EXHIBIT 3.2
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BYLAWS
OF
OLD FLORIDA BANKSHARES, INC.
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TABLE OF CONTENTS
Page
ARTICLE I - Meeting of Shareholders ...........................................1
Section 1. Annual Meeting .................................................1
Section 2. Special Meetings ...............................................1
Section 3. Place ..........................................................1
Section 4. Action by Shareholders Without a Meeting .......................1
Section 5. Notice of Meeting ..............................................2
Section 6. Notice of Adjourned Meetings ...................................2
Section 7. Waiver of Notice ...............................................3
Section 8. Record Date ....................................................3
Section 9. Shareholders' List for Meeting .................................3
Section 10. Voting Entitlement of Shares ...................................4
Section 11. Proxies ........................................................4
Section 12. Shareholder Quorum and Voting ..................................5
Section 13. Voting Trusts ..................................................5
Section 14. Shareholders' Agreements .......................................5
ARTICLE II - Directors ........................................................6
Section 1. General Powers .................................................6
Section 2. Qualifications of Directors ....................................6
Section 3. Number .........................................................6
Section 4. Election and Term ..............................................6
Section 5. Vacancy on Board ...............................................6
Section 6. Removal of Directors by Shareholders ...........................7
Section 7. Compensation ...................................................7
Section 8. Presumption of Assent ..........................................7
Section 9. Directors' Meetings ............................................7
Section 10. Notice of Meetings .............................................7
Section 11. Waiver of Notice ...............................................7
Section 13. Action by Directors Without a Meeting ..........................7
Section 14. Adjournments ...................................................8
Section 15. Participation by Conference Telephone ..........................8
ARTICLE III - Committees ......................................................8
Section 1. Executive and Other Committees .................................8
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Page
ARTICLE IV - Officers .........................................................9
Section 1. Officers, Election and Terms of Office .........................9
Section 2. Resignation and Removal of Officers ............................9
Section 3. Vacancies ......................................................9
Section 4. Chairman of the Board ..........................................9
Section 5. President .....................................................10
Section 6. Vice President ................................................10
Section 7. Secretary .....................................................10
Section 8. Treasurer .....................................................11
Section 9. Delegation of Duties ..........................................11
ARTICLE V - Stock Certificates ...............................................11
Section 1. Issuance ......................................................11
Section 2. Signatures; Form ..............................................11
Section 3. Transfer of Stock .............................................12
Section 4. Lost Certificates .............................................12
ARTICLE VI - Indemnification .................................................13
Section 1. Definitions ...................................................13
Section 2. Indemnification of Officers, Directors, Employees and Agents ..14
ARTICLE VII - General Provisions .............................................17
Section 1. Fiscal Year ...................................................17
Section 2. Seal ..........................................................17
Section 3. Amendment of Bylaws ...........................................17
CERTIFICATE OF ADOPTION ......................................................17
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BYLAWS
OF
OLD FLORIDA BANKSHARES, INC.
ARTICLE I
Meeting of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders of
this Corporation shall be held following the end of the Corporation's fiscal
year at such time as shall be determined by the Board of Directors. The annual
meeting shall be held for the election of directors of the Corporation and the
transaction of any business which may be brought before the meeting. The annual
meeting of the shareholders for any year shall be held no later than thirteen
months after the last preceding annual meeting of shareholders. The failure to
hold the annual meeting at the time stated shall not affect the validity of any
corporate action and shall not work a forfeiture of or dissolution of the
Corporation. Annual meetings shall be held at the Corporation's principal office
unless stated otherwise in the notice of the annual meeting.
Section 2. Special Meetings. Special meetings of the shareholders
shall be held when directed by the Chairman of the Board, the President or the
Board of Directors, or when requested in writing by the holders of not less than
one-tenth of all the votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting. Shareholders should sign, date, and
deliver to the Corporation's Secretary one or more written demands for the
meeting describing the purpose or purposes for which it is to be held. A meeting
requested by shareholders shall be called for a date not less than ten nor more
than sixty days after the request is made. The call for the meeting shall be
issued by the Secretary, unless the Chairman of the Board, the President, the
Board of Directors, or shareholders requesting the calling of the meeting shall
designate another person to do so.
Section 3. Place. Meetings of shareholders may be held either within or
without the State of Florida. Unless otherwise directed by the Board of
Directors, meetings of the shareholders shall be held at the principal offices
of the Corporation in the State of Florida.
Section 4. Action by Shareholders Without a Meeting. Action that is
required or permitted to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice, and without
a vote if the action is taken by the holders of outstanding stock of each voting
group entitled to vote thereon having not less than a 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 this State, its principal place of business, the corporate
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 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 shall be effective unless in writing and until received by
the Corporation at its principal office in this State or its principal place of
business, or received by the corporate 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 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 Florida law, 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 further
provisions of Florida law regarding the rights of dissenting shareholders.
A consent signed under this Section has the effect of a meeting vote
and may be described as such in any document.
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.
Section 5. Notice of Meeting. The Corporation shall notify shareholders
in writing of the date, time, and place of each annual and special shareholders'
meeting no fewer than ten or more than sixty days before the meeting date.
Notice of a shareholders' meeting may be communicated or delivered to any
shareholder in person, or by teletype, telegraph or other form of electronic
communication, or by mail, by or at the direction of the Chairman of the Board,
the President, the Secretary, or the officer or persons calling the meeting. If
notice is mailed, it shall be deemed to be delivered when deposited in the
United States mail addressed to the shareholder at her address as it appears on
the stock transfer books of the Corporation, with postage thereon prepaid.
Section 6. Notice of Adjourned Meetings. When an annual or special
shareholders' meeting is adjourned to a different date, time or place, notice
need not be given of the new date, time or place if the new date, time or place
is announced at the meeting before an adjournment is taken, and any business may
be transacted at the adjourned meeting that might have been transacted on the
original date of the meeting. If, however, after the adjournment the Board of
Directors fixes a new
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record date for the adjourned meeting, a notice of the adjourned meeting must be
given to persons who are shareholders as of the new record date who are entitled
to notice of the meeting.
Section 7. Waiver of Notice. A shareholder may waive any notice
required by the Articles of Incorporation or Bylaws before or after the date and
time stated in the notice. The waiver must be in writing, be signed by the
shareholder entitled to the notice, and be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. Attendance by a
shareholder at a meeting waives objection to lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting.
Section 8. Record Date. For the purpose of determining the shareholders
entitled to notice of a shareholders' meeting, to demand a special meeting, to
vote, or to take any other action, the Board of Directors may fix the record
date for any such determination of shareholders.
The record date for determining shareholders entitled to demand a
special meeting is the date the first shareholder delivers her demand to the
Corporation. The record date for determining shareholders entitled to take
action without a meeting is the date the first signed written consent is
delivered to the Corporation under Section 4 of this Article. A record date for
purposes of this Section may not be more than 70 days before the meeting or
action requiring a determination of shareholders.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date for the adjourned meeting.
Section 9. Shareholders' List for Meeting. After fixing a record date
for a meeting, the Corporation shall prepare an alphabetical list of the names
of all its shareholders who are entitled to notice of a shareholders' meeting,
arranged by voting group with the address of, and the number and class and
series, if any, of shares held by each. The shareholders' list shall be
available for inspection by any shareholder for a period of ten days prior to
the meeting or such shorter time as exists between the record date and the
meeting and continuing through the meeting at the Corporation's principal
office, at a place identified in the meeting notice in the city where the
meeting will be held, or at the office of the Corporation's transfer agent or
registrar. A shareholder or her agent or attorney is entitled on written demand
to inspect the list, during regular business hours and at the shareholder's
expense, during the period it is available for inspection.
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The Corporation shall make the shareholders' list available at the
meeting, and any shareholder or her agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment.
Section 10. Voting Entitlement of Shares. Except as provided
otherwise in the Articles of Incorporation or herein, each outstanding share,
regardless of class, is entitled to one vote on each matter submitted to vote at
a meeting of the shareholders. Shares standing in the name of another
Corporation, domestic or foreign, may be voted by such officer, agent, or proxy
as the bylaws of the corporate shareholder may prescribe or, in the absence of
any applicable provisions, by such person as the board of directors of the
corporate shareholder may designate. In the absence of any such designation or
in case of conflicting designation by the corporate shareholder, the Chairman of
the Board, the President, any Vice President, the Secretary, and the Treasurer
of the corporate shareholder, in that order, shall be presumed to be fully
authorized to vote such shares.
Shares entitled to vote held by an administrator, executor, guardian,
personal representative, or conservator may be voted by her, either in person or
by proxy, without a transfer of such shares into her name. Shares standing in
the name of a trustee may be voted by her, either in person or by proxy, but no
trustee shall be entitled to vote shares held by her without a transfer of such
shares into her name or the name of her nominee.
Shares held by or under the control of a receiver, a trustee in
bankruptcy proceedings, or an assignee for the benefit of creditors may be
voted by her without the transfer thereof into her name.
Nothing herein contained shall prevent trustees or other fiduciaries
holding shares registered in the name of a nominee from causing such shares to
be voted by such nominee as the trustee or other fiduciary may direct. Such
nominee may vote shares as directed by a trustee or other fiduciary without the
necessity of transferring the shares to the name of the trustee or other
fiduciary.
Section 11. Proxies. A shareholder, other person entitled to vote on
behalf of a shareholder pursuant to law, or attorney in fact, may vote the
shareholder's shares in person or by proxy.
A shareholder may appoint a proxy to vote or otherwise act for her by
signing an appointment form, either personally or by her attorney in fact. An
executed telegram or cablegram appearing to have been transmitted by such
person, or a photographic, photostatic, telecopy or equivalent reproduction of
an appointment form is a sufficient appointment form. An appointment of a proxy
is effective when received by the Secretary or other officer authorized to
tabulate votes and is valid for up to eleven months unless a longer period is
expressly provided in the appointment form.
The death or incapacity of a shareholder appointing a proxy does not
affect the right of the Corporation to accept the proxy's authority unless
notice of the death or incapacity is received by the Secretary or other officer
or agent authorized to tabulate votes before the proxy exercises her authority
under the appointment.
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Section 12. Shareholder Quorum and Voting. A majority of the shares
entitled to vote, represented in person or by proxy, shall constitutes a quorum
at a meeting of shareholders.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
Articles of Incorporation or applicable law requires a greater number of
affirmative votes. After a quorum has been established at a shareholders'
meeting, a subsequent withdrawal of shareholders, so as to reduce the number of
shares entitled to vote at the meeting below the number required for a quorum,
shall not affect the validity of any action taken at the meeting or any
adjournment thereof.
Section 13. Voting Trusts. One or more shareholders may create a voting
trust, conferring on a trustee the right to vote or otherwise act for them, by
signing an agreement setting out the provisions of the trust (which may include
anything consistent with its purpose) and transferring their shares to the
trustee. When a voting trust agreement is signed, the trustee shall prepare a
list of the names and addresses of all owners of beneficial interests in the
trust, together with the number and class of shares each transferred to the
trust, and deliver copies of the list and agreement to the Corporation's
principal office. After filing a copy of the list and agreement in the
Corporation's principal office, such copy shall be open to inspection by any
shareholder of the Corporation or any beneficiary of the trust under the
agreement during business hours.
A voting trust is valid for not more than ten years after its effective
date, provided that all or some of the parties to a voting trust may extend it
for additional terms of not more than ten years each by signing an extension
agreement and obtaining the voting trustee's written consent to the extension.
An extension is valid for the period set forth therein, up to ten years, from
the date the first shareholder signs the extension agreement. The voting trustee
must deliver copies of the extension agreement and list of beneficial owners to
the Corporation's principal office. An extension agreement binds only those
parties signing it.
Section 14. Shareholders' Agreements. Two or more shareholders may
provide for the manner in which they will vote their shares by signing an
agreement for that purpose.
When a shareholders' agreement is signed, the shareholders parties
thereto shall deliver copies of the agreement to the Corporation's principal
office. After filing a copy of the agreement in a Corporation's principal
office, such copy shall be open to inspection by any shareholder of the
Corporation, or any party to the agreement during business hours.
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ARTICLE II
Directors
Section 1. General 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 its Board of Directors.
Section 2. Qualifications of Directors. Directors must be natural
persons who are eighteen years of age or older but need not be residents of this
state or shareholders of this Corporation.
Section 3. Number. The Board of Directors of this Corporation as of the
date of adoption of these Bylaws shall consist of seven (7) members. The number
of directors may be increased or decreased from time to time by action of the
Board of Directors, but no decrease shall have the effect of shortening the
terms of any incumbent director. Directors are elected at each annual meeting of
shareholders.
Section 4. Election and Term. The Board of Directors of this
Corporation shall be divided into three classes as equal in number as may be
feasible, with the term of office of one class expiring each year and with the
term of office of those of the first class to expire at the annual meeting of
shareholders in 2002, of the second class to expire at the annual meeting of
shareholders in 2003, and of the third class to expire at the annual meeting of
shareholders in 2004. At each annual meeting of shareholders, successors to the
Directors whose terms shall then expire shall be elected to hold office for
terms expiring at the third succeeding annual meeting. Whenever a vacancy occurs
on the Board of Directors, including a vacancy resulting from an increase in the
number of Directors, it shall be filled by the affirmative vote of a majority of
the remaining Directors, though less than a quorum of the Board of Directors,
and each additional Director shall hold office until the end of the term he or
she is elected to fill and until his or her successor shall have been elected
and qualified in the class to which such Director is assigned. Directors shall
continue in office until the end of their respective term and until his or her
successor is elected and qualifies or until there is a decrease in the number of
Directors. When the number of Directors is changed, any newly created
directorships or any decrease in directorships shall be so assigned among the
classes by a majority of the Directors then in office, though less than a
quorum, as to make all classes as equal in number as may be feasible. No
decrease in the number of Directors shall shorten the term of an incumbent
Director.
Section 5. Vacancy on Board. Any vacancy occurring in the Board of
Directors, including a vacancy from an increase in the number of directors, may
be filled by the affirmative vote of a majority of the remaining directors,
though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall hold office only until the next election of directors by the
shareholders.
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Section 6. Removal of Directors by Shareholders. The shareholders may
remove one or more directors with or without cause. 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.
Section 7. Compensation. The Board of Directors shall have authority to
fix the compensation of directors.
Section 8. Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
such director votes against such action or abstains from voting in respect
thereto because of an asserted conflict of interests.
Section 9. Directors' Meetings. The Board of Directors may hold regular
or special meetings in or out of the state. Meetings of the Board of Directors
may be called at any time by the Chairman of the Board, by the President of the
Corporation, or by any two directors.
Section 10. Notice of Meetings. Regular meetings of the Board of
Directors may be held without notice of the date, time, place or purpose of the
meetings. Special meetings of the Board of Directors must be preceded by at
least two days' notice of the date, time and place of the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 11. Waiver of Notice. Notice of a meeting of the Board of
Directors need not be given to any director who signs a waiver of notice either
before or after the meeting. Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a director states, at the
beginning of the meeting or promptly upon arrival at the meeting, any objection
to the transaction of business because the meeting is not lawfully called or
convened.
Section 12. Quorum and Voting. A majority of the number of directors
fixed by these Bylaws shall constitute a quorum for the transaction of business.
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.
Section 13. Action by Directors 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 action is taken by all members of the
Board or 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 shall be effective when the last director signs the
consent, unless the consent specifies a different effective date. The consent
signed shall have the effect of a meeting vote and may be described as such in
any document.
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Section 14. Adjournments. A majority of the directors present, whether
or not a quorum exists, may adjourn any meeting of the Board of Directors to
another time and place. Notice of any such adjourned meeting shall be given to
the directors who 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.
Section 15. Participation by Conference Telephone. Members of the Board
of Directors may participate in a meeting of such Board by means of a conference
telephone or similar communications equipment by 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.
ARTICLE III
Committees
Section 1. Executive and Other Committees. The Board of Directors, by
resolution adopted by a majority of the full Board of Directors, may designate
from among its members an Executive Committee and one or more other committees
each of which, to the extent provided in such resolution, shall have and may
exercise all the authority of the Board of Directors, except that no committee
shall have the authority to:
(a) Approve or recommend to shareholders actions or proposals required
by law to be approved by shareholders.
(b) Fill vacancies on the Board of Directors or any committee thereof.
(c) Adopt, amend, or repeal the Bylaws.
(d) Authorize or approve the reacquisition of shares unless pursuant to
a general formula or method specified by the Board of Directors.
(e) Authorize or approve the issuance or sale, or contract for the sale
of shares, or determine the designation and relative rights, preferences, and
limitations of a voting group except that the Board of Directors may authorize a
committee (or a senior executive officer of the Corporation) to do so within
limits specifically prescribed by the Board of Directors.
Each committee must have two or more members who serve at the pleasure
of the Board of Directors. The Board, by resolution adopted in accordance with
this Section, may designate one or more directors as alternate members of any
such committee who may act in the place and stead of any absent member or
members at any meeting of such committee.
Neither the designation of any such committee, the delegation thereto
of authority, nor action by such committee pursuant to such authority shall
alone constitute compliance by any member of
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the Board of Directors not a member of the committee in question with her
responsibility to act in good faith, in a manner he reasonably believes to be in
the best interest of the Corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
ARTICLE IV
Officers
Section 1. Officers, Election and Terms of Office. The principal
officers of this Corporation shall consist of a Chairman of the Board (to the
extent one is appointed by the Directors), a President, one or more Vice
Presidents, 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 hold their
respective offices from the date of the meeting at which elected until the time
of the next succeeding meeting of the Board following the annual meeting of the
shareholders. The Board of Directors shall have the power to elect or appoint,
for such term as it may see fit, such other officers and assistant officers and
agents as it may deem necessary, and to prescribe such duties for them to
perform as it may deem advisable. Any two or more offices may be held by the
same person. Failure to elect a Chairman of the Board, President, Vice
President, Secretary or Treasurer shall not affect the existence of the
Corporation.
Section 2. 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 officer or assistant officer, if appointed by another
officer, may likewise be removed by such officer. Removal of any officer shall
be without prejudice to the contract rights, if any, of the person so removed;
however, election or appointment of an officer or agent shall not of itself
create contract rights.
Section 3. Vacancies. Any vacancy, however occurring, in any office may
be filled by the Board of Directors.
Section 4. Chairman of the Board. Subject to the directions of and
limitations imposed by the Board of Directors, the Chairman of the Board shall
coordinate and supervise the activities of all other officers of the
Corporation. The Chairman of the Board shall from time to time call special
meetings of the Board of Directors whenever such Chairman deems it necessary so
to do or whenever the requisite number of the members of the Board of Directors
shall request such Chairman in writing to do so. The Chairman shall preside at
all meetings of the shareholders and
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the directors and shall generally perform such other duties as are delegated to
such Chairman by the Board of Directors.
Section 5. President. The President shall be the chief executive
officer of the Corporation and, subject to the direction of and limitations
imposed by the Board of Directors, shall have general charge of the business,
affairs and property of the Corporation and general supervision over its other
officers and agents. The President shall, in the absence of the Chairman of the
Board, preside at all meetings of the shareholders and the Board of Directors.
The President, unless some other person is thereunto expressly authorized by
resolution of the Board of Directors, shall sign all certificates of stock,
execute all contracts, deeds, notes, mortgages, bonds and other instruments and
papers in the name of the Corporation and on its behalf; subject, however, to
the control, when exercised, of the Board of Directors. The President shall, at
each annual meeting, present a report of the business and affairs of the
Corporation. The President shall have the power to employ and terminate the
employment of all such subordinate officers, agents, clerks and other employees
not herein provided to be selected by the Board, as such President may find
necessary to transact the business of the Corporation, and shall have the right
to fix the compensation thereof.
Section 6. Vice President. One or more Vice Presidents may be
designated by that title or such additional title or titles as the Board of
Directors may determine. A Vice President shall have the powers and perform such
duties as may be delegated to such Vice President by the Board of Directors, or
in the absence of such action by the Board, then by the Chairman of the Board or
by the President. A Vice President (in such order of seniority as may be
determined by the Board of Directors, if any) shall, except as may be expressly
limited by action of the Board of Directors, perform the duties and exercise the
powers of the President during the absence or disability of the President; and,
in such case, concurrently with the President, shall at all times have the power
to sign all certificates of stock, execute all contracts, deeds, notes,
mortgages, bonds and other instruments and documents in the name of the
Corporation on its behalf which the President is authorized to do, but subject
to the control and authority at all times of the Board of Directors. A Vice
President also shall have such powers and perform such duties as usually pertain
to such office or as are properly required by the Board of Directors.
Section 7. Secretary. The Secretary shall keep the minutes of all
meetings of the shareholders and the Board of Directors in a book or books to be
kept for such purposes, and also, when so requested, the minutes of all meetings
of committees in a book or books to be kept for such purposes. The Secretary
shall attend to giving and serving of all notices, and such Secretary shall have
charge of all books and papers of the Corporation, except those hereinafter
directed to be in charge of the Treasurer, or except as otherwise expressly
directed by the Board of Directors. The Secretary shall keep the stock
certificate book or books. The Secretary shall be the custodian of the seal of
the Corporation. The Secretary shall sign with the President all certificates of
stock as the Secretary of this Corporation and as Secretary affix or cause to be
affixed thereto the seal of the Corporation. The Secretary may sign as Secretary
of the Corporation, with the President in the name of the Corporation and on its
behalf, all contracts, deeds, mortgages, bonds, notes and other papers,
instruments and documents, except as otherwise expressly provided by the Board
of Directors, and
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as such, the Secretary shall affix the seal of the Corporation thereto when
required thereby. Under the direction of the Board of Directors, the Chairman of
the Board or the President, the Secretary shall perform all the duties usually
pertaining to the office of Secretary; and such Secretary shall perform such
other duties as may be prescribed by the Board of Directors, the Chairman of the
Board or the President.
Section 8. Treasurer. The Treasurer shall have the custody of all the
funds and securities of the Corporation except as may be otherwise provided by
the Board of Directors, and the Treasurer shall make such disposition of the
funds and other assets of the Corporation as such Treasurer may be directed by
the Board of Directors. The Treasurer shall keep or cause to be kept a record of
all money received and paid out, and all vouchers and receipts given therefor,
and all other financial transactions of the Corporation. The Treasurer shall
have general charge of all financial books, vouchers and papers belonging to the
Corporation or pertaining to its business. The Treasurer shall render an account
of the Corporation's funds at the first meeting of the Board of Directors
immediately following the annual meeting of shareholders of this Corporation,
and at such other meetings as such Treasurer may be requested, and such
Treasurer shall make an annual statement of the finances of the Corporation. If
at any time there is a person designated as Comptroller of the Corporation, the
Treasurer may delegate to such Comptroller such duties and powers as to the
Treasurer may seem proper. The Treasurer shall perform such other duties as are
usually incident by law or otherwise to the office of the Treasurer, and as such
Treasurer may be directed or required by the Board of Directors, the Chairman of
the Board or the President.
Section 9. Delegation of Duties. In the case of the absence or
disability of any officer of the Corporation, or in case of a vacancy in any
office or for any other reason that the Board of Directors may deem sufficient,
the Board of Directors, except as otherwise provided by law, may delegate the
powers or duties of any officer during the period of such officer's absence or
disability to any other officer or to any director.
ARTICLE V
Stock Certificates
Section 1. Issuance, Every holder of shares in this Corporation shall
be entitled to have a certificate, representing all shares to which such holder
is entitled. No certificate shall be issued for any share until such share is
fully paid.
Section 2. Signatures: Form. Certificates representing shares in this
Corporation shall be signed by the President or a Vice President and the
Secretary or an Assistant Secretary and may be sealed with the seal of this
Corporation or a facsimile thereof. The signatures of the President and the
Secretary may be facsimiles if the certificate is manually signed on behalf of a
transfer agent or a registrar, other than the Corporation itself or an employee
of the Corporation. In case any officer who signed or whose facsimile signature
has been placed upon such certificate shall have ceased to
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be such officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer at the date
of its issuance.
Every certificate representing shares which are restricted as to the
sale, disposition or other transfer of such shares shall state that such shares
are restricted as to transfer and shall set forth or fairly summarize such
restrictions upon the certificate. Alternatively, each certificate may state
conspicuously that the Corporation will furnish to any shareholder upon request
and without charge a full statement of such restrictions.
Section 3. Transfer of Stock. Shares of stock of the Corporation shall
be transferred on the books of the Corporation only upon surrender to the
Corporation of the certificate or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or her duly authorized attorney in fact
and with all taxes on the transfer having been paid. The Corporation may refuse
any requested transfer until furnished evidence satisfactory to it that such
transfer is proper. Upon the surrender of a certificate for transfer of stock,
such certificate shall be marked on its face "Canceled." The Board of Directors
may make such additional rules concerning the issuance, transfer and
registration of stock as it deems appropriate.
If any holder of any stock of the Corporation shall have entered into
an agreement with any other holder of any stock of the Corporation or with the
Corporation, or both, relating to a sale or sales or transfer of any shares of
stock of the Corporation, or wherein or whereby any restriction or condition is
imposed or placed upon or in connection with the sale or transfer of any share
of stock of the Corporation, and if a duly executed or certified copy thereof
shall have been filed with the Secretary of the Corporation, none of the shares
of stock covered by such agreement or to which it relates, of any such
contracting shareholder, shall be transferred upon the books of the Corporation
until there has been filed with the Secretary of the Corporation evidence
satisfactory to the Secretary of the Corporation of compliance with such
agreement, and any evidence of any kind or quality, of compliance with the terms
of such agreement which the Secretary deems satisfactory or sufficient shall be
conclusive upon all parties interested; provided, however, that neither the
Corporation nor any director, officer, employee or transfer agent thereof shall
be liable for transferring or effecting or permitting the transfer of any such
shares of stock contrary to or inconsistent with the terms of any such
agreement, in the absence of proof of willful disregard thereof or fraud, bad
faith or gross negligence on the part of the party to be charged; provided,
further, that the certificate of the Secretary, under the seal of the
Corporation, bearing the date of its issuance by the Secretary, certifying that
such an agreement is or is not on file with the Secretary, shall be conclusive
as to such fact so certified for a period of five days from the date of such
certificate, with respect to the rights of any innocent purchaser or transferee
for value of any such shares without actual notice of the existence of any
restrictive agreement.
Section 4. Lost Certificates. Any shareholder claiming a certificate of
stock to be lost or destroyed shall make affidavit or affirmation of the fact
and the fact that such shareholder is the owner and holder thereof, and give
notice of the loss or destruction of same in such manner as the
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Board of Directors may require, and shall give the Corporation a bond of
indemnity in form, and with one or more sureties satisfactory to the Board of
Directors, payable as may be required by the Board of Directors to protect the
Corporation and any person injured by the issuance of the new certificate from
any liability or expense which it or they may incur by reason of the original
certificate remaining outstanding, whereupon the President or a Vice President
and the Secretary or an Assistant Secretary may cause to be issued a new
certificate in the same tenor as the one alleged to be lost or destroyed, but
always subject to approval of the Board of Directors.
ARTICLE VI
Indemnification
Section 1. Definitions. For purposes of this Article VI, the following
terms shall have the meanings hereafter ascribed to them:
(a) "Agent" includes a volunteer.
(b) "Corporation" includes, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger, so that any person who is or was a
director, officer, employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust or
other enterprise, is in the same position with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(c) "Expenses" includes counsel's fees, including those for appeal.
(d) "Liability" includes obligations to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to any employee
benefit plan), and Expenses actually and reasonably incurred with respect to a
Proceeding.
(e) "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.
(f) "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.
(g) "Not Opposed to the Best Interest of the Corporation" describes the
actions of a person who acts in good faith and in a manner he reasonably
believes to be in the best interests of the participants and beneficiaries of an
employee benefit plan.
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(h) "Other Enterprise" includes employee benefit plans.
Section 2. Indemnification of Officers, Directors, Employees and
Agents.
A. The Corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
Corporation), by reason of the fact that he is or was a director, officer,
employee, or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe her 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 in which he reasonably believed to be in, or not opposed to, the best
interest of the Corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that her conduct was unlawful.
B. The Corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment of the
Board of Directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interest of
the Corporation, except that no indemnification shall be made 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 that 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.
C. To the extent that a director, officer, employee, or agent of the
Corporation has been successful on the merits or otherwise in the defense of any
proceeding referred to in subsection A or subsection B, or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by her in connection therewith.
D. Any indemnification under subsection A or subsection B, unless
pursuant to 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
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circumstances because he has met the applicable standard of conduct set forth
herein. Such determination shall be made:
1. By the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties to such proceeding;
2. If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the Board of Directors (in
which directors who are parties may participate) consisting solely of two or
more directors not at the time parties to the proceeding;
3. By independent legal counsel:
a. Selected by the Board of Directors or the
committee;
b. If a quorum of the directors cannot be obtained
and a committee cannot be designated, selected by majority vote of the full
Board of Directors (in which directors who are parties may participate);
4. 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.
E. 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 designated by independent legal
counsel shall evaluate the reasonableness of expenses and may authorize
indemnification.
F. 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 the such proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if he is ultimately
found not to be entitled to indemnification by the Corporation pursuant to this
section. Expenses incurred by other employees and agents may be paid in advance
upon such terms or conditions that the Board of Directors deems appropriate.
G. The indemnification and advancement of expenses provided pursuant to
this Article are not exclusive, and the Corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of
shareholders, or disinterested directors, or otherwise, both as to action in her
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 her actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
15
1. A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe her conduct was
lawful or had no reasonable cause to believe her conduct was unlawful;
2. A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
3. In the case of a director, a circumstance under which the
liability provisions of Section 607.0834, Florida Statutes, are applicable; or
4. 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.
H. Indemnification and advancement of expenses as provided in this
Article 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.
I. 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:
1. The director, officer, employee or agent is entitled to
mandatory indemnification 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;
2. 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; or
3. 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 herein.
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ARTICLE VII
General Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation shall begin
on the first day of January and end on the last day of December in each year.
Section 2. Seal. Board of Directors in its discretion may adopt a seal
for the Corporation in such form as may be determined from time to time by the
Board of Directors.
Section 3. Amendment of Bylaws. The Board of Directors shall have the
power to appeal, alter, amend, and rescind these Bylaws.
CERTIFICATE OF ADOPTION
I hereby certify that the foregoing Bylaws were duly adopted at a
meeting of the Board of Directors held on March 12, 2001.
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
President and Chief Executive Officer of
the Corporation
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