attorneys’ fees, paralegals’ fees and
court costs) actually and reasonably incurred in connection with any such
Proceeding, including any appeal thereof; provided that, except as provided in
Section 8 below with respect to proceedings to enforce rights to indemnification
or advancement of expenses, the corporation shall indemnify any such indemnitee
in connection with a Proceeding (or part thereof) initiated by such
indemnitee only if such Proceeding (or part thereof) was authorized by the Board
of Directors of the corporation, except that no such authorization shall be
required in the case of counterclaims which constitute claims of the indemnitee
that would be forfeited unless asserted in the Proceeding. Indemnification shall
be available only if the person to be indemnified acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any such action, suit or other proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner that such person reasonably believed to be
in, or not opposed to, the best interests of the corporation or, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
person’s conduct was unlawful.
Section 2. Actions By Or In
The Right Of The Corporation.
(a) Subject to the principles set
forth in paragraphs (b) and (c) of Section 2 below, the corporation shall be
obligated to indemnify any director or officer of the corporation who is or was
a party, or is threatened to be made a party, to any Proceeding brought by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director or officer of the corporation or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise; provided that in no event shall the corporation be obligated
to indemnify any director or officer for any liability resulting from, or
advance expenses in connection with, any Proceeding involving liability under
Section 16(b) of the Securities Exchange Act of 1934.
9
(b)
Any person for whom indemnification is mandated under Section 2(a) above shall
be indemnified against expenses (including attorneys’ fees, paralegals’ fees and
court costs) and amounts paid in settlement not exceeding, in the judgment of
the Board of Directors, the estimated expense of litigating the Proceeding to
conclusion, that are actually and reasonably incurred in connection with the
defense or settlement of such Proceeding, including any appeal thereof; provided
that, except as provided in Section 8 below with respect to proceedings to
enforce rights to indemnification or advancement of expenses, the corporation
shall indemnify any such indemnitee in connection with a Proceeding (or part
thereof) initiated by such indemnitee only if such Proceeding (or part thereof)
was authorized by the Board of Directors of the corporation, except that no such
authorization shall be required in the case of counterclaims which constitute
claims of the indemnitee that would be forfeited unless asserted in the
Proceeding. Indemnification shall be available only if the person to
be indemnified acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the
corporation.
(c) Notwithstanding the foregoing, no
indemnification shall be made under this Section 2 in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
unless, and only to the extent that, the court in which such Proceeding was
brought, or any other court of competent jurisdiction, shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnification for such expenses as such court shall deem proper.
Section 3. Advancement Of
Expenses. Expenses (including reasonable attorneys’ fees, paralegals’
fees and court costs) incurred by a director or officer in defending a
Proceeding referred to in Section 1 or Section 2 of this Article VI shall be
paid by the corporation in advance of the final disposition thereof upon receipt
by the corporation of:
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(a)
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a
representation by or on behalf of such director or officer that all
actions taken by him or her which form the basis of the Proceeding met the
applicable standard of conduct set forth in Section 1 or 2 above, as
applicable; and
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(b)
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an
undertaking by or on behalf of such director or officer to repay such
amount if he or she is ultimately found not to be entitled to
indemnification by the corporation pursuant to this Article
VI.
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Section 4. Authorization And
Procedural Matters.
(a) Indemnification pursuant to this
Article VI shall be deemed “authorized” for purposes of Section 607.0850(8),
Florida Statutes, and any successor thereto, upon adoption of this Bylaw,
subject to a determination that indemnification is proper as provided in Section
4(b).
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(b) Except as otherwise provided by
order of a court of competent jurisdiction, the corporation shall not be
obligated to indemnify any officer or director under Section 1 or 2 of this
Article VI until a determination has been made that: (a) indemnification is
proper in the circumstances because the indemnified person has met the
applicable standard of conduct set forth in Section 1 or Section 2 of this
Article VI; and (b) indemnification is not prohibited by applicable
law.
(c) The Board of Directors
may establish reasonable procedures for the submission of claims for
indemnification and advancement of expenses pursuant to this Article VI,
determination of the entitlement of any person thereto, and review of any such
determination. This Article VI is adopted pursuant to the authority
granted by Section 607.0850(7), Florida Statutes, and accordingly, it is
intended that the authorization and determination procedures set forth in
Section 607.0850(4) and (5) shall not be mandatory to the Board.
Section 5. Nonexclusivity
And Limitations. The indemnification and advancement of expenses provided
pursuant to this Article VI shall not be deemed exclusive of any other rights to
which a person may be entitled under any law, the corporation’s Articles of
Incorporation, Bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise, both as to action in such person’s official capacity
and as to action in any other capacity while holding office with the
corporation. The Board of Directors may, at any time, approve indemnification of
or advancement of expenses to any other person that the corporation has the
power by law to indemnify, including, without limitation, employees and agents
of the corporation.
Section 6. Continuation Of
Indemnification Right.
(a) Indemnification and advancement of
expenses as provided for in this Article VI shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
heirs, executors, and administrators of such person.
(b) For purposes of this Article VI,
the term “corporation” includes, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director or
officer of a constituent corporation, or is or was serving at the request of a
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, is in the
same position under this Article VI with respect to the resulting or surviving
corporation as such person would have been with respect to such constituent
corporation if its separate existence had continued.
Section 7. Insurance.
The corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the corporation, or who is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity or arising out of such person’s status as
such, whether or not the corporation would have the power to, or be obligated
to, indemnify such person against the liability under Section 1 or Section 2 of
this Article VI or under applicable law.
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Section 8. Right
Of Indemnitee To Bring Suit. If a claim under this Article VI
is not paid in full by the corporation within 60 days after a written claim has
been received by the corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20 days,
the indemnitee may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. If successful in whole or in
part in any such suit, or in a suit brought by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or advancement of expenses hereunder it shall be a
defense that the indemnitee has not met any applicable standard set forth in
this Article VI or that indemnification or advancement of expenses is
impermissible under applicable law. In any suit brought by the
corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the corporation shall be entitled to recover such expenses upon a
final adjudication that the indemnitee has not met any applicable standard for
indemnification set forth in this Article VI or that indemnification is
impermissible under applicable law. Neither the failure of the
corporation (including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its shareholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set forth in this Article
VI, nor an actual determination by the corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal
counsel, or its shareholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article VI or otherwise shall be on the
corporation.
Section 9. Nature
Of Rights. The rights to indemnification and to the
advancement of expenses conferred upon indemnitees in this Article VI (i) shall
be contract rights based upon good and valuable consideration, pursuant to which
an indemnitee may bring suit as if the provisions of this Article VI were set
forth in a separate written contract between the indemnitee and the corporation,
(ii) are intended to be retroactive with respect to indemnitees who are
currently serving as officers and directors on the date this Bylaw is first
adopted, and with respect to such persons, these rights shall be available with
respect to events occurring prior to the adoption of this Article VI, (iii)
shall continue as to an indemnitee who has ceased to be a director or officer of
the corporation, and shall inure to the benefit of the indemnitee’s heirs,
executors and administrators, and (iv) shall be deemed to have fully vested at
the time the indemnitee first assumed his or her office with the
corporation. No amendment, alteration or repeal of this Article VI
shall adversely affect any right of an indemnitee or his or her successors, nor
shall any such amendment limit or eliminate any such right with respect to any
Proceeding involving an occurrence or alleged occurrence of any action or
omission to act that took place prior to such amendment, alteration or repeal,
regardless of whether such Proceeding is brought before or after the indemnitee
has ceased to be a director or officer of the corporation.
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Section
10. Severability. If any provision or provisions of
this Article VI shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Article VI shall not in any way be affected or
impaired thereby; and (ii) to the fullest extent permitted by law, the
provisions of this Article VI (including, without limitation, each such portion
of this Article VI containing any such provisions held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 11. Settlement Of
Claims. The corporation shall not be liable to indemnify any
indemnitee under this Article VI for any amounts paid in settlement of any
proceeding (or part thereof) effected without the corporation’s written consent,
which consent shall not be unreasonably withheld, or for any judicial award if
the corporation was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such proceeding.
Section 12.
Subrogation. In the event of payment under this Article VI,
the corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the indemnitee, who shall execute all papers required and
shall do everything that may be reasonably necessary to secure such rights,
including without limitation the execution of such documents necessary to enable
the corporation effectively to bring suit to enforce such rights.
Section 13. Secondary
Obligation. The corporation’s indemnification of any person
who was or is serving at its request with another corporation, partnership,
joint venture, trust or other entity (including serving as a trustee or
fiduciary of any employee benefit plan), shall be reduced by any amounts such
person may collect as indemnification from such other party.
Section 14. No Duplication
Of Payments. The corporation shall not be liable under this
Bylaw to make any payment with respect to the liability of a person to the
extent such person has otherwise actually received payment.
ARTICLE
VII
Stock
Section 1. Certificates for
Shares; Uncertificated Shares.
(a)
Shares may but need not be represented by certificates. The Board of
Directors may authorize the creation of uncertificated shares either by original
issue or in substitution for shares previously represented by certificates, and
a particular class and series of shares may be entirely represented by
certificates, entirely uncertificated, or represented partly by each. The rights
and obligations of shareholders shall be identical whether or not their shares
are represented by certificates. No shares for which a certificate is
outstanding shall be treated as uncertificated, and until such certificate is
surrendered, such shares shall not be transferable on the books of the
corporation without due presentation of the certificate.
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(b) If
shares are represented by certificates, each certificate shall be in such form
as the Board of Directors may from time to time prescribe, signed (either
manually or in facsimile) by the President or a Vice President. Such
certificates may also be signed (either manually or in facsimile) by the
Secretary or an Assistant Secretary and sealed with the seal of the corporation
or its facsimile. Any certificate must exhibit the holder’s name,
certify the number of shares owned and state such other matters as may be
required by law. The certificates shall be numbered and entered on the books of
the corporation as they are issued. Authorization by the Board of the
issuance of uncertificated shares will not affect shares already represented by
a certificate until the certificate is surrendered to the
corporation.
(c) If
shares are not represented by certificates, then, within a reasonable time after
issue or transfer of shares without certificates, the corporation shall send the
shareholder a written statement in such form as the Board of Directors may from
time to time prescribe, certifying as to the number of shares owned by the
stockholder and as to such other information as would have been required by
applicable law to be on certificates for such shares.
(d) If
any person who signed (either manually or in facsimile) a share certificate no
longer holds office when the certificate is issued, the certificate shall
nevertheless be valid.
Section 2. Transfer of
Shares. Transfers of shares of the corporation shall be made
upon its books by the holder of the shares in person or by his lawfully
constituted representative, upon surrender of the certificate of stock for
cancellation if such shares are represented by a certificate, or by delivery to
the corporation of such evidence of transfer as may be required by the
corporation if such shares are not represented by certificates. The
person in whose name shares stand on the books of the corporation shall be
deemed by the corporation to be the owner thereof for all purposes and the
corporation shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person whether or not it shall
have express or other notice thereof, save as expressly provided by the laws of
the State of Florida.
Section 3. Lost
Certificate. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
their certificate of stock to be lost or destroyed. When authorizing
such issue of new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed. However, in its
sole discretion, the Board of Directors may choose not to direct the creation of
a new certificate, but instead direct that upon receipt of such affidavit, bond
and other acts as it may require as set forth above, the shares represented by
the lost or destroyed certificate shall thenceforth be deemed uncertificated
shares. Within a reasonable time thereafter, the corporation will
send the shareholder a written statement as required by applicable law and
described in Section 1(c) above.
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ARTICLE
VIII
Record
Date
Section 1. In
General. The Board of Directors may fix in advance a date as the record
date for the purpose of determining shareholders entitled to notice of a
shareholders’ meeting, entitled to vote, or take any other action. 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 or a date more than
seventy (70) days before the date of meeting or action requiring a determination
of shareholders.
Section
2. Special Meeting. The record date for determining
shareholders entitled to demand a special meeting shall be the close of business
on the date the first shareholder delivers his or her demand to the
corporation.
Section
3. Absence of Board Determination for Shareholders’ Meeting.
If the Board of Directors does not determine the record date for determining
shareholders entitled to notice of and to vote at an annual or special
shareholders’ meeting, such record date shall be the close of business on the
day before the first notice with respect thereto is delivered to shareholders in
accordance with Section 4 of Article II.
Section
4. Adjourned Meeting. A record date for determining
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 120 days after the date fixed for the original meeting.
ARTICLE
IX
Dividends
The Board
of Directors may from time to time declare, and the corporation may pay,
dividends on its outstanding shares of capital stock in the manner and upon the
terms and conditions provided by the Articles of Incorporation and by
law. Dividends may be paid in cash or property, including shares of
stock or other securities of the corporation, subject to the provisions of the
Articles of Incorporation and applicable law.
ARTICLE
X
Fiscal
Year
The
fiscal year of the corporation shall be the twelve (12) month period selected by
the Board of Directors as the taxable year of the corporation for federal income
tax purposes, unless the Board of Directors establishes a different fiscal
year.
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ARTICLE
XI
Seal
The
corporate seal shall bear the name of the corporation, which shall be between
two concentric circles, and in the inside of the inner circle shall be the
calendar year of incorporation.
ARTICLE
XII
Stock in Other
Corporations
Unless
otherwise directed by the Board of Directors, the Chief Executive Officer shall
have power to vote and otherwise act on behalf of the corporation, in person or
by proxy, at any meeting of shareholders of, or with respect to any action of
shareholders of, any other corporation in which this corporation may hold
securities and to otherwise exercise any and all rights and powers that the
corporation may possess by reason of its ownership of securities in other
corporations.
ARTICLE
XIII
Amendments
These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by the Board of Directors or the
shareholders, provided that the Board of Directors may not amend or repeal any
Bylaw or Bylaws if: (a) the Articles of Incorporation or applicable
law reserves the power to amend the Bylaws generally or the particular Bylaw or
Bylaws in question exclusively to the shareholders; (b) the shareholders, in
taking action with respect to the Bylaws generally or a particular Bylaw
provision, provide expressly that the board of Directors may not amend or repeal
the Bylaws or that Bylaw provision; or (c) the Bylaw or Bylaws in
question have been altered, amended or adopted by a vote of the shareholders,
until a period of two (2) years shall have expired since such vote of the
shareholders. Any Bylaw or amendment to a Bylaw adopted by the Board
of Directors may be altered, amended or repealed by vote of the shareholders
entitled to vote thereon, or a new Bylaw in lieu thereof may be adopted by the
shareholders.
ARTICLE
XIV
Advance Notice of
Shareholder Nominations and Proposals
Section 1. Shareholder
Proposals Relating to Nominations for and Election of
Directors. Only persons who are nominated in accordance with
the procedures set forth in these bylaws shall be eligible to serve as
directors. Nominations of persons for election to the Board of
Directors may be made at an annual meeting of shareholders, (a) pursuant to the
Corporation’s notice with respect to such meeting by or at the direction of the
Board of Directors, or (b) by any shareholder of record of the Corporation who
(1) was a shareholder of record at the time of the giving of the notice provided
for in the following paragraph, (2) is entitled to vote at the meeting and (3)
has complied with the notice procedures set forth in this Section.
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For nominations to be properly brought
before an annual meeting by a shareholder pursuant to clause (b) of the
foregoing paragraph, (1) the shareholder must have given timely notice thereof
in writing to the Secretary of the Corporation, (2) if the shareholder, or any
Shareholder Associated Person, as that term is defined in this Article, on whose
behalf any such nomination is made, has provided the Corporation with a Director
Solicitation Notice, as that term is defined in this paragraph, such shareholder
or any such Shareholder Associated Person must have (i) delivered a proxy
statement and form of proxy to holders of a least the percentage of the
Corporation’s voting shares sufficient to elect the nominee or nominees proposed
to be nominated by such shareholder, and (ii) included in the materials
accompanying such notice to the Corporation, the Director Solicitation Notice
and any proxy statement and form of proxy utilized or to be utilized by such
person, and (3) if no Director Solicitation Notice relating thereto has been
timely provided pursuant to this Section, the shareholder or any such
Shareholder Associated Person proposing such nomination must not have solicited,
and must represent that he, she or it will not solicit, a number of proxies
sufficient to have required the delivery of such a Director Solicitation Notice
under this Article. To be timely, a shareholder’s notice and the
required accompanying materials shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than ninety (90) nor
more than one hundred twenty (120) days prior to the first anniversary (the
“ Anniversary
”) of the date of the preceding year’s annual meeting of shareholders; provided,
however, that if the date of the annual meeting is advanced more than thirty
(30) days prior to or delayed by more than sixty (60) days after the
Anniversary, notice by the shareholder to be timely must be so delivered not
later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the 10th day
following the day on which public announcement of the date of such meeting is
first made. Such shareholder’s notice shall set forth, (a) as to each
person whom the shareholder proposes to nominate for election or reelection as a
director all information relating to such person as would be required to be
disclosed in solicitations of proxies for the election of such nominees as
directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the “
Exchange Act”), and shall contain such person’s written consent to be
named in the proxy statement as a nominee and to serve as a director if elected,
(b) as to the shareholder giving the notice and any Shareholder Associated
Person, if any, on whose behalf the nomination is made, (i) the name and address
of such shareholder, and of any such Shareholder Associated Person, as they
appear on the Corporation’s books, (ii) the class and number of shares of the
Corporation that are owned beneficially and of record by the shareholder and any
such Shareholder Associated Person, (iii) any option, warrant, convertible
security, stock appreciation right, derivative positions, hedging positions,
transaction or series of transactions, or similar right with an exercise or
conversion privilege, or a settlement payment or mechanism at a price related to
any class or series of shares of the Corporation, whether or not such
instrument, position or right shall be subject to settlement in the underlying
class or series of capital stock of the Corporation or otherwise (a “Derivative
Instrument”) held or beneficially held by such shareholder and any such
Shareholder Associated Person and any other direct or indirect opportunity to
profit or share in any profit derived from any increase or decrease in the value
of shares of the Corporation (along with a description of all such items
described in this subsection (iii) in sufficient detail to explain such items),
(iv) any proxy, contract, arrangement, understanding or relationship pursuant to
which such shareholder or any such Shareholder Associated Person has a right to
vote any shares of any security of the Corporation (along with a description of
such proxy, contract, arrangement, understanding or relationship in sufficient
detail to explain such voting rights of such securities and the number of
securities represented by such proxy, contract, arrangement, understanding or
relationship), (v) any short interest in any security of the Corporation by such
shareholder or any such Shareholder Associated Person (for purposes of these
Bylaws a person shall be deemed to have a short interest in a security if such
person directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security including through
borrowing or lending of shares), (vi) any rights to dividends on the shares of
the Corporation owned beneficially by such shareholder or any such Shareholder
Associated Person that are separated or separable from the underlying shares of
the Corporation, (vii) any performance-related fees (other than an asset based
fee) that such shareholder or Shareholder Associated person is entitled to based
on any increase or decrease in the value of shares of the Corporation, or
Derivative Instruments, if any, as of the date of such notice (along with a
description thereto of all such items described in this subsection (vii) in
sufficient detail to explain such items), (viii) a description of any
arrangement or understanding between each person so proposed for nomination and
such shareholder or any such Shareholder Associated Person with respect to
actions to be proposed or taken by such person if elected director, (ix) a
description of all direct and indirect compensation and other mutual monetary
contracts, agreements, arrangements and understandings during the past three
years, any other mutual relationships between or among such shareholder or any
such Shareholder Associated Person, if any, or others acting in concert
therewith, on the one hand, and each proposed nominee, and his or her respective
affiliates and associates, or others acting in concert therewith, on the other
hand, including without limitation all information that would be required to be
disclosed pursuant to Rule 404 promulgated under Regulation S-K of the Exchange
Act if the shareholder or such Shareholder Associated Person on whose behalf the
nomination is made, if any, was the “registrant” for purposes of such rule and
the nominee was a director or executive officer of such registrant, (x) whether
such shareholder or any such Shareholder Associated Person has delivered or
intends to deliver a proxy statement and form of proxy to holders of a
sufficient number of holders of the Corporation’s voting shares to elect such
nominee or nominees (the notice described in this sentence, a “Director Solicitation
Notice”), and (xi) with respect to each nominee for election or
reelection to the Board of Directors include a completed and signed
questionnaire, representation and agreement required by Section 6 of this
Article XIV.
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No person shall be eligible to serve as
a director of the Corporation unless nominated in accordance with the procedures
set forth in this section or in Section 2.
Section 2. Special
Meetings. Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders at which directors
are to be elected pursuant to the Corporation’s notice of meeting only (a) by or
at the direction of the Board or (b) by any shareholder of record of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this paragraph, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this paragraph. Nominations
by shareholders of persons for election to the Board may be made at such a
special meeting of shareholders only if the shareholder’s notice required in
Section 1 (along with all information required in Section 1 to be delivered with
such notice) shall be delivered to the Secretary of the Corporation not later
than the close of business on the later of the 90th day
prior to such special meeting or the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board to be elected at such
meeting.
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Business other than nominations of
persons for election to the Board of Directors may only be conducted at a
special meeting of shareholders if (a) brought before the meeting pursuant to
the Corporation’s notice of meeting by or at the direction of the Board of
Directors or (b) brought before a special meeting called at the request in
writing of shareholders as set forth in Company’s Certificate of Incorporation,
by any shareholder of record of the Corporation who (i) was a shareholder of
record at the time that the written demand for such meeting was made upon the
Corporation and who shall be entitled to vote at such meeting and (ii) who
delivers the shareholder’s notice required in Section 4 (along with all
information required in Section 4 to be delivered with such notice) not later
than the close of business on the later of the 90th day
prior to such special meeting or the 10th day
following the day on which the public announcement is first made of the date of
the special meeting.
Section 3. Increase in
Number of Directors. Notwithstanding anything in the second
sentence of the second paragraph of Section 1 of this Article XIV to the
contrary, in the event that the number of directors to be elected to the Board
is increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board made by the Corporation
at least fifty-five (55) days prior to the Anniversary, a shareholder’s notice
required by this Article shall also be considered timely, but only with respect
to nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
Section 4. Shareholder
Proposals Relating to Business Other Than Nominations for and Election of
Directors. Proposals of business to be transacted by the
shareholders (other than nominations for and elections of candidates for
directors, which is covered by Section 1 of this Article XIV), may be made at an
annual meeting of shareholders only (a) pursuant to the Corporation’s notice
with respect to such meeting by or at the direction of the Board of Directors,
or (b) by any shareholder of record of the Corporation who (1) was a shareholder
of record at the time of the giving of the notice provided for in the following
paragraph, (2) is entitled to vote at the meeting and (3) has complied with the
notice procedures set forth in this Section.
For business to be properly brought
before an annual meeting by a shareholder pursuant to clause (b) of the
foregoing paragraph, (1) the shareholder must have given timely notice thereof
in writing to the Secretary of the Corporation, (2) such business must be a
proper matter for shareholder action under the Florida Business Corporation
Code, (3) if the shareholder, or any Shareholder Associated Person, on whose
behalf any such proposal is made, has provided the Corporation with a Proposal
Solicitation Notice, as that term is defined in this paragraph, such shareholder
or any such Shareholder Associated Person must have, (i) delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation’s voting shares required under applicable law to carry any such
proposal, and (ii) included in the materials accompanying such notice to the
Corporation, the Proposal Solicitation Notice and any proxy statement and form
of proxy utilized or to be utilized by such person and (4) if no Proposal
Solicitation Notice relating thereto has been timely provided pursuant to this
Section, the shareholder or any such Shareholder Associated Person proposing
such business must not have solicited, and must represent that he, she or it
will not solicit, a number of proxies sufficient to have required the delivery
of such a Proposal Solicitation Notice under this Section. To be
timely, a shareholder’s notice and the required accompanying materials shall be
delivered to the Secretary at the principal executive offices of the Corporation
not less than ninety (90) nor more than one hundred twenty (120) days prior to
the Anniversary of the preceeding year’s annual meeting of shareholders;
provided, however, that if the date of the annual meeting is advanced more than
thirty (30) days prior to or delayed by more than sixty (60) days after the
Anniversary, notice by the shareholder to be timely must be so delivered not
later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the 10th day
following the day on which public announcement of the date of such meeting is
first made. Such shareholder’s notice shall set forth, (a) as to each
and every matter of business that the shareholder proposes to bring before the
meeting, a brief description of such business and the reasons for conducting
such business at the meeting, (b) the name and address, as they appear on the
Corporation’s books, of such shareholder and any such Shareholder Associated
Person, (c) as to the shareholder giving the notice and any such Shareholder
Associated Person, on whose behalf the proposal is made, (i) the class and
number of shares of the Corporation that are owned beneficially and of record by
such shareholder and any such Shareholder Associated Person, (ii) any Derivative
Instrument held or beneficially held by the shareholder and any such Shareholder
Associated Person, any other direct or indirect opportunity to profit or share
in any profit derived from any increase or decrease in the value of shares of
the Corporation (along with a description of all such items described in this
subsection (ii) in sufficient detail to explain such items), (iii) any proxy,
contract, arrangement, understanding or relationship pursuant to which such
shareholder or any such Shareholder Associated Person has a right to vote shares
of any security of the Corporation (along with a description of such proxy,
contract, arrangement, understanding or relationship in sufficient detail to
explain such voting rights of such securities and the number of securities
represented by such proxy, contract, arrangement, understanding or
relationship), (iv) any short interest in any security of the Corporation by
such shareholder or Shareholder Associated Person, (v) any rights to dividends
on the shares of the Corporation owned beneficially by such shareholder or any
such Shareholder Associated Person that are separated or separable from the
underlying shares of the Corporation, (vi) any performance related fees (other
than an asset earned fee) that such shareholder or Shareholder Associated Person
is entitled to based on any increase or decrease of shares of the Corporation,
or Derivative Instruments, if any, as of the date of such notice (along with a
description of all such items described in this subsection (vi) in sufficient
detail to explain such item) and (vii) whether such shareholder or any such
Shareholder Associated Person has delivered or intends to deliver a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation’s voting shares required under applicable law to carry the proposal
(the notice described in this sentence, a “Proposal Solicitation
Notice ”) and (d) any material interest of the shareholder or any such
Shareholder Associated Person in such matter of business.
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Section 5. Compliance with
Procedures. Only persons nominated in accordance with the
procedures set forth in this Article XIV shall be eligible to serve as directors
and only such business shall be conducted at an annual or special meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Article. The chairman of the meeting
shall have the power and the duty to determine whether a nomination or any
business proposed to be brought before the meeting has been made in accordance
with the procedures set forth in these Bylaws and, if any proposed nomination or
business is not in compliance with these Bylaws, to declare that such defective
proposed nomination or business shall not be presented for shareholder action at
the meeting and shall be disregarded.
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Section 6. Submission of
Questionnaire, Representation and Agreement. To be eligible to be a
nominee for election or reelection as a director of the Corporation pursuant to
Section 1(b) or 2(b), a person must deliver (in accordance with the time periods
prescribed for delivery of notice under Section 1, or if applicable, Section 3,
of this Article) to the Secretary of the Corporation a written questionnaire
with respect to the background and qualification of such person and the
background of any other person or entity on whose behalf the nomination is being
made (which questionnaire shall be provided by the Secretary upon written
request) and a written representation and agreement (in the form provided by the
Secretary upon written request) that such person (A) is not and will not become
a party to (1) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such
person, if elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting Commitment”)
that has not been disclosed to the Corporation or (2) any Voting Commitment that
could limit or interfere with such person’s ability to comply, if elected as a
director of the Corporation, with such person’s fiduciary duties under
applicable law, (B) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement
or indemnification in connection with service or action as a director that has
not been disclosed therein, (C) in such person’s individual capacity and on
behalf of any person or shareholder or Shareholder Associated Person, would be
in compliance, if elected as a director of the Corporation, and will comply with
all applicable publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the
Corporation.
Section 7.
General. For purposes of this Article, “public announcement”
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act. For purposes of this
Article, a “Shareholder Associated Person” of any shareholder means: (a) any
person controlling, directly or indirectly, or acting in concert with, such
shareholder, (b) any beneficial owner of shares of stock of the Corporation
owned of record or beneficially by such shareholder; and (c) any person
controlling, controlled by or under common control with such Shareholder
Associated Person.
Notwithstanding the foregoing
provisions of this Article XIV, a shareholder must also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to matters set forth in this Article
XIV. Nothing in this Article XIV shall be deemed to affect any rights
of shareholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or the rights of any
holders of preferred stock if and to the extent required by law, the Articles of
Incorporation or these Bylaws. No references in this Article XIV to
the Exchange Act and the rules and/or regulations promulgated thereunder are
intended to, and they shall not, limit the requirements of this Article XIV
applicable to nominations or proposals as to any other business to be considered
pursuant to this Article XIV, regardless of the shareholder’s intent to utilize
Rule 14a-8 under the Exchange Act or other federal laws or rules.
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ARTICLE
XV
Control Share
Acquisition
In
accordance with Section 607.0902(5) of the Florida Business Corporation Act,
section 607.0902 of the Florida Business Corporation Act shall not apply to
control-share acquisitions of shares of the capital stock of the
corporation.
ARTICLE
XVI
Emergency
Bylaws
Section 1. Scope of
Emergency Bylaws. The emergency Bylaws provided in this Article XVI shall
be operative during any emergency, notwithstanding any different provision set
forth in the preceding articles of these Bylaws or in the Company’s Articles of
Incorporation. For purposes of the emergency Bylaw provisions of this Article,
an emergency shall exist if a quorum of the corporation’s directors cannot
readily be assembled because of some catastrophic event. To the extent not
inconsistent with the provisions of this Article, the provisions contained
elsewhere in these Bylaws shall remain in effect during such
emergency. Upon termination of the emergency, these emergency Bylaws
shall cease to be operative.
Section 2. Call and
Notice of Meeting. During any emergency, a meeting of the Board of
Directors may be called by any officer or director of the corporation. Notice of
the date, time and place of the meeting shall be given by the person calling the
meeting to such of the directors as it may be feasible to reach by any available
means of communication. Such notice shall be given as far in advance of the
meeting as circumstances permit in the judgment of the person calling the
meeting.
Section 3. Quorum and
Voting. At any such meeting of the Board of Directors, a quorum shall
consist of any one or more directors, and the act of the majority of the
directors present at such meeting shall be the act of the
corporation. For purpose of this Section, the term “director” shall
include any Temporary Director as defined in Section 4, including the President
or his successor as specified in Section 4(b).
Section 4. Appointment
of Temporary Directors.
During
the course of an emergency, “Temporary Directors” may be appointed as
follows:
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(a)
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If
no directors are available to call or attend a meeting of directors during
an emergency, the President or his successor shall be deemed a Temporary
Director of the corporation, and such President or his successor, as the
case may be, shall have the right to appoint additional Temporary
Directors to serve with him on the Board of Directors of the corporation
during the term of the emergency.
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(b)
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The
director or directors who are able to be assembled at a meeting of
directors during an emergency may appoint, if such directors deem it
necessary or desirable, one or more Temporary Directors to serve as
directors of the corporation during the term of any
emergency.
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(c)
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Temporary
Directors shall have all of the rights, duties and obligations of
directors appointed pursuant to Article III of these Bylaws; provided, however, that
a Temporary Director may be removed from the Board of Directors at any
time by the person or persons responsible for appointing such Temporary
Director, or by vote of the majority of the shareholders present at any
meeting of the shareholders during an emergency; and provided further, that
in any event, the Temporary Director shall automatically be deemed to have
resigned from the Board of Directors upon the termination of the emergency
in connection with which the Temporary Director was
appointed.
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Section 5. Change of
Principal Office. The Board of Directors may, either before or during any
such emergency, and effective during such emergency, change the principal office
of the corporation or designate several alternative head offices or regional
offices, or authorize the officers of the corporation to do so.
Section 6. Limitation
of Liability. No officer, director or employee acting in accordance with
these emergency bylaws during an emergency shall be liable except for willful
misconduct.
Section 7. Repeal and
Change. These emergency bylaws shall be subject to repeal or change by
further action of the Board of Directors or by action of the shareholders, but
no such repeal or change shall modify the provisions of Section 6 above
with regard to actions taken prior to the time of such repeal or change. Any
amendment of these emergency bylaws may make any further or different provision
that may be practical or necessary under the circumstances of the
emergency.
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