Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Wci Communities, Inc. Etal 272 1.46M
2: EX-1.1 Purchase Agreement 50 199K
3: EX-3.1 Certificate of Inc.: Wci Communities as Amended 19 73K
12: EX-3.10 C.O.I.: Wi Ultracorp of Florida, Inc. 1 29K
13: EX-3.11 A.O.I.: Bay Colony of Naples, Inc. 2 32K
14: EX-3.12 A.O.I.: Bay Colony Realty Associates, Inc. 1 26K
15: EX-3.13 A.O.I.: Communities Amenities, Inc. 3 32K
16: EX-3.14 A.O.I.: Communities Home Builders, Inc. 3 32K
17: EX-3.15 A.O.I.: Coral Ridge Communities, Inc. 4 37K
18: EX-3.16 A.O.I.: Coral Ridge Properties, Inc. 7 46K
19: EX-3.17 A.O.I.: Coral Ridge Realty, Inc., as Amended 12 61K
20: EX-3.18 A.O.I.: Coral Ridge Realty Sales, Inc. 9 50K
21: EX-3.19 A.O.I.: Financial Resources Group, Inc. 3 31K
4: EX-3.2 Restated C.O.I.: Bay Colony-Gateway, Inc. 17 77K
22: EX-3.20 A.O.I.: Florida Design Communities, Inc. as Amend 7 44K
23: EX-3.21 A.O.I.: Florida Lifestyle Management Co., as Amndd 10 45K
24: EX-3.22 A.O.I.: Florida National Properties, Inc. 4 36K
25: EX-3.23 A.O.I.: Gateway Communities, Inc. 2 32K
26: EX-3.24 A.O.I.: Gateway Communications Services, Inc. 2 31K
27: EX-3.25 A.O.I.: Gateway Realty Sales, Inc. 3 31K
28: EX-3.26 A.O.I.: Heron Bay, Inc. 4 36K
29: EX-3.27 A.O.I.: Heron Bay Golf Course Properties, Inc. 4 36K
30: EX-3.28 A.O.I.: Jyc Holdings, Inc. 3 33K
31: EX-3.29 A.O.I.: Livingston Naples, Inc., as Amended 4 35K
5: EX-3.3 Certificate of Formation of Communities Finance 4 31K
32: EX-3.30 A.O.I.: Livingston Road, Inc. 3 34K
33: EX-3.31 A.O.I.: Marbella at Pelican Bay, Inc. 3 33K
34: EX-3.32 A.O.I.: Pelican Bay Properties, Inc. 3 34K
35: EX-3.33 A.O.I.: Pelican Landing Communities, Inc. 1 29K
36: EX-3.34 A.O.I.: Pelican Landing Properties, as Amended 9 44K
37: EX-3.35 A.O.I.: Pelican Marsh Properties, Inc. 2 30K
38: EX-3.36 A.O.I.: Sarasota Tower, Inc. 3 33K
39: EX-3.37 A.O.I.: Sun City Center Realty, Inc., as Amended 8 41K
40: EX-3.38 A.O.I.: the Colony at Pelican Landing Golf Club 2 33K
41: EX-3.39 A.O.I.: Tarpon Cove Yacht & Racquet Club, Inc. 5 40K
6: EX-3.4 C.O.I.: First Fidelity Title, Inc. 12 62K
42: EX-3.40 A.O.I.: Tarpon Cove Realty, Inc. 2 30K
43: EX-3.41 A.O.I.: Watermark Pools, Inc. 3 33K
44: EX-3.42 A.O.I.: Watermark Realty Referral, Inc., as Amndd 5 38K
45: EX-3.43 A.O.I.: Wci Communities Property Management, Inc. 3 33K
46: EX-3.44 A.O.I.: Wci Golf Group, Inc. 3 34K
47: EX-3.45 A.O.I.: Wci Homes, Inc. 3 33K
48: EX-3.46 A.O.I.: Wci Realty, Inc. 2 30K
49: EX-3.47 A/R By-Laws: Wci Communities, Inc. 14 74K
50: EX-3.48 A/R By-Laws: Bay Colony-Gateway, Inc. 29 82K
51: EX-3.49 Limited Liability Co Agreement: Comm Fin Co, LLC 10 60K
7: EX-3.5 Certificate of Formation of Panther Developments 3 31K
52: EX-3.50 By-Laws of First Fidelity Title, Inc. 28 75K
53: EX-3.51 Limited Liability Co Agreement: Panther Develop 9 61K
54: EX-3.52 By-Laws of Pelican Landing Golf Resort Ventures 13 72K
55: EX-3.53 By-Laws of Sun City Center Golf Properties, Inc. 16 74K
56: EX-3.54 By-Laws of Tiburon Golf Ventures, Inc. 12 63K
57: EX-3.55 By-Laws of Watermark Realty, Inc. 16 74K
58: EX-3.56 By-Laws of Wi Ultracorp of Florida, Inc. 10 59K
59: EX-3.57 By-Laws of Bay Colony of Naples, Inc. 14 74K
60: EX-3.58 By-Laws of Bay Colony Realty Associates, Inc. 10 52K
61: EX-3.59 By-Laws of Communities Amenities, Inc. 7 51K
8: EX-3.6 C.O.I.: Pelican Landing Golf Resort Ventures, Inc. 4 40K
62: EX-3.60 By-Laws of Communities Home Builders, Inc. 7 51K
63: EX-3.61 By-Laws of Coral Ridge Communities, Inc. 7 50K
64: EX-3.62 By-Laws of Coral Ridge Properties, Inc. 18 50K
65: EX-3.63 By-Laws of Coral Ridge Realty, Inc. 11 54K
66: EX-3.64 By-Laws of Coral Ridge Realty Sales, Inc. 10 55K
67: EX-3.65 By-Laws of Financial Resources Group, Inc. 14 74K
68: EX-3.66 By-Laws of Florida Design Communities, Inc. 16 71K
69: EX-3.67 A/R By-Laws of Florida Lifestyle Management Co 25 64K
70: EX-3.68 By-Laws of Florida National Properties, Inc. 7 50K
71: EX-3.69 By-Laws of Gateway Communities, Inc. 27 72K
9: EX-3.7 C.O.I.: Sun City Center Golf Properties, Inc. 7 47K
72: EX-3.70 By-Laws of Gateway Communications Services, Inc. 16 69K
73: EX-3.71 By-Laws of Gateway Realty Sales, Inc. 13 71K
74: EX-3.72 By-Laws of Heron Bay, Inc. 7 50K
75: EX-3.73 By-Laws of Heron Bay Golf Course Properties, Inc. 16 74K
76: EX-3.74 By-Laws of Jyc Holdings, Inc. 7 50K
77: EX-3.75 By-Laws of Livingston Naples, Inc. 7 51K
78: EX-3.76 By-Laws of Livingston Road, Inc. 7 50K
79: EX-3.77 By-Laws of Marbella at Pelican Bay, Inc. 7 53K
80: EX-3.78 By-Laws of Pelican Bay Properties, Inc. 11 44K
81: EX-3.79 By-Laws of Pelican Landing Communities, Inc. 7 50K
10: EX-3.8 C.O.I.: Tiburon Golf Ventures, Inc. 4 40K
82: EX-3.80 By-Laws of Pelican Landing Properties, Inc. 16 71K
83: EX-3.81 By-Laws of Pelican Marsh Properties, Inc. 10 52K
84: EX-3.82 By-Laws of Sarasota Tower, Inc. 7 51K
85: EX-3.83 A/R By-Laws of Sun City Center Realty, Inc. 26 65K
86: EX-3.84 By-Laws of the Colony at Pelican Landing Golf Club 21 77K
87: EX-3.85 By-Laws of Tarpon Cove Yacht & Racquet Club, Inc. 27 77K
88: EX-3.86 By-Laws of Tarpon Cove Realty, Inc. 10 52K
89: EX-3.87 By-Laws of Watermark Pools, Inc. 7 50K
90: EX-3.88 By-Laws of Watermark Realty Referral, Inc. 16 74K
91: EX-3.89 By-Laws of Wci Communities Property Management 7 50K
11: EX-3.9 C.O.I.: Watermark Realty, Inc., as Amended 8 40K
92: EX-3.90 By-Laws of Wci Golf Group, Inc. 7 51K
93: EX-3.91 By-Laws of Wci Homes, Inc. 7 51K
94: EX-3.92 By-Laws of Wci Realty, Inc. 11 55K
95: EX-4.1 Indenture 152 669K
96: EX-4.3 Registration Rights Agreement 32 132K
97: EX-5.1 Opinion of Simpson Thacher & Bartlett 6 39K
98: EX-9.1 Investors' Agreement, Dated as of November 30, 98 27 108K
99: EX-9.2 First Amendment to Investors' Agreement 8 49K
100: EX-10.1 Primary Tax Allocation Agreement 12 60K
101: EX-10.2 3rd Con A/R Senior Secured Facilities Credit Agrmt 137 497K
102: EX-10.3 Employment Agreement: Don E. Ackerman 10 54K
103: EX-10.4 Employment Agreement: Alfred Hoffman, Jr. 11 61K
104: EX-12.1 Statement Re Computation of Ratios 1 29K
105: EX-21.1 Subsidiaries 2 30K
106: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 27K
107: EX-23.3 Consent of Kpmg LLP 1 27K
108: EX-25.1 Form T-1 13 60K
109: EX-99.1 Form of Letter of Transmittal 14 95K
110: EX-99.2 Notice of Guaranteed Delivery 3 36K
EX-3.54 — By-Laws of Tiburon Golf Ventures, Inc.
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EXHIBIT 3.54
TIBURON GOLF VENTURES, INC.
A CORPORATION OF THE STATE OF DELAWARE
BY-LAWS
--------------------------------------------------------------------------------
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the City
of Wilmington, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be
held at any place within or outside the State of Delaware as shall be designated
from time to time by the Board of Directors. In the absence of any such
designation, stockholders' meetings shall be held at the principal executive
office of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held each year on a date and at a time designated by the Board of Directors. At
each annual meeting, directors shall be elected and any other proper business
may be transacted.
Section 3. Quorum. A majority of the stock of each class issued and
outstanding and entitled to vote at any meeting of stockholders, the holders of
which are present in person or represented by proxy, shall constitute a quorum
for the transaction of business except as otherwise provided by law, by the
Certificate of Incorporation, or by these By-Laws. A quorum, once established,
shall not be broken by the withdrawal of enough votes to leave less than a
quorum, and the votes present may continue to transact business until
adjournment. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, a majority of the stock of each class issued and
outstanding and entitled to vote and present in person or represented by proxy
may adjourn the meeting from time to time, without notice other than the
announcement at the meeting, until a quorum shall be present or represented. At
such 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. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote thereat.
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 1
Section 4. Voting. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock of each class issued and outstanding and
entitled to vote and present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is one upon which by
express provision of law, or the Certificate of Incorporation, or these By-Laws,
a different vote is required, in which case such express provision shall govern
and control the decision of such question. Each stockholder shall have one (1)
vote for each share of stock having voting power and registered in such
stockholder's name on the books of the Corporation on the record date set by the
Board of Directors as provided in Article V, Section 6 hereof.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three (3) years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the president and shall be called
by the president or the secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders holding a
majority of the stock of each class issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 7. Notices of Meetings. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given, which notice shall state the place, date and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. The written notice of any meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) or more than sixty (60)
days before the date of the meeting. If mailed, notice is given when deposited
in the United States mail, postage prepaid, directed to the stockholder at such
stockholder's address as it appears on the records of the Corporation.
Section 8. List of Stockholders Entitled to Vote. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 2
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 3
there is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute, by the Certificate of Incorporation
or by these By-Laws. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present. If only one director is authorized, such sole director
shall constitute a quorum.
Section 7. Action Without a Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 8. Meetings by Means of Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
Section 9. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each such
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but,
no such committee shall have the power or authority in reference to amending,
repealing or adopting any provision inconsistent with any provision of the
Certificate of Incorporation, approving any merger or consolidation, approving
any sale, lease, exchange, mortgage, pledge, transfer or other disposition to or
with any person of substantially all of the Corporation's assets other than in
the ordinary course of business, approving the authorization or issuance by the
Corporation of any additional stock or other securities of the Corporation,
adopting any plan or proposal for the liquidation or dissolution of the
Corporation, or amending the By-Laws of the Corporation.
Section 10. Minutes of Committee Meetings. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
Section 11. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, the Board of Directors shall
have the authority to fix the compensation of directors.
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 4
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be chosen by
the Board of Directors and shall include a president and a secretary. The
Corporation may also have, at the discretion of the Board of Directors, such
other officers as are desired, including a chairman of the Board, vice
president, additional vice presidents, one or more assistant secretaries, a
treasurer, one or more assistant treasurers and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article IV. In
the event there are two (2) or more vice presidents, then one or more may be
designated as executive vice president, senior vice president, vice president
marketing, or other similar or dissimilar title. At the time of the election of
officers, the directors may, by resolution, determine the order of their rank.
Any number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-Laws otherwise provide.
Section 2. Appointment. The Board of Directors, at its first meeting and
after each annual meeting of stockholders, shall choose the officers of the
Corporation.
Section 3. Other Officers. The Board of Directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
Section 4. Term of Office. The officers of the Corporation shall hold
office until their successors are chosen and qualify in their stead. Any officer
elected or appointed by the Board of Directors may be removed at any time,
either with or without cause, by the Board of Directors. If the office of any
officer or officers becomes vacant for any reason, the vacancy may be filled by
the Board of Directors.
Section 5. Chairman of the Board. The chairman of the board, if such an
officer be elected, shall, if present, preside at all meetings of the board of
directors and exercise and perform such other powers and duties as may be from
time to time assigned to him by the board of directors or prescribed by these
By-Laws. If there is no president, the chairman of the board shall, in addition,
be the chief executive officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article IV.
Section 6. President. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the chairman of the board, if there be
such an officer, the president shall be the chief executive officer of the
Corporation and shall, subject to the control of the board of directors, have
general supervision, direction and control of the business and officers of the
Corporation. He shall be an ex-officio member of all committees and shall have
the general powers and duties of management usually vested in the office of
president and chief executive officer of corporations, and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
By-Laws.
Section 7. Vice Presidents. In the absence or disability of the
president, the vice presidents, in order of their rank as fixed by the Board of
Directors, or if not ranked, the vice
LAWS
TIBURON GOLF VENTURES, INC.
Page 5
president designated by the Board of Directors, shall perform all the duties of
the president, and when so acting shall have all the powers of and be subject to
all the restrictions upon the president. The vice presidents shall have such
other duties as from time to time may be prescribed for them, respectively, by
the Board of Directors.
Section 8. Secretary. The secretary shall record the proceedings of the
meetings of the stockholders and directors in a book to be kept for that
purpose; and shall perform like duties for the standing committees when required
by the Board of Directors. He shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or these
By-Laws. He shall keep in safe custody the seal of the Corporation, and affix
the same to any instrument requiring it, and when-so affixed, it shall be
attested by his signature or by the signature of an assistant secretary. The
Board of Directors may give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his signature.
Section 9. Assistant Secretary. The assistant secretary, or if there be
more than one, the assistant secretaries in the order determined by the Board of
Directors, or if there be no such determination, the assistant secretary
designated by the Board of Directors, shall, in the absence or disability of the
secretary, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 10. Treasurer. The treasurer, if such an officer is elected,
shall have the custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys, and other valuable effects in the name
and to the credit of the Corporation, in such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an account of all his
transactions as treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, he shall give the corporation a bond, in
such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors, for the faithful performance of the duties of his office and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
Section 11. Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors, or if there be no such determination, the assistant
treasurer designated by the Board of Directors, shall, in the absence or
disability of the treasurer, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 6
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form of Certificates. Every holder of common stock of the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the chairman or vice chairman of the Board of Directors, or
the president or a vice president, and by the secretary, or an assistant
secretary, or the treasurer or an assistant treasurer of the Corporation,
certifying the number of shares represented by the certificate owned by such
stockholder in the Corporation.
Section 2. Signatures. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen 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, stolen or destroyed.
Section 4. Surrender of Certificates. Upon surrender to the Corporation,
or the transfer agent of the Corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignation or
authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 5. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of the
stockholders, or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Owners. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to
BY-LAWS
TIBURON GOLF VENTURES, INC.
Page 7
recognize any equitable or other claim or interest in such share on the part of
any other person, or whether or not it shall have express or other notice
thereof, save as expressly provided by the laws of the State of Delaware.
ARTICLE VI
DIVIDENDS
Section 1. Declaration of Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time in their absolute discretion think
proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purposes as the directors shall think conducive to the interests of the
Corporation, and the directors may abolish any such reserve.
Section 3. Disbursements. All checks or demands for money and notices of
the Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. Notices. Whenever, under the provisions of the statutes or of
the Certificate of Incorporation or of these By-Laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 6. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate of Incorporation or
of these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VII
INDEMNIFICATION
Section 1. Indemnification Actions; Suits or Proceedings Other Than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article VII, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
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Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article VII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any original action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Corporation or
another enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or
other expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in this Section 4 shall mean
any other corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise of which such person is or was serving at the request
of the corporation as a director, officer, employee or agent. The provisions of
this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VII, as the
case may be.
Section 5. Indemnification b a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VII. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standards of conduct set forth in Sections l and 2 of
this Article VII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director, officer, employee or agent seeking
indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the
Corporation promptly upon the filing of such application. If successful, in
whole or in part, the director, officer, employee or agent seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a director
or officer in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director, officer, employee or agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article VII.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article VII shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
any By-Law, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that
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indemnification of the persons specified in Sections l and 2 of this Article VII
shall be made to the fullest extent permitted by law. The provisions of this
Article VII shall not be deemed to preclude the indemnification of any person
who is not specified in Sections 1 or 2 of this Article VII but whom the
Corporation has the power or obligation to indemnify under the provisions of the
General Corporation Law of the State of Delaware, or otherwise.
Section 8. 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 is or was director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan 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 or the obligation to
indemnify him against such liability under the provisions of this Article VII.
Section 9. Certain Definitions. For purposes of this Article VII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituents absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers or agents, so that any person who is or was director,
officer, employee or agent of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprises, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VII, references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit plan.
Section l0. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VII shall, unless otherwise provided when authorized or ratified,
continue as 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.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VII to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 5 hereof), the
Corporation shall not be obligated to indemnify any director, officer, employee
or agent in connection with a proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors of the Corporation.
ARTICLE VIII
AMENDMENTS
Section 1. Subject in each case to the Certificate of Incorporation,
these By-Laws may be altered, amended or repealed or new By-Laws may be adopted
by the stockholders or by the Board of Directors at any regular meeting of the
stockholders or of the Board of Directors or at
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any special meeting of the stockholders or of the Board of Directors if notice
of such alteration, amendment repeal or adoption of new By-Laws be contained in
the notice of such special meeting.
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