EXHIBIT 3.38
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BYLAWS
OF
DTEK CANADA, INC.
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TABLE OF CONTENTS
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SECTION CAPTION PAGE
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ARTICLE I - Meetings 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......................6
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 12 Quorum and Voting.........................................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
1
Section 1 Executive and Other Committees............................8
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...................................13
ARTICLE VII - General Provisions...................16
Section 1 Fiscal Year..............................................16
Section 2 Seal.....................................................17
Section 3 Amendment of Bylaws......................................17
CERTIFICATE OF ADOPTION............................17
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BYLAWS
OF
DTEK CANADA, INC.
ARTICLE I
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MEETINGS OF SHAREHOLDERS
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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 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 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
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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 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 his 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
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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 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 his 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
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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 his 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.
The Corporation shall make the shareholders' list 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.
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 provision, 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 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 him, either in
person or by proxy, without a transfer of such shares into his name. Shares
standing in the name of a trustee may be voted by him, either in person or by
proxy, but no trustee shall be entitled to vote shares held by him without a
transfer of such shares into his name or the name of his 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 him without the transfer thereof into his 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
him by signing an appointment form, either personally or by his 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
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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 his
authority under the appointment.
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.
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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.
ARTICLE II
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DIRECTORS
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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 not less than one
(1) member and not more than ten (10) members. The maximum 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. Each person named in the
Articles of Incorporation as a member of the initial Board of Directors shall
hold office until the first shareholders' meeting at which directors are elected
and until such person's successor shall have been elected and qualified or until
such person's earlier resignation, removal from office or death.
At the first annual meeting of shareholders and at each annual
meeting thereafter the shareholders shall elect directors to hold office until
the next succeeding annual meeting. Each director shall hold office for the term
for which such director is elected and until such director's successor shall
have been elected and qualified or until such director's earlier resignation,
removal from office or death.
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.
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
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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 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
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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.
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
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COMMITTEES
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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
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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 the Board of Directors not a
member of the committee in question with his 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
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OFFICERS
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SECTION 1. OFFICERS, ELECTION AND TERMS OF OFFICE. The
principal officers of this Corporation shall consist of a Chairman, a President,
a Secretary, a Treasurer and, in the discretion of the Board of Directors, one
or more Vice Presidents, 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, 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.
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SECTION 4. CHAIRMAN. The Chairman of the Board of Directors
shall preside at all meetings of the Board of Directors, shall be deemed a
senior executive of the Corporation, and shall have and perform such other
duties as from time to time may be assigned to him 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 preside at all meetings of
the shareholders and in the absence of the Chairman, 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 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
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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 as such,
the Secretary shall affix the seal of the Corporation thereto when required
thereby. Under the direction of the Board of Directors, 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 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 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
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STOCK CERTIFICATES
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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 Chairman, the President or a Vice
President, and by the Secretary or an Assistant Secretary or the Treasurer and
may be sealed with the seal of this Corporation or a facsimile thereof. The
signatures of the President, the Secretary and the Treasurer may be facsimiles
if the certificate is manually signed on behalf of a transfer agent or a
registrar, other
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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 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 his 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.
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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 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
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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.
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(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.
(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 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 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 his 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 him in connection therewith.
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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
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 his
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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 omissions to act, were
material to the cause of action so adjudicated and constitute:
1. 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;
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
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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.
ARTICLE VII
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GENERAL PROVISIONS
------------------
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation
shall begin on the first day of July and end on the last day of June in each
year.
SECTION 2. SEAL. The 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 repeal, alter, amend, and rescind these Bylaws.
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CERTIFICATE OF ADOPTION
-----------------------
I hereby certify that the foregoing Bylaws were duly
adopted pursuant to written consent of the shareholders of the Corporation dated
as of June 30, 2000.
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Xxxxxxxx X. Xxxxxx
Secretary of the Corporation
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