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-3.48 — A/R By-Laws: Bay Colony-Gateway, Inc.
| EX-3.48 | 1st Page of 29 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
|---|
EXHIBIT 3.48
EXHIBIT "A"
AMENDED AND RESTATED
BY-LAWS
of
BAY COLONY-GATEWAY, INC.
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office shall be in the City
of Wilmington, County of New Castle, 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. Location of Meetings. The meetings of the stockholders for
the election of directors may be held at such place as may be fixed from time to
time by the board of directors, or at such other place either within or without
the State of Delaware as shall be designated from time to time by the board of
directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
SECTION 2. Annual Meeting. The Annual meetings of the stockholders shall
be held on the date as determined by the directors of the corporation and if a
legal holiday, then on the next secular day following, at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a board of
directors, and transact such other business as may properly be brought before
the meeting.
SECTION 3. Notice of Annual Meeting. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting.
SECTION 4. Stock Ledgers. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten 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 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.
-2-
SECTION 5. 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 chairman or chief executive
and shall be called by the chairman, chief executive officer, president or
secretary at the request, in writing, of a majority of the board of directors,
or at the request in writing of stockholders owning shares of capital stock
equal to 50% of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
SECTION 6. Notice of Special Meetings. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not less than ten nor
more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
SECTION 7. Business Transacted at Special Meetings. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
SECTION 8. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or
-3-
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
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 at the meeting.
SECTION 9. Voting. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting power
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 the statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
SECTION 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing may
authorize another person to act for him as his proxy, but no proxy shall be
voted on after three years from its date, unless the proxy provides for a longer
period.
SECTION 11. Actions Without a Meeting. Unless otherwise provided in the
certificate of incorporation, any action required to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any
-4-
annual or special meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. Members; Number; Term. The number of directors which shall
constitute the whole board shall be not less than one (1) nor more than fifteen
(15). Within the limits above specified, the number of directors shall be
determined by resolution of the board of directors or by the stockholders at the
annual meeting. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 2 of this Article, and each director
elected shall hold office until his successor is elected and qualified.
Directors need not be stockholders.
SECTION 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and the directors so chosen shall hold office until
the next annual election and until their successors are duly elected and shall
qualify, unless sooner displaced. If there are no
-5-
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office.
SECTION 3. Powers. The business of the corporation shall be managed by
or under the direction of its board of directors which may exercise all such
powers of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
SECTION 4. Location of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 5. Annual Meetings. The first meeting of each newly elected
board of directors shall be held at such time and place as shall be fixed by the
vote of the stockholders at the annual meeting and no notice of such meeting
shall be necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the failure of
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such
-6-
meeting is not held at the time and place so fixed by the stockholders, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the board of directors, or
as shall be specified in a written waiver signed by all of the directors.
SECTION 6. Regular Meetings. Regular meetings of the board of directors
may be held without notice at such time and at such place as shall from time to
time be determined by the board.
SECTION 7. Special Meetings. Special meetings of the board may be called
by the chairman on two (2) days' notice to each director, either personally or
by mail or by telegram; special meetings shall be called by the chairman or the
secretary in like manner and on like notice on the written request of two
directors.
SECTION 8. Quorum. At all meetings of the board, a majority of the
members of the board shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. 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.
SECTION 9. Actions 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
-7-
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 10. Participation by 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 communications 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 the meeting.
SECTION 11. Committees.
(a) The board of directors may, by resolution passed by a majority of
the whole board, designate one or more committees, each committee to consist of
one or more of the directors of the corporation. A majority of the director
members shall constitute a quorum at any meeting of said committee or
committees. The board 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.
(b) 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, she 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.
-8-
(c) 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 the certificate of incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provides,
no such committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the board of directors.
(d) Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
SECTION 12. 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. The directors may be
paid their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in
-9-
any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
SECTION 13. Removal of Directors. Unless otherwise restricted by the
certificate of incorporation or by law, any director or the entire board of
directors may be removed, with or without cause, by the holders of a majority of
shares entitled to vote at an election of directors.
ARTICLE IV
NOTICES
SECTION 1. 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 2. 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. Attendance of a person at any meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of
-10-
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE V
OFFICERS
SECTION 1. Number. The officers of the corporation shall be a chairman
of the board, a chief executive officer, a president, a treasurer, a secretary,
and such senior, executive and junior vice presidents, assistant treasurers,
assistant secretaries or other officers as may be elected by the board of
directors. Any two 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 the first meeting of the
board of directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the board of directors. Each
officer shall hold office until his or her successor shall have been duly
elected and shall have qualified or until his or her death or until he or she
shall resign or shall have been removed in the manner hereinafter provided.
Election of an officer shall not of itself create contract rights.
SECTION 3. Removal. Subject to any written employment agreements, any
officer elected or appointed by the board of directors may be removed by the
board of directors whenever in its judgment the best interests of the
corporation would be served
-11-
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed.
SECTION 4. Chairman of the Board. The chairman of the board shall
preside at all meetings of the Shareholders and board of directors of the
Corporation, and is subject to the board of directors.
SECTION 5. Chief Executive Officer. The chief executive officer, subject
to the direction of the board of directors, shall have the powers and duties
normally incident to such position in an entity of the size and type and
operating in the same business as the Corporation. The chief executive officer's
duties shall include but not be limited to, overall executive supervision and
management of the business of the Corporation, strategic planning, executing
strategic plans, approval of material documents and execution or delegation of
execution of material documents. All officers of the Corporation shall report to
the chief executive officer or shall report to persons who report to him. The
chief executive officer shall perform such other duties consistent with the
position of chief executive officer, as shall be determined by the board of
directors from time to time.
Without the consent of the board of directors, the chief executive
officer is authorized and empowered on behalf of and in the name of the
Corporation to contract for, purchase, invest in, manage or develop real estate,
and lease, sell, convey, exchange, mortgage, and in any and every way and manner
deal in and with any interest in real estate, other assets of the Corporation or
other aspects of the Corporation's business.
-12-
Without the consent of the board of directors, the chief executive
officer is authorized and empowered to represent the Corporation before any
agency, office, department or division of the federal or any state or local
government or regulatory body and to execute and deliver on behalf of and in the
name of the Corporation any necessary documents or instruments with respect to
matters which may be under consideration by any such agency, office, department
or division.
Without the consent of the board of directors, the chief executive
officer is authorized and empowered on behalf of and in the name of the
Corporation to execute and deliver and acknowledge such contracts, deeds,
leases, mortgages, mortgage modifications, condominium declarations and
documents, easements, dedications regarding plats, plats, licenses, permits,
bills, bonds, notes, receipts, evidence of debt, releases and satisfaction of
mortgages, judgments and other debts, and such other documents, certificates and
instruments in writing of whatsoever kind and nature as is needed in the
Corporation's business.
Subject to the direction of the board of directors, the chief executive
officer is authorized and empowered to vote either in person or by proxy, all of
the shares of the capital stock of any company which the Corporation owns or is
otherwise entitled to vote at any and all meetings of the stockholders of such
company and shall have the power to accept or waive notice of such meetings.
The powers of the chief executive officer are subject to any limits on
authority which are adopted by the board of directors of the Corporation.
-13-
SECTION 6. President. The president, subject to the direction of the
board of directors, chairman of the board and chief executive officer, shall
exercise supervision and control over the daily operations of the Corporation
and shall perform such other duties and have such other powers as the chairman
of the board, chief executive officer or the board of directors may from time to
time determine.
Without the consent of the board of directors, the president is
authorized and empowered on behalf of and in the name of the Corporation to
contract for, purchase, invest in, manage or develop real estate, and lease,
sell, convey, exchange, mortgage, and in any and every way and manner deal in
and with any interest in real estate, other assets of the Corporation or other
aspects of the Corporation's business.
Without the consent of the board of directors, the president is
authorized and empowered to represent the Corporation before any agency, office,
department or division of the federal or any state or local government or
regulatory body and to execute and deliver on behalf of and in the name of the
Corporation any necessary documents or instruments with respect to matters which
may be under consideration by any such agency, office, department or division.
Without the consent of the board of directors, the president is
authorized and empowered on behalf of and in the name of the Corporation to
execute and deliver and acknowledge such contracts, deeds, leases, mortgages,
mortgage modifications, condominium declarations and documents, easements,
dedications regarding plats, plats, licenses, permits, bills, bonds, notes,
receipts, evidence of debt, releases and satisfaction of mortgages, judgments
and other debts, and such other documents, certificates and
-14-
instruments in writing of whatsoever kind and nature as is needed in the
Corporation's business.
Subject to the direction of the board of directors, chairman of the
board and chief executive officer, the president is authorized and empowered to
vote either in person or by proxy, all of the shares of the capital stock of any
company which the Corporation owns or is otherwise entitled to vote at any and
all meetings of the stockholders of such company and shall have the power to
accept or waive notice of such meetings. In the absence or disability of the
chief executive officer, the president shall perform the duties and exercise the
powers of the chief executive officer.
The powers of the president are subject to any limits on authority which
are adopted by the board of directors of the Corporation.
SECTION 7. Vice Presidents. Each executive vice president, senior vice
president, vice president and assistant vice president (collectively "vice
presidents") shall assist the chairman of the board, chief executive officer and
the president in the discharge of their respective duties. The seniority of the
categories of vice presidents shall be as follows: executive vice president,
senior vice president, vice president and assistant vice president.
Without the consent of the board of directors, each vice president is
authorized and empowered on behalf of and in the name of the Corporation to
contract for, purchase, invest in, manage or develop real estate, and lease,
sell, convey, exchange, mortgage, and in any and every way and manner deal in
and with any interest in real estate, other assets of the Corporation or other
aspects of the Corporation's business.
-15-
Without the consent of the board of directors, each vice president is
authorized and empowered to represent the Corporation before any agency, office,
department or division of the federal or any state or local government or
regulatory body and to execute and deliver on behalf of and in the name of the
Corporation any necessary documents or instruments with respect to matters which
may be under consideration by any such agency, office, department or division.
Without the consent of the board of directors, each vice president is
authorized and empowered on behalf of and in the name of the Corporation to
execute and deliver and acknowledge such contracts, deeds, leases, mortgages,
mortgage modifications, condominium declarations and documents, easements,
dedications regarding plats, plats, licenses, permits, bills, bonds, notes,
receipts, evidence of debt, releases and satisfaction of mortgages, judgments
and other debts, and such other documents, certificates and instruments in
writing of whatsoever kind and nature as is needed in the Corporation's
business.
Each vice president shall perform such other duties as from time to time
may be assigned to him by the board of directors, chairman of the board, the
chief executive officer, or the president. In the event of the president's
inability to act and the chief executive officer's inability or refusal to act
on behalf of the president, the vice presidents in their order of seniority
within each category of vice president shall perform 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.
-16-
Subject to the direction of the board of directors, chairman of the
board, chief executive officer, president and other vice presidents with more
seniority, each vice president is authorized and empowered to vote either in
person or by proxy, all of the shares of the capital stock of any company which
the Corporation owns or is otherwise entitled to vote at any and all meetings of
the stockholders of such company and shall have the power to accept or waive
notice of such meetings.
Notwithstanding anything contained herein, if Don E. Ackerman is serving
as executive vice president he shall only be subject to the supervision,
direction and control of the board of directors.
The powers of each vice president are subject to any limits on authority
which are adopted by the board of directors of the Corporation.
SECTION 8. Treasurer. The treasurer shall be the principal accounting
and financial officer of the Corporation. He shall: (a) have charge of and be
responsible for the maintenance of adequate books of account for the
Corporation; (b) have charge of and custody of all funds and securities of the
Corporation, and be responsible for the receipt and disbursement thereof; and
(c) perform all the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the board of directors,
chairman of the board, chief executive officer, president or executive vice
president.
Without the consent of the board of directors, the treasurer is
authorized and empowered on behalf of and in the name of the Corporation to
contract for, purchase, invest in, manage or develop real estate and lease,
sell, convey, exchange, mortgage and
-17-
in any and every way and manner deal in and with any interest in real estate,
other assets of the Corporation or other aspects of the Corporation's business.
Without the consent of the board of directors, the treasurer is
authorized and empowered to represent the Corporation before any agency, office,
department or division of the federal or any state or local government or
regulatory body and to execute and deliver on behalf of and in the name of the
Corporation any necessary documents or instruments with respect to matters which
may be under consideration by any such agency, office, department or division.
Without the consent of the board of directors, the treasurer is
authorized and empowered on behalf of and in the name of the Corporation to
execute and deliver and acknowledge such contracts, deeds, leases, mortgages,
easements, dedications regarding plats, plats, licenses, permits, bills, bonds,
notes, receipts, evidence of debt, releases and satisfaction of mortgages,
judgments and other debts, and such other documents, certificates and
instruments in writing of whatsoever kind and nature as is needed in the
Corporation's business.
Subject to the direction of the chairman of the board, board of
directors, chief executive officer, president and executive vice president, the
treasurer is authorized and empowered to vote either in person or by proxy, all
of the shares of the capital stock of any company which the Corporation owns or
is otherwise entitled to vote at any and all meetings of the stockholders of
such company and shall have the power to accept or waive notice of such
meetings.
-18-
The powers of the treasurer are subject to any limits on authority which
are adopted by the board of directors of the Corporation.
SECTION 9. Secretary. The secretary is authorized and empowered to: (a)
record the minutes of the Corporation's meetings; (b) see that all notices are
duly given; (c) keep a register of the address of each Shareholder; (d) sign
with the chairman of the board, chief executive officer, president, any vice
president, the treasurer or any other officer such instruments or documents
which such other officers are authorized to execute, and (e) represent the
Corporation before any agency, office, department or division of the federal or
any state or local government and to execute and deliver on behalf of and in the
name of the Corporation any necessary documents with respect to matters which
may be under consideration by any such agency, office, department or division;
(f) have authority to certify the resolutions of the stockholders and board of
directors of the Corporation and committees thereof, and other documents of the
Corporation as true and correct copies thereof; and (g) perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to him by the board of directors, chairman of the board, chief
executive officer, president or any vice president.
The powers of the secretary are subject to any limits on authority which
are adopted by the board of directors of the Corporation.
SECTION 10. Assistant Treasurers and Assistant Secretaries. The
assistant treasurers and assistant secretaries shall perform such duties as
shall be assigned to them by the treasurer or the secretary, respectively, or by
the chairman of the board, board of
-19-
directors, chief executive officer, president or any vice president. The
assistant secretaries and assistant treasurers are authorized and empowered to
sign with the chairman of the board, chief executive officer, president, any
vice president, treasurer or any other officer such instrument or documents
which such other officers are authorized to execute and the assistant
secretaries and assistant treasurers are authorized and empowered to represent
the Corporation before any agency, office, department or division of the federal
or any state or local government or regulatory body and to execute and deliver
on behalf of and in the name of the Corporation any necessary documents with
respect to matters which may be under consideration by any such agency, office,
department of division.
The powers of each assistant treasurer and assistant secretary are
subject to any limits on authority which are adopted by the board of directors
of the Corporation.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. Form of Certificates. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by the president or a vice-president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him or her in the
corporation.
Certificates may be issued for partly paid shares and in such case upon
the face or back of the certificates issued to represent any such partly paid
shares, the total
-20-
amount of the consideration to be paid therefor, and the amount paid thereon
shall be specified.
SECTION 2. Classes of Securities. If the corporation shall be authorized
to issue more than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualification,
limitations or restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the General Corporation Law
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 3. Signatures. Any of or all the signatures on the certificate
may be 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 or she were such officer, transfer agent or registrar at the date of
issue.
-21-
SECTION 4. Lost, Stolen or Destroyed 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 or her 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 5. Transfer of Stock. 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, assignment 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 6. Transfer Agent. The board of directors may appoint one or
more transfer agents or transfer clerks and one or more registrars, and may
require all certificates for shares to bear the signature or signatures of any
of them. If a transfer agent or transfer agents are appointed, one transfer
agent shall be designated to maintain a stock ledger listing the names and
addresses and the holders of all issued stock of the corporation.
-22-
SECTION 7. Stock Ledger. An officer of the corporation, or a designated
transfer agent, shall maintain a stock ledger listing the names and addresses of
the holders of all issued stock of the corporation, the number of shares held by
each, the certificate numbers representing such stock and the date of issue of
the certificates. If appointed, the registrar, or otherwise an officer of the
corporation shall maintain a stock register listing the total number of shares
of each class which the corporation is authorized to issue, and the total number
of shares actually issued. The stock ledger and stock register shall constitute
the stock transfer books of the corporation, but as between the two, the stock
ledger maintained by the transfer agent or officer of the corporation shall be
considered the official list of stockholders of record of the corporation. The
name and address of each stockholder of record as it shall appear on the stock
ledger shall be conclusive evidence as to who are the stockholders entitled to
receive notice of meetings and to vote at such meetings and to receive dividends
and the other distributions made by the corporation. Stockholders are
responsible for notifying the transfer agent, or corporation if no transfer
agent is appointed, in writing, of any change of name or address, and failure to
do so will relieve the corporation, its officers, directors and agents, and its
transfer agent and registrar, of liability for failure to send notices or pay
dividends or other distributions to a name or address other than the name or
address appearing on the stock ledger maintained by the transfer agent, or an
officer of the corporation.
SECTION 8. Fixing Record Date. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any
-23-
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, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty 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 9. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VII
INDEMNIFICATION
SECTION 1. General. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil,
-24-
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or was
serving at the request of the corporation as a director or officer of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by the corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of his or
her heirs, executors and administrators; provided, however, that except as
provided in Section 2 of this Article VII with respect to proceedings seeking to
enforce rights to indemnification, the corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the board of directors of the corporation. The right to
indemnification conferred in this Article VII shall be a contract right and
-25-
shall include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that if the General Corporation Law of the State of Delaware requires,
an advance payment of expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the corporation of an undertaking by or on behalf of
such director or officer, to repay all amounts so advanced if it shall be
finally adjudicated that such director or officer is not to be indemnified under
this Article VII or otherwise.
SECTION 2. Expenses. If a claim under Section 1 of this Article VII is
not paid in full by the corporation within thirty days after a written claim has
been received by the corporation, the claimant may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
corporation (including its board of directors, independent legal counsel or
-26-
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual determination by
the corporation (including its board of directors, independent legal counsel or
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 3. Non-Exclusive. The right to indemnification and the payment
of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article VII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 4. Insurance. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
SECTION 5. Employees and Agents. The corporation may, to the extent
authorized from time to time by the board of directors, grant rights to
indemnification, and to the advancement of expenses incurred in defending any
proceeding to any employee or agent of the corporation to the fullest extent of
the provisions of this
-27-
Article VII with respect to the indemnification and advancement of expenses of
directors and officers of the corporation.
SECTION 6. Corporation Defined. For purposes of this Article VII, the
term "corporation" shall include, in addition to the corporation, any
constituent corporation absorbed in a consolidation or merger with the
corporation, to the extent such constituent corporation would have had power and
authority to indemnify its directors, officers, employees and agents if its
separate existence had survived.
ARTICLE VIII
SECTION 1. Dividends.
(a) 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.
(b) 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 or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
-28-
SECTION 2. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
SECTION 3. Signatures. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons 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. Seal. The corporation may adopt a corporate seal, which
shall have inscribed thereon the name of the corporation, the year of its
organization and the words "Corporate Seal, Delaware". The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
SECTION 6. Amendments. These by-laws may be altered or repealed at
any regular or special meeting of the stockholders or of the board of directors.
-29-
↑Top
Filing Submission 0000950123-01-003217 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., Apr. 24, 4:14:27.1pm ET 