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HomeMy WebLinkAboutBylawsRESTATED BYLAWS OF EDWARD D. STONE, JR. AND ASSOCIATES, INC. A FLORIDA CORPORATION (Adopted , 2003) ARTICLE I. OFFICES AND REGISTERED AGENT Section 1. Principal Office. Edward D. Stone, Jr. and Associates, Inc. (hereinafter referred to as the "Corporation") shall maintain its principal office in the State of Florida. Section 2. Registered Office and Registered Agent. The Corporation shall at all times maintain a registered office in the State of Florida, which registered office need not be the same as the Corporation's place of business. The Corporation's registered office may be changed from time to time by the Board of Directors. The Corporation shall also continuously maintain a registered agent in the State of Florida whose business office shall be located at the Corporation's registered office. The Corporation shall comply with all filing requirements relating to any designation or change of the registered office or registered agent as may be required by law. Section 3. Other Business Office(s1. The Corporation may have such other business office(s), either within or outside of the State of Florida, as the Board of Directors may designate from time to time. ARTICLE II. SHAREHOLDERS Section I. Classes of Stock. The Corporation is authorized to issue three classes of common stock: (i) One Hundred Thousand (100,000) shares of Class A Nonvoting common stock, Ten Cents ($.10) par value per share ("Class A Nonvoting Stock"), (ii) One Hundred Thousand (100,000) shares of Class B Voting common stock, Ten Cents ($.10) par value per share ("Class B Voting Stock"), and (iii) One Million (1,000,000) shares of Class C Voting common stock, Ten Cents ($.10) par value per share ("Class C Voting Stock"). Class A shall have no voting rights except as otherwise provided by law. References to voting and meetings in these Bylaws shall be solely with reference to Class B and Class C Stock and without distinction between the two classes. Class B and Class C Voting Stock shall hereinafter collectively be referred to as "Voting Stock." Section 2. Annual Meeting. An annual meeting of the Shareholders ofthe Corporation shall be held once each calendar year for the purpose of electing Directors and for the transaction of such other business as may properly come before the meeting. This annual meeting of Shareholders shall be held during the month of November each year (or during such other month in that year as determined by the Board of Directors) at such date and time as shall be designated for any such meeting by the Board of Directors. In the absence of any such designation, the annual meeting of Shareholders shall be held at nine o'clock in the morning on the last Thursday of the month during which the annual meeting is to be otherwise held. The Board of Directors may designate any place, either within or outside of the State of Florida, as the place of meeting for any annual meeting of the Shareholders. If the Board of Directors fails to designate the place for the annual meeting of the Shareholders, such meeting shall be held at the Corporation's principal office. Section 3. Special Meetings. Special meetings of the Shareholders of the Corporation shall be held if called by: (i) the Board of Directors; or (ii) the holders of not less than ten percent (10%) of all the votes entitled to be cast on any issue proposed to be considered at the special meeting by signing, dating and delivering to the Corporation's President or Secretary, a demand for the holding of such meeting and the description of the purpose or purposes for which it is to be held. No business shall be transacted at any special meeting of the Shareholders unless such business shall be set forth in the notice of the meeting as one of the purposes of that special meeting. The President may designate any place, either within or outside of the State of Florida, as the place of meeting for any special meeting of the Shareholders so called. If the President shall fail to designate the place for the special meeting of the Shareholders in the notice of meeting, such meeting shall be held at the Corporation's principal office. Section 4. Notice of Meeting, Notice of each annual and special meeting stating the date, time and place of the meeting (in the case of a special meeting, the purpose or purposes for which the meeting is called shall also be set forth in such notice) shall be delivered to each Shareholder of record entitled to vote at such meeting no fewer than ten (10) nor more than sixty (60) days before the date of the meeting. Delivery may be accomplished by hand delivery, telegraph, telephone, teletype, facsimile or other form of electronic communication, or by mail or courier service, by or at the direction of the President or the Secretary. In the absence of notice not sent by the President or Secretary within ten (10) days of receipt of demand by shareholders for a special meeting, such notice may be sent by the designated representative of the shareholders calling the meeting. If mailed, such notice must be by first-class mail, except if mailed thirty (30) days before the date of the meeting, in which case it may be done by a class other than first class. Such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the Shareholder at his or her address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. All other forms of notice shall be effective when received. Notwithstanding the foregoing, no notice of a Shareholders' meeting need be given to a Shareholder if(a) an annual report and proxy statements for two (2) consecutive annual meetings of Shareholders or (b) all and at least two (2) checks in payment of dividends or interest on securities during a twelve (12) month period, have been sent by first-class United States mail, addressed to the Shareholder at his or her address as it appears on the share transfer books of the Corporation, and returned undeliverable to the Corporation unless an officer of the Corporation shall have actual knowledge of the current address of such Shareholder in which case notice shall be sent to such address as a last 2 resort. The obligation of the Corporation to give notice of a Shareholders' meeting to any such Shareholder shall be reinstated once the Corporation has received a new address for such Shareholder for entry on its share transfer books. Section 5. Notice ofAdjourned Meeting. If an annual or special Shareholders' meeting is adjourned to a different date, time or place, it shall not be necessary to give any notice of the adjourned meeting if the date, time and place to which the meeting is adjourned are announced at the meeting at which the 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 a meeting is adjourned to a date more than one hundred twenty (120) days after the date fixed for the original meeting and the Board of Directors fixes a new record date, 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 b. Waiver of Notice. A Shareholder may waive any notice required by any statute, Articles of Incorporation or the Bylaws, before or after the date and time stated in the notice. The waiver must be in writing signed by the Shareholders entitled to such notice, and delivered to the Corporation. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the Shareholders need be specified in any written waiver of notice. Attendance of a Shareholder at a meeting shall constitute a waiver of notice of such meeting, except if at the beginning of the meeting, the Shareholder objects to the transaction of any business. Attendance shall also constitute a waiver of objection to consideration of a particular matter at the meeting that is not within the purpose orpurposes described in the meeting notice, unless the Shareholder objects to considering the matter when it is presented. Section 7. Quorum. A majority of the issued and outstanding shares of Voting Stock, represented in person or by proxy, shall constitute a quorum at a meeting of Shareholders. When a specified item of business is required to be voted on by a class or series of stock, a majority of the shares of such class or series shall constitute a quorum for the transaction of such item of business by that class or series. This quorum requirement may be changed only by an amendment to the Corporation's Articles of Incorporation, but in no event shall a quorum consist of less than one-third (1/3) of the issued and outstanding shares of Voting Stock. Such amendment must meet the same quorum requirement and be adopted by the same vote and voting groups required to take action under the quorum and voting requirements then in effect or proposed to be adopted, whichever is greater. Once a quorum has been established at a meeting of Shareholders, the subsequent withdrawal of Shareholders which shall reduce the number of Voting Stock 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 8. Voting and Shareholder Action. Ifaquorum is present, the affirmative vote of a majority of the issued and outstanding shares of Voting Stock represented at the meeting and 3 entitled to vote on the subject matter shall be the act of the Shareholders, unless a supernumerary vote is otherwise required by the Articles of Incorporation or these Bylaws. Section 9. Proxies. A Shareholder or his or her attomey-in-fact or any other person entitled to vote on behalf of a Shareholder, may vote the Shareholder's share in person or by proxy. A Shareholder may appoint a proxy to vote or otherwise act for him or her by signing an appointment form, either personally or by his or her attorney -in -fact. A facsimile, telegram or cablegram appearing to have been transmitted by such person, or a facsimile, photographic, photostatic, or equivalent reproduction of an appointment form shall be a sufficient appointment form. An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes, and is valid for up to eleven (11) months unless a longer period is expressly provided in the appointment form, regardless of the death or incapacity of the Shareholder appointing a proxy (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 or her authority under the appointment). An appointment of a proxy shall be revocable by the Shareholder unless the appointment form conspicuously states that it is irrevocable and the appointment is coupled with an interest, Section 10. Record Date and Shareholder List. The Board of Directors of the Corporation shall fix a record date to determine the Shareholders entitled to notice of a Shareholders' meeting, to demand a special meeting, to vote or to take any other action. Such record date may not be more than seventy (70) days before the meeting or action requiring a determination of Shareholders and may not be a date preceding the date upon which the resolution fixing the record date is adopted. After fixing a record date for a Shareholders' meeting, the Corporation shall prepare an alphabetical list of the names of all its Shareholders who are entitled to notice of such 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 must be available for inspection by any Shareholder for a period often (10) days prior to the Shareholders' 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 aplace 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 or her agent or attorney is entitled on written demand to inspect the list during regular business hours and at his or her expense, during the period it is available for inspection, on the conditions that: (a) the demand is made in good faith and for a proper purpose, (b) the Shareholder describes with reasonable particularity his or her purpose and the records he or she desires to inspect and (c) the records are directly connected with such purpose. 4 dfr The Corporation shall make the Shareholders' list available at the Shareholders' meeting, and any Shareholder or his or her agent or attorney is entitled to inspect the list at any time during such meeting or any adjournment thereof. The Shareholders' list is prima facie evidence of the identity of Shareholders entitled to examine the Shareholders' List or to vote at a meeting of Shareholders. If the requirements of this section have not been substantially complied with or if the Corporation refuses to allow a Shareholder or his or her agent or attorney to inspect the Shareholders' list before or at the Shareholders' meeting, such meeting shall be adjourned until such requirements are complied with on the demand of any Shareholder in person or by proxy who failed to obtain access to such list. Refusal or failure to comply with the requirements of this section shall not affect the validity of any action taken at such Shareholders' meeting. Section 11. Action by Shareholders Without a Meeting. Any action required or permitted to be taken at any annual or special meeting of the 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 entitled to vote thereon having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all the 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 entitled to vote thereon, and delivered to the Corporation at its principal office in the State of Florida, its principal place of business, the Secretary of the Corporation, or another officer or agent of the Corporation having custody of the book in which proceedings of meetings of Shareholders are recorded. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date of the earliest dated consent delivered in the manner required by this section, written consent signed by the number of holders required to take action are delivered to the Corporation by delivery as set forth in this section. Any written consent may be revoked prior to the date that the Corporation receives the required number of consents to authorize the proposed action. No revocation is effective unless in writing and until received by the Corporation at its principal office, or received by the Secretary of the Corporation or other officer or agent of the Corporation having custody of the book in which proceedings of meetings of Shareholders are recorded. Within ten (10) days after obtaining such authorization by written consent, notice must be given to those Shareholders who have not consented in writing and/or who are not entitled to vote in the action. The notice shall fairly summarize the material features of the authorized action and, if the action be a merger, consolidation or sale or exchange of assets, the notice shall contain a clear statement of the right of Shareholders dissenting therefrom to be paid the fair value of their shares upon compliance with the provisions of Florida law regarding the rights of dissenting Shareholders. 5 A consent signed under this section has the effect ofa meeting vote and may be described as such in any document. Such consent shall be filed with the minutes of proceedings of Shareholders. If the action to which the Shareholders consent would have required the filing ofa certificate had such action been voted on by Shareholders at a meeting thereof, the certificate filed under such other section shall state that written consent has been given in accordance with the provisions of this section. Section 12. Court -Ordered Meeting. The county court where the Corporation's principal office is located (if located in the State of Florida) or where the Corporation's registered office is located (if its principal office is not located in the State of Florida) may, after notice to the Corporation, order a meeting to be held as follows: (a) On application of any Shareholder of the Corporation entitled to vote at an annual meeting of Shareholders if an annual meeting of Shareholders has not been held within any thirteen (13) month period; or (b) On application ofa Shareholder who signed a demand for a special meeting, if notice ofthe special meeting was not given within sixty (60) days after the date the demand was delivered to the Corporation's Secretary, or the special meeting was not held in accordance with the notice. The county court may fix the time and place of the meeting, determine the shares entitled to participate in the meeting, specify a record date for determining Shareholders entitled to notice of and to vote at the meeting, prescribe the form and content of the meeting notice, and enter other orders as may be appropriate. ARTICLE III. DIRECTORS Section 1. Powers. Except as otherwise provided by the Corporation's Articles of Incorporation, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, the Board of Directors. Such powers shall also specifically include the following matters which shall be reserved to the Board: (a) The hiring and termination of all the Corporation's professional advisors; (b) The strategy determination for acquisition of related businesses; (c) The hiring and termination of Officers; (d) The hiring of all professional employees of the Corporation and the termination thereof in accordance with the provisions of the professional employees' written employment agreements with the Corporation; 6 The decisions made in connection with promotions of employees of the Corporation; The sales and/or acquisitions of investments on behalf of the Corporation excluding the sale of all or substantially all of the assets of the Corporation which sale shall be approved by the Shareholders owning a majority of the issued and outstanding Voting Stock; The issuance of all stock of the Corporation, regardless of class of stock; and The change ofa major vendor utilized by the Corporation. Section 2. Number and Qualifications. The Corporation shall be managed by a Board of Directors consisting of five (5) individuals who are eighteen (18) years of age or older, but who need not be residents of the State of Florida or shareholders of the Corporation. The number of Directors may from time to time be increased or decreased (but not less than one [I ]) by the vote of the Shareholders owning a majority of the Voting Stock. Section 3. Cumulative Voting for Directors and Terms of Directors. Notwithstanding anything herein to the contrary regarding voting, at all elections of Directors, each Shareholder shall be entitled to a total number of votes equal to a product which is (i) the total number of shares of Voting Stock then owned by such Shareholder multiplied by (ii) the number of Directorship positions being then being voted upon. The resulting product shall be referred to as the "Cumulative Votes" which votes such Shareholder may cast in total for all Director positions. Each Shareholder may vote a portion of the Cumulative Votes for any one person who shall be eligible for election to a Directorship position then being voted upon. The portion of the Cumulative Votes which maybe cast for any single Director's position shall be equal to a fraction, the numerator of which shall be the number of total Cumulative Votes available to such voting Shareholder, and the denominator of which shall be the total number ofDirectorship positions then being voted upon. The persons with the highest number of votes for the number of Director's positions then being voted upon shall thereupon be elected as Directors for the ensuing year. EXAMPLE: There are five (5) Directorship positions being voted upon, A voting Shareholder has 1,000 shares of Class B Voting Stock and 2,000 shares of Class C Voting Stock (3,000 voting shares total). Since there are five (5) directorship positions being voted upon, the voting Shareholder has 15,000 Cumulative Votes of which he may cast 3,000 for each of five (5) persons who are eligible for election to a Directorship position. The five persons with the highest number of votes from all voting Shareholders shall serve as the five (5) Directors for the ensuing year. The terms of the Directors of the. Corporation shall expire at the next annual meeting of Shareholders following election. Notwithstanding the expiration ofa Director's term, such Director shall continue to serve until his or her successor shall be elected unless the Shareholders vote to decrease the number of Directors at that time. This Section 3 may be amended solely by a vote of the Shareholders owning at least sixty-six and two-thirds percent (66 2/3%) of the Voting Stock. 7 Section 4. Resignation. A Director of the Corporation may resign at any time by delivering written notice to the Board of Directors, the Chairman of the Board of Directors or the Corporation. Such resignation shall take effect when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date, the Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date. Section 5. Removal. Any Director may be removed with or without cause by the Shareholders at a special meeting of the Shareholders in accordance with the provisions of these Bylaws; provided, however, that the removal of a Director without cause shall require the affirmative vote of Shareholders owning at least sixty-six and two thirds (66 2/3) of the outstanding Voting Stock, and the removal of a Director with cause shall require the vote of Shareholders owning more than fifty percent (50%) of the outstanding Voting Stock. The term, "With Cause," shall have the same meaning as defined in Paragraph 10.(a) of the EMPLOYMENT AGREEMENT for PROFESSIONAL SHAREHOLDER -EMPLOYEES of EDWARD D. STONE, JR. AND ASSOCIATES, INC. This Section 5 may be amended solely by a vote of the Shareholders owning at least sixty-six and two-thirds percent (66 2/3%) of the Voting Stock. Section 6. Vacancies. Any vacancy occurring in the Board of Directors, including any vacancy created by reason of an increase in the number of Directors or by removal with or without cause, may be filled by the affirmative vote of a majority of all of the remaining Directors. A vacancy that will occur at a specific later date (by reason of a Director's resignation or otherwise) may be filled before the vacancy occurs in the same manner as above; however, the new Director shall not take office until the vacancy actually occurs. The term of a Director elected to fill a vacancy expires at the next meeting of the Shareholders at which Directors are elected. Section 7. Compensation, The Board of Directors may pay each Director a reasonable stated salary as such or a reasonable fixed sum for attendance at meetings of the Board of Directors or any committee thereof, or both, and may reimburse each Director for his or her expenses of attendance at each meeting. The Board of Directors may also pay to each such Director in such capacity, special compensation appropriate to the value of such Director's services, as determined by the Board of Directors, from time to time. None of these payments shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor. The Board of Directors may determine the compensation of a Director who is also an officer for service as an officer as well as for service as a Director. Section 8. Meetings. The Board ofDirectors may hold regular or special meetings either within or outside of the State of Florida. 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 adjournment, to the other Directors. Meetings of the Board of Directors may be called by the Chairman of the Board, if one is elected, or by the President of the Corporation or any two (2) Directors. Directors shall be deemed present at a meeting of the Board of Directors if a conference 8 telephone or similar communications equipment is used, by means of which all persons participating in the meeting may simultaneously hear each other. Section 9. Action by Directors Without a Meeting. Any action required or permitted to be taken by the Board of Directors at a Board of Directors' meeting or committee meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all (and not less than all) of the Directors. Any such action taken is effective as a meeting vote when the last Director signs the consent, unless the consent specifies a different effective date. Section 10. Notice of Meetings. Regular meetings ofthe Board of Directors may be held without notice of the date, time, place or purpose of the meeting. Special meetings of the Board of Directors must be preceded by at least two (2) days' notice of the date, time, and place of the meeting. The notice need not describe the purpose of the special meeting. Notice may be communicated in person or by telephone (where oral notice is reasonable under the circumstances), by facsimile, telecopy or by mail. Written notice is effective on the earlier of (i) receipt in hand, (ii) five (5) days after deposit in the United States mail, or (iii) one (1) day after facsimile or by telecopy. Section 11. Waiver of Notice. A Director may waive the requirement of notice of a meeting of the Board of Directors by signing a waiver of notice either before or after the meeting. The attendance of a Director at a meeting shall constitute a waiver of notice of such meeting and a waiver of any and all objections to the place or time of such meeting or the manner in which it has been called or convened, except when the 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 had not been Iawfully called or convened. Section 12. Quorum and Voting. A majority of the Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such majority shall be present at the meeting, a majority of the Directors present may adjourn such meeting to another time and place without further notice. Except as otherwise required by law, by the Articles of Incorporation or by these Bylaws, the affirmative vote of the majority of the Directors present at a meeting at which a quorum is present where a vote is taken shall be the act of the Board of Directors. A Director who shall be present at a meeting of the Board of Directors at which corporate action is taken is presumed to have assented to the action taken unless the Director votes against or abstains from such action or objects at the beginning of the meeting (or promptly upon his or her arrival) to holding such meeting or transacting specified business at the meeting. Section 13. Committees. The Board of Directors, by resolution adopted bya majority of the full Board ofDirectors, may designate from among its members; (i) a Compensation Committee, which shall consist ofthe President and the Treasurer; (ii) an Executive Committee with shall consist of those members of the Board so appointed by the Board; and, (iii) one (1) or more other ancillary 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 as limited by law. Such provisions of these Bylaws 9 • which govern meetings, notice and waiver of notice, and quorum and voting requirements of the Board of Directors shall apply in the same manner to meetings of such committees. The Executive Committee, if appointed, shall have such powers and duties as determined by the Board of Directors in such resolution appointing such members. In the absence of specific duties, the Executive Committee shall have all powers and duties which it may lawfully hold pursuant to Florida Statutes. Members of the Executive Committee may be removed and replaced at any time without cause by the Board of Directors. The Compensation Committee shall make all final employee salary and bonus determinations for all professional and nonprofessional employees of the Corporation based upon recommendations from the Board of Directors and input from key employees, and shall have such further powers and duties as may from time to time be conferred upon, or assigned to them by the Board of Directors which are consistent with the purpose of such Committee. Any member of the Compensation Committee may be removed with or without cause by the Shareholders at a special meeting of the Shareholders in accordance with the provisions of these Bylaws; provided, however, that the removal of a member of the Compensation Committee without cause shall require the affirmative vote of Shareholders owning at least sixty-six and two thirds (66 2/3) of the outstanding Voting Stock, and the removal of a member of the Compensation Committee with cause shall require the vote of Shareholders owning more than fifty percent (50%) of the outstanding Voting Stock. The term, "With Cause," shall have the same meaning as defined in Paragraph 10.(a) of the EMPLOYMENT AGREEMENT for PROFESSIONAL SHAREHOLDER -EMPLOYEES of ED WARD D. STONE, JR. AND ASSOCIATES, INC. This Section 5 maybe amended solely by a vote of the Shareholders owning at least sixty-six and two-thirds percent (66 2/3%) of the Voting Stock. Each ancillary committee shall have two (2) or more members who serve at the pleasure of the Board of Directors. The Board, by resolution adopted by a majority of the full Board of Directors, may designate one (1) 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. Section 14. Chairman of the Board. The Board of Directors shall elect a Chairman of the Board to preside at all meetings of the Shareholders and Board of Directors. The Chairman of the Board shall act as President or Treasurer of the Corporation in the event of death or inability to act by reason of illness or disability of the President or Treasurer, as the case may be, until there shall be elected a replacement therefor. Section 15. General Standards for Directors. A Director shall perform his or her duties as a Director, including duties as a member of a committee: (a) in good faith, (b) in a manner he or she reasonably believes to be in the best interest of the Corporation, and (c) with the care an ordinarily prudent person in a like position would exercise under similar circumstances. In performing such duties, a Director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by: (a) One or more officers or employees of the Corporation who the Director reasonably believes to be reliable and competent in the matters present; 10 0) (b) Legal counsel, public accountants or other persons as to matters which the Director reasonably believes are within such person's professional or expert competence; or (c) A committee of the Board of Directors of which the Director shall not be a member if the Director reasonably believes the committee's information and/or recommendation to be reasonably correct. A Director shall not be considered to be acting in good faith if such Director has actual or imputed knowledge concerning the matter in question that would cause such reliance described above to be unwarranted. In performing such duties, a Director may consider such factors as the Director deems relevant, including the long-term prospects and interests of the Corporation and its Shareholders, and the social, economic, legal or other effects of any action on the employees, suppliers, customers of the Corporation or its subsidiaries, the communities and society in which the Corporation or its subsidiaries operate, and the economy of the state and the nation. A Director who performs duties in compliance with this section shall not be liable for any action taken as a Director, or any failure to take any action if the performance of the duties of his or her office were performed in compliance with this section. Section 16. Liability of Directors. A Director shall not be personally liable for monetary damages to the Corporation or any other person for any statement, vote, decision, or failure to act, regarding corporate management or policy, by a Director, unless the Director breached or failed to perform his or her duties as a Director and the Director's breach of, or failure to perform, those duties constitutes: (a) A violation of the criminal law, unless the Director had reasonable cause to believe such conduct was lawful or had noreasonable cause to believe such conduct was unlawful. A judgment or other final adjudication against a Director in any criminal proceeding for a violation of the criminal law estops that Director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law; but does not estop the Director from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe that such conduct was unlawful; (b) A transaction from which the Director derived an improper personal benefit, either directly or indirectly; (c) A vote for or assent to an unlawful distribution; (d) In a proceeding by or in the right of the Corporation to procure a judgment in its favor or by or in the right of a Shareholder, conscious disregard for the best interest of the Corporation, or willful misconduct; or (e) In a proceeding by or in the right of someone other than the Corporation or a Shareholder, recklessness (i.e., a conscious disregard of a risk known, or so obvious that it should have been known, to the Director, and known to the Director, or so obvious that it 11 should have been known, to be so great as to make it highly probable that harm would follow from such action or omission) or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Section 17. Director Conflicts of Interest. No contract or other transaction between the Corporation and one (1) or more of its Directors or any other corporation, firm association or entity in which one (1) or more of its Directors are directors or officers or are financially interested, shall be either void or voidable because of such relationship or interest or because such Director or Directors are present at the meeting of the Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or transaction if: (a) The fact of such relationship or interest is disclosed or known to the Board of Directors or committee which authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested Directors; (b) The fact of such relationship or interest is disclosed or known to the Shareholders entitled to vote, and they authorize, approve or ratify such contract or transaction by vote or written consent; or (c) The contract or transaction is fair and reasonable as to the Corporation at the time it is authorized by the Board of Directors, a committee or the Shareholders. A conflict of interest transaction is authorized, approved, or ratified if it shall receive the vote of a majority of all of the disinterested Directors. Section 18. Loans to Officers, Directors and Employees; Guaranty of Obligations. The Corporation may lend money to, guarantee any obligation of, or otherwise assist any Officer, Director or Employee of the Corporation (or any subsidiary thereof) in procuring any personal loan, whenever, in the judgment of the Board of Directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. Such loan, guaranty or other assistance may be with or without interest and may be unsecured or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation. Section 19. Liability for Unlawful Distributions. A Director who votes for or assents to a distribution made in violation of the Articles of Incorporation or an unlawful distribution as defined in this section shall be personally liable to the Corporation for the amount of the distribution that exceeds what could have been distributed without violating the Articles of Incorporation or without constituting an unlawful distribution if it is established that the Director did not adhere to the general standards for the Directors. An "unlawful distribution" is one which would have the result that (a) the Corporation would not be able to pay its debts as they become due in the usual course of business; or (b) the Corporation's total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the Corporation were to be dissolved at the time 12 of the distribution, to satisfy the preferential rights upon dissolution of Shareholders whose preferential rights are superior to those receiving the distribution. In anyproceeding commenced under this section, a Director has all ofthe defenses ordinarily available to a Director. A Director held liable for an unlawful distribution is entitled to contribution from every other Director who could be liable for the unlawful distribution and from each Shareholder for the amount the Shareholder accepted knowing the distribution was made in violation of the Articles of Incorporation or was an unlawful distribution. ARTICLE IV. QFFICERS Section 1. Officers. The Officers of the Corporation shall include a President, one or more Vice Presidents, a Secretary, and a Treasurer, each of whom shall be elected by the Board of Directors from time to time. Such other officers, assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Directors. The Board of Directors shall delegate to one (1) of the Officers the responsibility for preparing minutes of the meetings of the Shareholders or Directors and for authenticating records of the Corporation. Any two (2) or more offices may be held by the same person. The appointment of an Officer does not itself create rights. Section 2. Election and Term of Office. The Officers of the Corporation shall be elected at each annual meeting of the Board of Directors following the election of Directors. Each Officer shall hold office until the election of Directors at the next annual meeting of the Board of Directors. Despite the expiration of an Officer's term, such Officer will continue to serve until such Director's successor is elected. Section 3. Resignation. 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. Ifa resignation is made effective at a later date and the Corporation accepts the future effective date, its 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. An Officer's resignation does not affect the Corporation's contract rights, if any, with the Officer. Section 4. Removal. The Board of -Directors may remove any Officer at any time with or without cause. An Officer's removal does not affect the Officer's contract rights, if any, with the Corporation. Section 5. Vacancies. A vacancy in any office may be filled by the Board of Directors for the unexpired portion of the term. Section 6. Salaries. The salaries of the Officers shall be fixed by the Board of Directors and no Officer shall be prevented from receiving such salary by reason of the fact that the Officer shall also be a Director of the Corporation. 13 Section 7. President. The President shall be the chief executive officer of the Corporation; and, under the direction of the Board of Directors, shall have general responsibility for the management and direction of the business, properties and affairs of the Corporation. The President shall have general executive powers, including all powers required by law to be exercised by a president of a corporation as such, as well as the specific powers conferred by these Bylaws or by the Board of Directors. Section 8. Vice President. In the absence of both the President and the Chairman of the Board, the Vice President, if one has been appointed or elected by the Board of Directors (or in the event there are more than one (1) Vice Presidents, the Vice Presidents in the order of their appointment, designation or election), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall have general executive powers as well as the specific powers conferred by these Bylaws. Each Vice President shall also have such further powers and duties as may from time to time be conferred upon, or assigned, by the Board of Directors or the President. Section 9. Secretary. The Secretary shall (a) keep the minutes of the proceedings of the Board of Directors and the Shareholders in one (1) or more books provided for that purpose, (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law, (c) be custodian of the corporate records and affix the corporate seal to all documents authorizing the use of the corporate seal, (d) be the registrar of the Corporation and keep a register of the post office addresses of all Shareholders which shall be furnished to the Secretary by the Shareholders, (e) have charge of the stock transfer books of the Corporation, and (f) in general perform all duties incident to the office of Secretary and such other duties assigned to the Secretary by the President or by the Board of Directors. Section 10. Treasurer. The Treasurer shall be the chief financial officer of the Corporation; and shall (a) have charge and custody of and be responsible for all funds and securities of the Corporation, (b) receive and give receipts for monies due and payable to the Corporation from any source whatsoever, and deposit all such monies in the name of the Corporation in such banks, trust companies or other depositories as the Board ofDirectors may select, and (c) in general perform all of the duties assigned to the Treasurer by the President or by the Board of Directors and (d) shall present at each annual meeting of the Shareholders and Directors a report on the condition of the business of the Corporation. If required by the Board ofDirectors, the Treasurer shall be bonded for the faithful discharge of the Treasurer's duties in such sum and with such surety or sureties as the Board of Directors shall determine and at the expense of the Corporation. Section 11. Assistant Secretaries and Assistant Treasurers. If appointed, the Assistant Secretaries and Assistant Treasurers shall perform such duties as shall be assigned by the Board of Directors. 14 tt. tz ARTICLE V. SHARE CERTIFICATES Section 1. Share Certificates. Certificates representing shares of the Corporation for each authorized class of stock shall be in such form as shall be determined by the Board of Directors in accordance with the Florida law. The share certificates shall state the name of the Corporation; the name of the person to whom issued; and the number and class of shares and the designation of the series, if any, the certificate represents. The share certificates shall be signed (either manually or in facsimile) by the President or by the Secretary of the Corporation (or any other Officer designated by the Board of Directors) and may be sealed with the corporate seal or a facsimile thereof. Each share certificate shall be consecutively numbered or otherwise identified. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the stock transfer books of the Corporation. No certificate shall be issued for any share until such share is fully paid. Consideration in the form of a promise to pay money or to perform services is received by the Corporation at the time such promise is made, unless the agreement specifically provides otherwise. Section 2. Transfer of Shares. The Corporation or its duly authorized agent shall register a share certificate presented to it for transfer if (a) the certificate is endorsed or the instruction was originated by the appropriate person or persons, (b) reasonable assurance is given that those endorsements or instructions are genuine and effective, (c) the Corporation or its duly authorized agent has no duty as to adverse claims or has discharged the duty, (d) any applicable law relating to the collection of taxes has been complied with, and (e) the transfer is in fact rightful or is to a purchaser for value in good faith and without notice of any adverse claim. Any new certificate shall be issued only upon surrender of the old certificate, which shall be canceled upon the issuance of the new certificate. The person whose name appears as Shareholder on the books of the Corporation shall be deemed by the Corporation to be the owner of the shares for all purposes. Notwithstanding the foregoing, no shares shall be issued, assigned or transferred on the books of the Corporation to any person unless that person is eligible to become a Shareholder in accordance with, and agrees to be bound by, the Shareholders' Agreement dated , 2003, between the Corporation and the Shareholders, as may be amended from time to time. Section 3. Lost, Destroyed and Stolen Share Certificates. If the owner of a share certificate claims that the owner's share certificate has been lost, destroyed or wrongfully taken, the Corporation or its duly authorized agent shall issue a new share certificate in the place of the original share certificate if the owner (a) requests the issuance of a new share certificate before the Corporation or its duly authorized agent has notice that the share certificate has been acquired by a purchaser for value in good faith and without notice of any adverse claim, (b) files with the Corporation or its duly authorized agent an affidavit stating that the original share certificate has been lost, destroyed or wrongfully taken and agrees to indemnify the Corporation and its agents against any and all claims, damages, losses and expenses, including attorneys' fees, incurred as a result of or arising from any inaccurate or false statement contained in said affidavit, (c) files with the Corporation or its duly authorized agent a sufficient indemnity bond if requested by the Board of Directors, and (d) satisfies any other reasonable requirements imposed by the Corporation or its duly authorized agent. 15 o• ARTICLE VI. RECORDS AND REPORTS Section 1. Corporate Records. The Corporation shall keep as permanent records minutes of all meetings of its Shareholders and Board of Directors, a record of all actions taken by the Shareholders or Board of Directors without a meeting, and a record of all actions taken by a committee of the Board of Directors in place of the Board of Directors on behalf of the Corporation. The Corporation shall maintain accurate accounting records and a record of its Shareholders in a form that permits preparation of a list of the names and addresses of all Shareholders in alphabetical order by class of shares showing the number and series of shares held by each Shareholder. The Corporation shall maintain its records in written form or in another form capable of conversion into written form within a reasonable time. The Corporation shall keep a copy of the following records: (a) Articles of Incorporation or Restated Articles of Incorporation and all amendments thereto which are currently in effect; (b) Bylaws or Restated Bylaws and all amendments thereto which are currently in effect; (c) Resolutions adopted by the Board of Directors creating one (1) or more classes or series of shares and fixing their relative rights, preferences, and limitations, if shares issued pursuant to those resolutions are outstanding; (d) Minutes of all Shareholders' meetings and records of all action taken by Shareholders without a meeting for the past three (3) years; (e) Written communications to all Shareholders generally or all Shareholders of a class or series within the past three (3) years, including the financial statements furnished for the past three (3) years; (f) List of names and business street addresses of the current Directors and Officers of the Corporation; and (g) Copy of the Corporation's most recent Uniform Business Report filed with the Department of State. Section 2. Inspection of Records by Shareholders, Any Shareholder is entitled to inspect and copy, during regular business hours at the Corporation's principal office, any of the records of the Corporation described in the immediately preceding section if the Shareholder gives the Corporation written notice of his or her demand at least five (5) business days before the date on which he or she wishes to inspect and copy said records. 16 • Notwithstanding the foregoing, any Shareholder is entitled to inspect and copy, during regular business hours at a reasonable location specified by the Corporation, any of the following records of the Corporation if the Shareholder meets the requirements of the following paragraph and gives the Corporation written notice of his or her demand at least five (5) business days before the date on which the Shareholder wishes to inspect and copy the following records: (a) Excerpts from minutes of any meeting of the Board of Directors, records of any action of a committee of the Board of Directors while acting in place of the Board of Directors on behalf of the Corporation, minutes of any meeting of the Shareholders, and records of action taken by the Shareholders or Board of Directors without a meeting, to the extent not subject to inspection under the first paragraph of this section; (b) Accounting records of the Corporation; (c) Record of Shareholders; and (d) Any other books and records. Any Shareholder may inspect and copy the records described in Paragraph (b) of this section only if (a) the demand is made in good faith and for a proper purpose, (b) a description with reasonable particularity setting for the specific purpose and the specific records desired for inspection, and (c) a showing that the records are directly connected with his or her purpose. For purposes of this section, a "proper purpose" means a proper purpose reasonably related to such person's interest as a Shareholder. The Corporation may deny any demand for inspection made pursuant to the second paragraph of this section if such demand was made for an improper purpose, or if the demanding Shareholder has within two (2) years preceding the demand sold or offered for sale any list of shareholders of the Corporation or any other corporation, has aided or abetted any person in procuring any list of shareholders for any such purpose, or has improperly used any information secured through any prior examination of the records of the Corporation or any other corporation. If the Corporation's principal office is outside of Florida, any Shareholder is entitled to inspect and copy, during regular business hours at a reasonable location in Florida specified by the Corporation, a copy of the Corporation's Bylaws or Restated Bylaws and all amendments thereto which are currentlyin effect and a list of the names and business street addresses of the current Directors and Officers if the Shareholder gives the Corporation written notice of the demand at least fifteen (15) business days before the date on which the Shareholder wishes to inspect and copy said records. Section 3. Financial Statements for Shareholders. Unless modified by resolution of the Shareholders within one hundred twenty (120) days of the close of each fiscal year, the Corporation shall furnish its Shareholders with annual financial statements for the Corporation that include a balance sheet as of the end of its fiscal year, an income statement for that year, and a statement of cash flows for that year. If financial statements are prepared for the Corporation on the 17 b basis of generally accepted accounting principles, the annual financial statements must also be prepared on that basis. If the Corporation's annual financial statements are reported upon byapublic accountant, the accountant's report must accompany these financial statements. If not, these financial statements must be accompanied by a statement of the President of the Corporation or the person responsible for the Corporation's accounting records: (a) Stating such person's reasonable belief as to whether these financial statements were prepared on the basis ofgenerally accepted accounting principles and, ifnot, describing the basis of preparation; and (b) Describing any respects in which these financial statements were not prepared on a basis of accounting consistent with the financial statements prepared for the preceding year. The Corporation shall mail or hand deliver the annual financial statements to each Shareholder within one hundred twenty (120) days after the close of each fiscal year or within such additional time thereafter as is reasonably necessary to enable the Corporation to prepare its financial statements if, for reasons beyond the Corporation's control, the Corporation is unable to prepare its financial statements within the prescribed period. Thereafter, on written request from a Shareholder who was not mailed the statements, the Corporation shall mail to such Shareholder the latest annual financial statements. Section 4. Other Reports to Shareholders. If the Corporation indemnifies or advances expenses to any Director, Officer, employee, or agent otherwise than by court order or action by the Shareholders or by an insurance carrier pursuant to insurance maintained by the Corporation, the Corporation shall report the indemnification or advance in writing to the Shareholders with or before the notice of the next Shareholders' meeting, or prior to such meeting if the indemnification or advance occurs after the giving of such notice but prior to the time such meeting is held, which report shall include a statement specifying the persons paid, the amounts paid, and the nature and status at the time of such payment of the litigation or threatened litigation. If the Corporation issues or authorizes the issuance of shares for promises to render services in the future, the Corporation shall report in writing to the Shareholders the number of shares authorized or issued, and the consideration received by the Corporation, with or before the notice of the next Shareholders' meeting. Section 5. Uniform Business Reports. The Corporation shall file with the Department of State of the State of Florida, on or after January 1 and on or before May 1 of the year following the calendar year in which the Corporation was incorporated and of every year thereafter, a sworn report, on such forms and containing such information as the Department of State may prescribe. The information on the Uniform Business Report must be current as of the date the Uniform Business Report is executed on behalf of the Corporation. 18 ARTICLE VII. MISCELLANEOUS Section 1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors. Section 2. Dividends. The Board of Directors may, from time to time, declare and the Corporation may pay dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Articles of Incorporation. Section 3. Execution of Instruments. All bills, notes, checks, other instruments for the payment of money, agreements, indentures, mortgages, deeds, conveyances, transfers, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or accepted on behalf of the Corporation by such officers, employees or agents of the Corporation as the Board of Directors may direct. Section 4. Indemnification of Officers, Directors, Employees and Agents. The Corporation shall indemnify any person who was or is a party to any threatened, pending, or completed action, suit or other type of proceeding, whether civil, criminal, administrative or investigative and whether formal or informal: (a) (Other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was a Director, Officer, employee or agent (including a volunteer) of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent (including a volunteer) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans), against any liability for judgments, settlements, penalties, fines (including excise taxes assessed with respect to any employee benefit plans) and expenses (including attorneys' fees and costs) actually and reasonably incurred in connection with such an action, suit or other proceeding, including any appeal thereof, if such proposed indemnitee acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of the Corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of any proceeding by judgment, order, settlement or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation or, with respect to any criminal action or proceeding, had reasonable cause to believe that such conduct was unlawful; and (b) By or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such proposed indemnitee is or was a Director, Officer, employee or agent (including a volunteer) of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent (including a volunteer) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans) against expenses (including attorneys' fees and costs) and amounts paid in settlement, 19 f5 • not exceeding, in the judgment of the Board of Directors, the estimated expense oflitigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such action, suit or other proceeding, including any appeal thereof, if such proposed indemnitee acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue, or matter as to which such proposed indemnitee shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. To the extent that a Director, Officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or other proceeding referred in subsections (a) or (b) above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees and costs) actually and reasonably incurred by him or her in connection therewith. Unless made pursuant to judicial determination, any indemnification under subsections (a) or (b) above 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 of the Corporation is proper in the circumstances because he or she has met the applicablestandard of conduct set forth in subsections (a) or (b) above. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to such action, suit or other proceeding; (ii) if such a quorum is not obtainable or, even if obtainable, by a majority vote of the committee duly.designated by the Board of Directors (in which Directors who are parties may participate) consisting solely of two (2) or more Directors not at the time parties to the such action, suit or other proceeding; (iii) by independent legal counsel selected by the Board of Directors prescribed in subsection (i) above or by the conunittee prescribed in subsection (ii), above, (or by majority vote of the full Board of Directors, in which Directors who are parties to such action, suit or other proceeding may participate, if a quorum of the Directors cannot be obtained or if the committee cannot be designated); or (iv) 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 action, suit or other proceeding. Evaluation of the reasonableness of expenses and authorization of indemnification shall be made in the same manner as the determination that indemnification is permissible. However, if the determination of permissibility is made by independent legal counsel, persons specified by subsection (iii) of the preceding paragraph shall evaluate the reasonableness of expenses and may authorize indemnification. Expenses (including attorneys' fees and costs) incurred by an Officer or Director in defending a civil or criminal action, suit or other proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or other proceeding upon receipt of an undertaking by, or on 20 behalf of, such Director or Officer to repay such amount if he or she 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. The indemnification and advancement of expenses provided pursuant to this section are not exclusive. 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 or 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 of the Corporation if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (a) A violation of the criminal law, unless the Director, Officer, employee or agent had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (b) A transaction from which the Director, Officer, employee or agent derived an improper personal benefit; (c) In the case of a Director, a circumstance under which liability for unlawful distributions may exist; or (d) Willful misconduct or a conscious disregard for the best interests of the Corporation in a proceeding by or in the right of the Corporation to procure a judgment in its favor or in a proceeding by or in the right of a Shareholder. Indemnification and advancement of expenses as provided in this section shall continue, unless otherwise provided, when authorized or ratified, as to a person who has ceased to be a Director, Officer, employee, or agent and, unless otherwise provided when authorized or ratified, shall inure to the benefit of the heirs, executors, and the administrators of such person, The Corporation may purchase and maintain insurance on behalf of any person who is or was a Director, Officer, employee or agent of the Corporation, or who is or was serving at the request of the Corporation as a director, officer, employee or agent (including a volunteer) of another corporation, partnership, joint venture, trust or other enterprise (including employee benefit plans), against any liability for judgments, settlements, penalties, fines (including excise taxes assessed with respect to any employee benefit plan) and expenses (including attomeys' fees and costs) actually and reasonably incurred by such person in any such capacity or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this section. For purposes of this section, the term "serving at the request of the Corporation" includes any service as a Director, Officer, employee or agent of the Corporation that imposes duties on such 21 persons, including duties relating to an employee benefit plan and its participants or beneficiaries, and the term "not opposed to the best interest of the Corporation" describes the actions of a person who acts in good faith and in a manner he or she reasonably believes to be in the best interest of the participants and beneficiaries of an employee benefit plan. In addition, solely for purposes of this section, the teen "Corporation" shall include, in addition to the resulting Corporation, any constituent corporation (including any constituent ofa 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 (including employee benefit plans), is in the same position under this section with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. ARTICLE VIII. AMENDMENTS Except as may be otherwise specifically provided herein or as otherwise set forth in the Articles of Incorporation, these Bylaws may be amended or repealed, in whole or in part, by the Directors of the Corporation; provided, that, any such amendments are not inconsistent with any provision of the Articles of Incorporation or any provisions set forth in Chapter607, Florida Statutes, as may be amended from time to time. ARTICLE IX. SHAREHOLDERS' AGREEMENT Notwithstanding anything herein to the contrary, the provisions of the Shareholders' Agreement dated , 2003, between the Corporation and the Shareholders, as may be amended from time to time, shall, to the extent not inconsistent with applicable law, govern and supersede anyprovisions set forth herein to the contrary and these Bylaws shall be so interpreted and construed. Said Shareholders' Agreement shall constitute an agreement described in Sections 607.0731 and 607.0732, Florida Statutes, and the terms of said Shareholders' Agreement shall be incorporated by reference herein and made a part hereof. ARTICLE X. COORDINATION WITH ARTICLES QF INCORPORATION AND CHAPTER 607, FLORIDA STATUTES Notwithstanding anything herein to the contrary, any provision contained in these Bylaws shall not apply to the extent such provision is inconsistent with applicable law or to the extent such provision is inconsistent with the Articles of Incorporation, as may be amended from time to time. The invalidity or unenforceability of any particular provision of these Bylaws shall not affect the other provisions thereof, and these Bylaws shall be construed in all respects as if such invalid or unenforceable provision has been omitted. 22 ARTICLE XI. REIMBURSEMENT OF DISALLOWED COMPENSATION OR OTHER EXPENSES PAID TO EMPLOYEES If any payments are made by the Corporation to or on behalf of an employee of the Corporation as either (i) compensation for past, present or future services rendered or to be rendered to the Corporation, or (ii) reimbursement for any business related expenses, and subsequent thereto, such payments are disallowed by the Internal Revenue Service ('`IRS"), in whole or in part, as a deductible expense for federal income tax purposes, said employee shall hereupon reimburse the Corporation for the amount of any additional federal or state income tax liability assessed to the Corporation which is attributable to said disallowance, together with any and all interest and penalties thereon. Such reimbursement shall be made within sixty (60) days following the Corporation's written notification to said employee informing him or her of the final disposition of said disallowance by the IRS. The Corporation shall be authorized to withhold any such amounts owed to the Corporation by said employee from any amounts owed by the Corporation to said employee in addition to any other remedies provided by law to which the Corporation may be entitled. This provision shall survive any employee's termination ofemployment except to the extent specifically provided otherwise in any subsequent agreement which specifically incorporates this section by reference. DATED: 212912.4 , 2003 EDWARD D. STONE, JR. AND ASSOCIATES, INC. 23 By: , JOSEPH J. LiALLI President