Registration of Securities Issued in a Business-Combination Transaction — Form S-4
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1: S-4 Registration of Securities Issued in a HTML 1.12M
Business-Combination Transaction
2: EX-3.10 Ex-3.10: Articles of Incorporation of Bay Colony 2 25K
Realty Associates, Inc.
17: EX-3.100 Ex-3.100: By-Laws of Wci Homebuilding Northeast 7 46K
U.S., Inc.
18: EX-3.101 Ex-3.101: By-Laws of Wci Marketing, Inc. 7 45K
19: EX-3.102 Ex-3.102: By-Laws of Wci Towers, Inc. 7 46K
3: EX-3.28 Ex-3.28: Articles of Incorporation of Resort at 2 28K
Singer Island Properties, Inc.
4: EX-3.30 Ex-3.30: Articles of Incorporation of Perlican Bay 5 30K
Properties, Inc.
5: EX-3.46 Ex-3.46: Articles of Incorporation of Wci 3 30K
Amenities, Inc.
6: EX-3.47 Ex-3.47: Articles of Incorporation of Wci Business 3 29K
Development, Inc.
7: EX-3.48 Ex-3.48: Articles of Incorporation of Wci 3 29K
Homebuilding, Inc.
8: EX-3.49 Ex-3.49: Articles of Incorporation of Wci 3 29K
Homebuilding Northeast U.S., Inc.
9: EX-3.50 Ex-3.50: Articles of Incorporation of Wci 3 28K
Marketing, Inc.
10: EX-3.51 Ex-3.51: Articles of Incorporation of Wci Towers, 3 30K
Inc.
11: EX-3.58 Ex-3.58: By-Laws of Tiburon Golf Ventures, Inc. 12 63K
12: EX-3.79 Ex-3.79: By-Laws of Resort at Singer Island 7 44K
Properties, Inc.
13: EX-3.96 Ex-3.96: By-Laws of Wci Architecture & Land 18 74K
Planning, Inc.
14: EX-3.97 Ex-3.97: By-Laws of Wci Amenities, Inc. 7 46K
15: EX-3.98 Ex-3.98: By-Laws of Wci Business Development, Inc. 7 46K
16: EX-3.99 Ex-3.99: By-Laws of Wci Homebuilding, Inc. 7 45K
20: EX-5.1 Ex-5.1: Opinion of Simpson Thacher & Bartlett LLP 6 34K
21: EX-5.2 Ex-5.2: Opinion of James D. Cullen 5 33K
22: EX-10.10 Ex-10.10: Retirement Agreement 3 32K
23: EX-10.11 Ex-10.11: Consulting Agreement 6 42K
24: EX-12.1 Ex-12.1: Statement Re: Computation of Ratios 1 25K
25: EX-21.1 Ex-21.1: Subsidiaries 4 32K
26: EX-23.2 Ex-23.2: Consent of Pricewaterhousecoopers LLP 1 24K
27: EX-25.1 Ex-25.1: Form T-1 18 65K
28: EX-99.1 Ex-99.1: Form of Letter of Transmittal HTML 98K
29: EX-99.2 Ex-99.2: Notice of Guaranteed Delivery HTML 34K
EX-3.96 — Ex-3.96: By-Laws of Wci Architecture & Land Planning, Inc.
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EXHIBIT 3.96
BYLAWS
OF
WCI ARCHITECTURE & LAND PLANNING, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Annual Meetings of Shareholders
The annual meeting of the Shareholders of this Corporation for the
election of the Board of Directors and the transaction of such
further business as may come before the meeting shall be held on
the first Monday in April of each year (or in the event such day
is a legal holiday, on the next following day which is not a legal
holiday), unless by resolution of the Board of Directors in any
year a different time is designated.
Section 2. Special Meetings of Shareholders
Special meetings of the Shareholders shall be held when directed
by the President or the Board of Directors or when requested in
writing by the holders of not less than ten percent (10%) of all
the shares entitled to vote at the meeting. The call for the
meeting shall be issued by the Secretary, unless the President,
Board of Directors or Shareholders requesting the meeting shall
designate another person to do so.
Section 3. Place
Meetings of Shareholders may be held within or without the State
of Florida.
Section 4. Notice
Written notice stating the place, date and time of the meeting,
and in the case of a special meeting stating 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
meeting, either personally, by telegraph, teletype, facsimile
transmission or other form of electronic communication, or by
first class mail, by or at the direction of the President or the
persons calling the meeting to each Shareholder of record entitled
to vote at such meeting. 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
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Corporation, with postage thereon prepaid. If any such
Shareholder's address is unknown, notice shall be given by
advertising once in some newspaper published in Hillsborough
County within the time above specified for served or mailed
notice. If any Shareholder shall transfer any of his shares after
notice has been delivered to him, it shall not be necessary to
notify the transferee. Any Shareholder, however, may waive notice
of any meeting either before, at or after such meeting.
Section 5. Notice of Adjourned Meetings of Shareholders
When an annual or special meeting is adjourned to a different
date, time or place, it shall not be necessary to give any notice
of the adjourned meeting if the date, time, and place to which the
meeting is adjourned are announced at the meeting before the
adjournment is taken and at the adjourned meeting any business may
be transacted that might have been transacted on the original date
of the meeting.
Section 6. Fixing Record Date
The Board of Directors may fix a date not more than seventy (70)
days nor less than ten (10) days prior to the date set for a
Shareholders' meeting as the record date as of which the
Shareholders of record who have the right to and are entitled to
notice of and to vote at such meeting and any adjournment thereof
shall be determined.
Section 7. Voting List
The officers 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 by voting group, with the address of and the
number and class and series, if any, of shares held by each. The
list, for a period of ten (10) days prior to such meeting, shall
be kept on file at the Corporation's principal office, at a place
identified in the meeting notice in the city where the meeting
will be held, or at the office of the transfer agent or registrar
of the Corporation and any Shareholder or his agent or attorney
shall be entitled on written demand to inspect the list (subject
to the requirements of Florida Statute Section. 607.1602(3) or its
successor) during regular business hours and at his expense during
the period it is available for inspection. The list shall also be
available at the meeting, and any Shareholder or his agent or
attorney is entitled to inspect the list at any time during the
meeting or any adjournment.
If the requirements of this section have not been substantially
complied with or if the Corporation refuses to allow a shareholder
or his agent or attorney to inspect the shareholders' list before
or at the meeting, the
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meeting shall be adjourned until such requirements are complied
with on the demand of any shareholder in person or by proxy who
failed to get such access, or, if not adjourned upon such demand
and such requirements are not complied with, the circuit court of
the circuit where the Corporation's principal office (or, if none
in the State of Florida, its registered office) is located, on
application of the shareholder, may summarily order the inspection
or copying at the Corporation's expense and may postpone the
meeting for which the list was prepared until the inspection or
copying is complete.
Refusal or failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
Section 8. Quorum
A majority of the shares entitled to vote represented in person or
by proxy shall constitute a quorum at a meeting of the
Shareholders. When a specified item of business is required to be
voted on by a class or series of stock, a majority of the shares
of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series.
If a quorum exists, action on a matter, other than the election of
Directors, is approved if the votes cast by the holders of the
shares represented at the meeting and entitled to vote on the
subject matter favoring the action exceed the votes cast opposing
the action, unless a greater number of affirmative votes or voting
by classes is required by the Florida Business Corporation Act or
the Corporation's Articles of Incorporation.
Directors shall be elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a
quorum is present.
Section 9. Voting of Shares
A Shareholder, a person entitled to vote on behalf of a
shareholder pursuant to Florida Statute Section 607.0721 or its
successor, or an attorney in fact may vote either in person or by
proxy. A shareholder may appoint a proxy to vote or otherwise act
for him by signing an appointment form, either personally or by
his attorney in fact. A proxy shall be filed with the Secretary of
the meeting or other officer or agent authorized to tabulate votes
before being voted. Except as otherwise provided by law, each
outstanding share of stock shall be entitled to one (1) vote on
each matter submitted to a vote at the meeting.
Section 10. Action by Shareholders Without a Meeting
Any action required or permitted by law or the Articles of
Incorporation of this Corporation to be taken at an annual or
special meeting of shareholders of the Corporation may be taken
without a meeting, without
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prior notice, and without a vote if the action is taken by the
holders of outstanding stock of each voting group entitled to vote
thereon having not less than the minimum number of votes with
respect to each voting group that would be necessary to authorize
or take such action at a meeting at which all voting groups and
shares entitled to vote thereon were present and voted. In order
to be effective the action must be evidenced by one or more
written consents describing the action taken, dated and signed by
approving shareholders having the requisite number of votes of
each voting group entitled to vote thereon, and delivered to the
Corporation by delivery to its principal office in the State of
Florida, the Corporation's principal place of business, the
Corporation's Secretary, or another officer or agent of the
Corporation having custody of the book in which proceedings of
meetings of shareholders are recorded. No written consent shall be
effective to take the corporate action referred to therein unless,
within sixty (60) days of the date of the earliest dated consent
delivered in the manner required by this section, written consent
signed by the number of holders required to take action is
delivered to the Corporation by delivery as set forth in this
section.
Any written consent may be revoked prior to the date that the
Corporation receives the required number of consents to authorize
the proposed action. No revocation is effective unless in writing
and until received by the Corporation at its principal office in
the State of Florida or the Corporation's principal place of
business, or received by the Corporation's secretary or other
officer or agent of the Corporation having custody of the book in
which proceedings of meetings of shareholders are recorded.
Within ten (10) days after obtaining such authorization by written
consent, notice must be given to those shareholders who have not
consented in writing or who are not entitled to vote on the
action. The notice shall fairly summarize the material features of
the authorized action and, if the action be such for which
dissenters' rights are provided under the Florida Business
Corporation Act, the notice shall contain a clear statement of the
right of shareholders dissenting therefrom to be paid the fair
value of their shares upon compliance with the provisions of the
Florida Business Corporation Act regarding the rights of
dissenting shareholders.
Whenever action is taken pursuant to this section, the written
consent of the shareholders consenting thereto or the written
reports of inspectors appointed to tabulate such consents shall be
filed with the minutes of proceedings of shareholders.
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ARTICLE II
DIRECTORS
Section 1. Powers
All corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be managed
under the direction of the Board of Directors. The Board of
Directors shall have authority to fix the compensation of Directors.
Section 2. Number, Qualifications and Term
The Board of Directors shall consist of Three (3) individuals, to be
elected at the annual meeting of Shareholders by the shares voted,
but the number may be increased or decreased from time to time by
resolution of the Board of Directors. No decrease in the number
shall have the effect of shortening the term of any incumbent
Director. Directors must be natural persons who are eighteen (18)
years of age or older but need not be residents of this State nor
shareholders of this Corporation. A Director shall hold office until
his successor shall have been elected and shall have qualified or
until his earlier resignation, removal from office or death.
Section 3. Duties of Directors
A Director shall discharge his duties as a Director, including his
duties as a member of any committee of the Board upon which he may
serve, in good faith, in a manner he reasonably believes to be in
the best interests of the Corporation and with the care an
ordinarily prudent person in a like position would under similar
circumstances.
In discharging his duties, a Director shall be entitled to rely on
information, opinions, reports or statements, including financial
statements and other financial data, if prepared or presented by:
(a) one or more officers or employees of the Corporation whom the
Director reasonably believes to be reliable and competent in the
matters presented;
(b) counsel, public accountants or other persons as to matters which
the Director reasonably believes to be within such person's
professional or expert competence; or
(c) a committee of the Board of which he is not a member if the
Director reasonably believes the committee merits confidence.
A Director is not acting in good faith if he has knowledge
concerning the matter in question that makes reliance described
above unwarranted.
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A director is not liable for any action taken as a director, or any
failure to take any action, if he performed the duties of his office
in compliance with this section.
Section 4. Vacancies
Whenever a vacancy occurs on the Board of Directors, including a
vacancy resulting from an increase in the number of Directors, it
may be filled by the affirmative vote of a majority of the remaining
Directors, though less than a quorum of the Board of Directors, or
by the Corporation's shareholders.
Whenever the holders of shares of any voting group are entitled to
elect a class of one or more Directors by the provisions of the
Articles of Incorporation of the Corporation, vacancies in such
class may be filled by holders of shares of that voting group or by
a majority of the Directors then in office elected by such voting
group or by a sole remaining Director so elected. If no Director
elected by such voting group remains in office, Directors not
elected by such voting group may fill vacancies as provided above.
A vacancy that will occur at a specific later date (by reason of a
resignation effective at a later date under Florida Statute Section
607.0807(2) or its successor or otherwise) may be filled before the
vacancy occurs but the new Director may not take office until the
vacancy occurs.
Section 5. Resignation and Removal of Directors
The Shareholders may remove one or more Directors with or without
cause. If a Director is elected by a voting group of Shareholders,
only the Shareholders of that voting group may participate in the
vote to remove him. A Director may be removed by the Shareholders at
a meeting of Shareholders, provided the notice of the meeting states
that the purpose, or one of the purposes, of the meeting is removal
of the Director.
A Director may resign at any time by delivering written notice to
the Board of Directors or its chairman or to the Corporation.
A resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made
effective at a later date, the Board of Directors may fill the
pending vacancy before the effective date if the Board of Directors
provides that the successor does not take office until the effective
date.
Section 6. Quorum and Voting
A quorum of the Board of Directors of the Corporation shall consist
of a majority of the number of Directors prescribed by the Bylaws.
7
If a quorum is present when a vote is taken, the affirmative vote of
a majority of Directors present is the act of the Board of
Directors.
A Director of the Corporation who is present at a meeting of the
Board of Directors or a committee of the Board of Directors when
corporate action is taken is deemed to have assented to the action
taken unless:
(a) He objects at the beginning of the meeting (or promptly upon his
arrival) to holding it or transacting specified business at the
meeting; or
(b) He votes against or abstains from the action taken.
Section 7. Place of Meetings
Regular or special meetings of the Board of Directors may be held
within or without the State of Florida.
Section 8. Time, Notice and Call of Meetings
The annual meeting of the Board of Directors shall be held without
notice immediately after the annual meeting of Shareholders. Special
meetings of the Board of Directors must be preceded by at least two
(2) days notice of the date, time and place of the meeting. The
notice need not describe the purpose of the special meeting.
A majority of the Directors present, whether or not a quorum exists,
may adjourn any meeting of the Board of Directors to another time
and place. Notice of any such adjourned meeting shall be given to
the Directors who were not present at the time of the adjournment
and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other Directors.
Notice of a meeting of the Board of Directors need not be given to
any Director who signs a waiver of notice either before or after the
meeting. Attendance of a Director at a meeting shall constitute a
waiver of notice of such meeting and a waiver of any and all
objections to the place of the meeting, the time of the meeting, or
the manner in which it has been called or convened. Meetings of the
Board of Directors may be called by a Chairman of the Board, by the
President of the Corporation or by any two Directors.
Members of the Board of Directors or of a Committee of the Board may
participate in a meeting of such board or such committee by means of
a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each
other at the same time. Participation by such means shall constitute
presence in person at a meeting.
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Section 9. Action Without a Meeting
Any action required or permitted by law to be taken at a Board of
Directors meeting or committee meeting may be taken without a
meeting if the action is taken by all members of the Board or of the
committee. The action must be evidenced by one or more written
consents describing the action taken and signed by each Director or
committee member.
Action taken under this section is effective when the last director
signs the consent, unless the consent specifies a different
effective date.
ARTICLE III
OFFICERS
Section 1. Election and Qualification
The officers of this Corporation shall consist of a President, a
Vice President, a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors at the first meeting of Directors
immediately following the annual meeting of Shareholders of this
Corporation and shall serve until their successors are chosen and
have qualified or until their earlier resignation, removal from
office or death.
Such other officers and assistant officers and agents as may be
deemed necessary may be elected or appointed by the Board of
Directors from time to time. Any two or more offices may be held by
the same person. The failure to elect a president, any vice
president, a secretary, or a treasurer shall not affect the
existence of this Corporation.
Section 2. Duties
The officers of this Corporation shall have the following duties:
The President shall be the chief executive officer of the
Corporation; shall have general and active management of the
business and affairs of the Corporation subject to the directions of
the Board of Directors; and shall preside at all meetings of the
Shareholders and the Board of Directors.
The Vice President shall, during the absence or disability of the
President, perform the duties and exercise the powers of the
President. The Vice President shall further perform such other
duties as may be prescribed by the Board of Directors or the
President.
The Secretary shall have custody of and maintain all of the
corporate records except the financial records; shall record the
minutes of all meetings of the Shareholders and the Board of
Directors; send out all
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notices of meetings; and perform such other duties as may be
prescribed by the Board of Directors or the President.
The Treasurer shall have custody of all corporate funds and
financial records; shall keep full and accurate accounts of receipts
and disbursements and render accounts thereof at the annual meetings
of Shareholders and whenever else required by the Board of Directors
or the President; and shall perform such other duties as may be
prescribed by the Board of Directors or the President.
Section 3. Resignation and Removal of Officers
An officer may resign at any time by delivering notice to the
Corporation. A resignation is effective when the notice is delivered
unless the notice specifies a later effective date. If a resignation
is made effective at a later date and the Corporation accepts the
future effective date, the Board of Directors may fill the pending
vacancy before the effective date if the Board of Directors provides
that the successor does not take office until the effective date.
The Board of Directors may remove any officer at any time with or
without cause.
Any vacancy, however occurring, in any office may be filled by the
Board of Directors.
ARTICLE IV
SHARES
Section 1. Issuance of Certificates
Shares of the Corporation may, but need not be in the discretion of
the Board of Directors, represented by certificates.
Section 2. Form of Certificates
If share certificates are to be issued, such certificates
representing shares in this Corporation shall be signed (either
manually or in facsimile) by the President or Vice President and the
Secretary or Assistant Secretary or by such other officer or
officers that may be designated by the Board of Directors from time
to time and may be sealed with the seal of this Corporation or a
facsimile thereof.
Each certificate representing shares shall state upon the face
thereof: the name of the Corporation; that the Corporation is
organized under the laws of the State of Florida; the name of the
person or persons to whom issued; the number and class of shares,
and the designation of the series, if any,
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which such certificate represents. Each certificate may state the
par value of each share represented by such certificate, if any, or
a statement that the shares are without par value.
If the Corporation is authorized to issue different classes of
shares or different series within a class, the designations,
relative rights, preferences, and limitations applicable to each
class and the variations in rights, preferences, and limitations
determined for each series (and the authority of the Board of
Directors to determine variations for future series) must be
summarized on the front or back of each certificate. Alternatively,
each certificate may state conspicuously on its front or back that
the corporation will furnish the Shareholders with a full statement
of this information on request and without charge.
Every certificate representing shares which are restricted as to
sale, disposition or other transfer of such shares shall state
conspicuously on the front or back of the certificate that such
shares are restricted as to transfer.
Section 3. Stock Register
A stock book, stock record or register shall be kept at the office
of the Corporation in Florida, containing the names alphabetically
arranged, with the address of every Shareholder by class of shares
showing the number and series of shares of stock held of record by
him.
Section 4. Lost, Stolen or Destroyed Certificates
The Corporation may issue a new stock certificate in the place of
any certificate previously issued and subsequently lost, stolen,
destroyed or mutilated if the holder of record of the certificate:
(a) makes proof in affidavit form that it has been lost, destroyed,
wrongfully taken or mutilated; (b) requests the issue of a new
certificate before the Corporation has notice that the certificate
has been acquired by a purchaser for value in good faith and without
notice of any adverse claim; (c) if required by the Board of
Directors, gives bond in such form as the Corporation may direct to
indemnify the Corporation, the transfer agent and the registrar
against any claim that may be made on account of the alleged loss,
destruction or theft of a certificate; and (d) satisfies any other
reasonable requirements imposed by the Corporation to protect it
against liability.
Section 5. Shares Without Certificates
The Board of Directors of the Corporation may authorize the issue of
some or all of the shares of any or all of its classes or series
without certificates. The authorization does not affect shares
already represented by certificates until they are surrendered to
the Corporation.
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Within a reasonable time after the issue or transfer of shares
without certificates, the Corporation shall send the Shareholders
who do not receive certificates a written statement of the
information required on certificates by Section 2 of this Article
IV.
ARTICLE V
SEAL
Section 1. Description of Seal
The corporate seal of the Corporation shall bear the name of the
Corporation which shall be between two concentric circles, and on
the inside of the inner circle shall be the words "CORPORATE SEAL"
and "FLORIDA" and the figures "2002", an impression of the said seal
appearing on the margin hereof.
ARTICLE VI
MISCELLANEOUS
Section 1. Conflicts of Interest
No contract or other transaction between this Corporation and one or
more of its Directors or any other corporation, firm, association or
entity in which one or more of the Directors are directors or
officers or are financially interested, shall be either void or
voidable because of such relationship or interest, because such
Director or Directors are present at the meeting of the Board of
Directors or a committee thereof which authorizes, approves or
ratifies such contract or transaction, or because his or their votes
are counted for such purpose, if:
(a) The fact of such relationship or interest is disclosed or known
to the Board of Directors or committee which authorizes, approves or
ratifies the contract or transaction by a vote or consent sufficient
for the purpose without counting the votes or consents of such
interested Directors; or
(b) The fact of such relationship or interest is disclosed or known
to the Shareholders entitled to vote and they authorize, approve or
ratify such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable as to this
Corporation at the time it is authorized by the Board, a committee
or the Shareholders.
Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a
12
committee thereof which authorizes, approves or ratifies such
contract or transaction.
For purposes of subsection (b) above, a conflict of interest
transaction is authorized, approved, or ratified if it receives the
vote of a majority of the shares entitled to be counted under this
section. Shares owned by or voted under the control of a Director
who has a relationship or interest in the transaction may not be
counted in a vote of Shareholders to determine whether to authorize,
approve, or ratify a conflict of interest transaction under
subsection (b). The vote of those shares, however, is counted in
determining whether the transaction is approved under other sections
of the Florida Business Corporation Act. A majority of the shares,
whether or not present, that are entitled to be counted in a vote on
the transaction under subsection (b) above constitutes a quorum for
the purposes of taking action under this section.
ARTICLE VII
INDEMNIFICATION
Section 1. Definitions
For purposes of this Article VII:
The term "agent" includes a volunteer;
The term "Corporation" includes, as the context may require, any
resulting corporation and any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger,
so that any person who is or was a director, officer, employee, or
agent of a constituent corporation, or is or was serving at the
request of a constituent corporation as a director, officer,
employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, is in the same position with
respect to the resulting or surviving corporation as he would have
been with respect to such constituent corporation if its separate
existence had continued.
The term "expenses" includes, without limitation, all costs,
expenses, attorneys' fees, and paralegal expenses incurred by the
Director or officer in, for or related to the proceeding or in
connection with investigating, preparing to defend, defending, being
a witness in or participating in the proceeding, including such
costs, expenses, attorneys' fees and paralegal expenses incurred on
appeal. Such attorneys' fees shall include without limitation, (a)
attorneys' fees incurred by the Director or officer in any and all
judicial or administrative proceedings, including appellate
proceedings, arising out of or related to the proceedings; (b)
attorneys' fees incurred in order to interpret, analyze or evaluate
that person's rights and remedies in
13
the proceedings or under any contracts or obligations which are the
subject of such proceeding; and (c) attorneys' fees to negotiate
with counsel for any claimants, regardless of whether formal legal
action is taken against him.
The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed to any
employee benefit plan), and expenses actually and reasonably
incurred with respect to a proceeding;
The term "not opposed to the best interest of the Corporation"
describes the actions of a person who acts in good faith and in a
manner he reasonably believes to be in the best interests of the
Corporation or the participants and beneficiaries of an employee
benefit plan, as the case may be;
The term "other enterprise" includes employee benefit plans;
The term "proceeding" includes any threatened, pending, or completed
action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal to
which the person is a party by reason of the fact that he is or was
a Director or officer of the Corporation or is now 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;
The term "serving at the request of the Corporation" includes any
service as a Director, officer, employee or agent of the Corporation
that imposes duties on such persons, including duties relating to an
employee benefit plan and its participants or beneficiaries.
Section 2. Indemnification
The Corporation shall indemnify any person who was or is a party to
any proceeding (other than an action by, or in the right of, the
Corporation), by reason of the fact that he is or was a Director,
officer, employee, or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust
or other enterprise against liability incurred in connection with
such proceeding, including any appeal thereof if he acted in good
faith and in a manner he reasonably believed to be in, or not
opposed to the best interests of the Corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any proceeding
by judgment, order, settlement, or conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or
14
not opposed to the best interests of the Corporation or, with
respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
The Corporation shall indemnify any person, who was or is a party to
any proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a
Director, officer, employee, or agent of the Corporation or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust, or other enterprise, against expenses and
amounts paid in settlement not exceeding, in the judgment of the
Board of Directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding,
including any appeal thereof. Such indemnification shall be
authorized if such person acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests
of the Corporation, except that no indemnification shall be made
under this section in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable unless, and
only to the extent that, the court in which such proceeding was
brought, or any other court of competent jurisdiction, shall
determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
Section 3. Mandatory Indemnification
To the extent that a Director, officer, employee, or agent of the
Corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in Section 2 above, or in
defense of any claim, issue, or matter therein, he shall be
indemnified against expenses actually and reasonably incurred by him
in connection therewith.
Section 4. Determination of Indemnification
Any indemnification under Section 2 above, unless pursuant to a
determination by a court, shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the Director, officer, employee, or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 2 above. Such determination
shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of Directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the Board of
Directors (in which
15
Directors who are parties may participate) consisting solely of two
or more Directors not at the time parties to the proceeding;
(c) By independent legal counsel;
1. Selected by the Board of Directors prescribed in
subsection (a) or the committee prescribed in subsection
(b); or
2. If a quorum of the Directors cannot be obtained for
subsection (a) and the committee cannot be designated
under subsection (b), selected by majority vote of the
full Board of Directors (in which Directors who are
parties may participate); or
(d) By the Shareholders by a majority vote of a quorum consisting of
Shareholders who were not parties to such proceeding or, if no such
quorum is obtainable, by a majority vote of Shareholders who were
not parties to such proceeding.
Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the
determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal
counsel, persons specified by subsection (c) shall evaluate the
reasonableness of expenses and may authorize indemnification.
Section 5. Advancement of Expenses
Expenses incurred by an officer or Director in defending a civil or
criminal proceeding may be paid by the Corporation in advance of the
final disposition of such proceeding upon receipt of an undertaking
by or on behalf of such Director or officer to repay such amount if
he is ultimately found not to be entitled to indemnification by the
Corporation pursuant to these Bylaws. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the Board of Directors deems appropriate.
Section 6. Exclusivity, Nonpermissible Indemnity
The indemnification and advancement of expenses provided by these
Bylaws are not exclusive, and the Corporation may make any other or
further indemnification or advancement of expenses of any of its
Directors, officers, employees, or agents, under any agreement, vote
of shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office. However, indemnification or advancement
of expenses shall not be made to or on behalf of any Director,
officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or
16
omissions to act, were material to the cause of action so
adjudicated and constitute:
(a) A violation of the criminal law, unless the Director, officer,
employee, or agent had reasonable cause to believe his conduct was
lawful or had no reasonable cause to believe his conduct was
unlawful;
(b) A transaction from which the Director, officer, employee, or
agent derived an improper personal benefit;
(c) In the case of a Director, a circumstance under which the
liability provisions of Florida Statute Section 607.0834 or its
successor are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the Corporation in a proceeding by or in the right of
the Corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
Section 7. Continuing Indemnification
Indemnification and advancement of expenses as provided herein shall
continue as, unless otherwise provided when authorized or ratified,
to a person who has ceased to be a Director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person, unless otherwise provided when
authorized or ratified.
Section 8. Court Ordered Indemnification
Notwithstanding the failure of the Corporation to provide
indemnification, and despite any contrary determination of the Board
or of the Shareholders in the specific case, a Director, officer,
employee or agent of the Corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses,
or both, to the court conducting the proceeding, to the circuit
court, or to another court of competent jurisdiction. On receipt of
an application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification
or advancement of expenses, if it determines that:
(a) The Director, officer, employee, or agent is entitled to
mandatory indemnification under Section 3, in which case the court
shall also order the Corporation to pay the director reasonable
expenses incurred in obtaining court-ordered indemnification or
advancement of expenses;
(b) The Director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of
the exercise by the Corporation of its power pursuant to Section 6;
or
17
(c) The Director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses,
or both, in view of all the relevant circumstances, regardless of
whether such person met the standard of conduct set forth in Section
2 or Section 6.
Section 9. Insurance
The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a Director, officer, employee,
or agent of the Corporation or is or was serving at the request of
the Corporation as a Director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred
by him in any such capacity or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of these Bylaws.
Section 10. Notification of Shareholders
If the Corporation indemnifies or advances expenses to any Director,
officer, employee, or agent under these Bylaws or pursuant to
applicable law otherwise than by court order or action by the
Shareholders or by an insurance carrier pursuant to insurance
maintained by the Corporation, the Corporation shall report the
indemnification or advance in writing to the Shareholders with or
before the notice of the next shareholders' meeting, or prior to
such meeting if the indemnification or advance occurs after the
giving of such notice but prior to the time such meeting is held,
which report shall include a statement specifying the persons paid,
the amounts paid, and the nature and status at the time of such
payment of the litigation or threatened litigation.
Section 11. Other Rights
The rights of a person hereunder shall be in addition to any other
rights such person may have under the Corporation's Articles of
Incorporation or the Florida Business Corporation Act or otherwise,
and nothing herein shall be deemed to diminish or otherwise restrict
such person's right to indemnification under any such other
provision. It is the intent of this Bylaw to provide the maximum
indemnification possible under the applicable law.
Section 12. Interpretation and Invalid Provisions
This Article VII shall be interpreted to permit indemnification to
the fullest extent permitted by law. If any part of this Article
shall be found to be invalid or ineffective in any action, suit or
proceeding, the validity and effect of the remaining part thereof
shall not be affected. The provisions of this Article VII shall be
applicable to all proceedings commenced after the
18
adoption hereof, whether arising from acts or omissions occurring
before or after its adoption.
ARTICLE VIII
AMENDMENTS
Section 1. Method of Amendment or Change
These Bylaws may be amended or repealed and additional Bylaws added
or adopted by a majority vote of the Board of Directors so long as
the proposed action is not inconsistent with any Bylaws which may
have been adopted at any Shareholders' meeting. These Bylaws may be
amended or repealed at any Shareholders' meeting.
Date of adoption: March 22, 2002.
Dates Referenced Herein and Documents Incorporated by Reference
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