UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
August 18, 2015 (August 18, 2015)
QUALITY
DISTRIBUTION, INC.
(Exact name of registrant as specified in its charter)
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| Florida |
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000-24180 |
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59-3239073 |
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of Incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
4041 Park Oaks Boulevard, Suite 200
Tampa, Florida 33610
(Address of principal executive offices including Zip Code)
(813) 630-5826
(Registrant’s telephone number, including area code)
N.A.
(Former name or
former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
INTRODUCTORY NOTE
On August 18, 2015, Quality Distribution, Inc. (the “Company”) completed its previously announced merger (the
“Merger”) with Gruden Merger Sub, Inc. (“Merger Sub”), a Florida Corporation and wholly-owned subsidiary of Gruden Acquisition, Inc., a Delaware corporation (“Parent”), pursuant to that certain Agreement and Plan of
Merger, dated May 6, 2015 (the “Merger Agreement”). The Company was the surviving corporation in the Merger and, as a result of the Merger, has become a wholly-owned subsidiary of Parent. Parent was formed by funds advised by Apax
Partners LLP (“Apax”).
The descriptions contained in this Current Report on Form 8-K of the Merger Agreement and the
transactions contemplated thereby are not complete and are qualified in their entirety by the full and complete text of the Merger Agreement, which is incorporated by reference herein as Exhibit 2.1.
| Item 5.01. |
Change in Control of Registrant. |
As a result of the Merger, a change in control of the
Company has occurred, and the Company is now a wholly-owned subsidiary of Parent. The aggregate value of the transaction was approximately $828 million. The source of funds for the Merger and related transaction expenses included cash equity
contributions from funds advised by Apax and borrowings under a new credit facility.
| Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In connection with the consummation of the Merger, Gary R. Enzor, Richard B. Marchese, Thomas R. Miklich, Annette M. Sandberg and Alan H.
Schumacher resigned from the Board of Directors of the Company and all board committees, effective at the Effective Time.
In connection
with the consummation of the Merger, Gary R. Enzor, Ashish Karandikar, Joseph J. Troy, Mitch Truwit and Vivek Vyas were elected to the Board of Directors of the Company.
| Item 5.03. |
Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the
Effective Time, the certificate of incorporation and bylaws of the Company were amended and restated in their entirety. The Amended and Restated Certificate of Incorporation and Bylaws of the Company are attached hereto as Exhibit 3.1 and
Exhibit 3.2, respectively, and incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
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| Exhibit
Number |
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Description of Exhibits |
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| 2.1 |
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Agreement and Plan of Merger, dated as of May 6, 2015, by and among Quality Distribution, Inc., Gruden Acquisition, Inc. and Gruden Merger Sub, Inc. incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on May 7, 2015. |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of the Company dated as of August 18, 2015. |
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| 3.2 |
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By-Laws of the Company dated as of August 18, 2015. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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(Registrant) |
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| Dated: August 18, 2015 |
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By: |
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/s/ Joseph J. Troy |
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Name: |
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Joseph J. Troy |
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Title: |
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Chief Financial Officer and Executive Vice President |
EXHIBIT INDEX
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| Exhibit
Number |
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Description of Exhibits |
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| 2.1 |
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Agreement and Plan of Merger, dated as of May 6, 2015, by and among Quality Distribution, Inc., Gruden Acquisition, Inc. and Gruden Merger Sub, Inc. incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K filed on May 7, 2015. |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of the Company dated as of August 18, 2015. |
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| 3.2 |
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By-Laws of the Company dated as of August 18, 2015. |
Exhibit 3.1
QUALITY DISTRIBUTION, INC.
AMENDED AND RESTATED ARTICLES OF INCORPORATION
Pursuant to Sections 607.0602, 607.1003, 607.1006, and 607.1007 of the Florida Business Corporation Act (the “FBCA”), Quality
Distribution, Inc., a Florida corporation (the “Corporation”), hereby certifies that:
FIRST: The Corporation is named Quality
Distribution, Inc. and was incorporated in the State of Florida on April 18, 1984, under the name “MTL Inc.” These Amended and Restated Articles of Incorporation amend, restate, and supersede in their entirety any and all prior
Articles of Incorporation, as amended, of the Corporation (including without limitation any Articles of Amendment or Certificates of Designation thereto) filed with the State of Florida from the date of the Corporation’s original incorporation
through the date hereof.
SECOND: These Amended and Restated Articles of Incorporation have been approved by the Board of Directors and
shareholders of the Corporation in connection with the merger of the Company and Gruden Merger Sub, Inc., a Florida corporation, pursuant to a plan of merger under Section 607.1101 of the FBCA in the manner and by the vote required by the FBCA.
ARTICLE I
NAME OF
CORPORATION
The name of this Corporation is: Quality Distribution, Inc.
ARTICLE II
PRINCIPAL OFFICE OF
CORPORATION
The address of the principal office of the Corporation is 3802 Corporex Park Drive, Tampa, Florida 33619.
Meetings of shareholders may be held within or without the State of Florida, as the By-Laws may provide. The books of the Corporation may be
kept (subject to any provision contained in the FBCA) outside the State of Florida at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation.
ARTICLE III
REGISTERED OFFICE
AND REGISTERED AGENT
The address of the registered office of the Corporation in Florida is 3802 Corporex Park Drive, Tampa, Florida
33619. The Corporation’s registered agent at the registered office is Robert Kasak, Esq.
ARTICLE IV
BUSINESS AND PURPOSE
The
general purpose for which this corporation is organized is the transaction of any and all lawful business for which corporations may be incorporated under the Florida Business Corporation Act, and any amendments thereto, and in connection therewith,
this corporation shall have and may exercise any and all powers conferred from time to time by law upon corporations formed under such Act.
ARTICLE V
CAPITAL STOCK
1. Authorized Shares. The total number of shares of stock which the corporation shall have authority to issue is 1000 shares
of common stock, each having a par value of one cent ($0.01) per share.
ARTICLE VI
DIRECTORS
The following
provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and shareholders:
1. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
2. The directors shall have concurrent power with the shareholders to make, alter, amend, change, add to or repeal the By-Laws of the
Corporation.
3. The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide.
4. To the fullest extent
permitted by the FBCA as in effect on the date hereof, and as hereafter amended from time to time, a director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a
director. If the FBCA or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall
be eliminated or limited to the fullest extent permitted by the FBCA, as so amended from time to time, or such successor statute. Any repeal or modification of this Article VI, Section 4 by the shareholders of the Corporation shall not affect
adversely any right or protection of a director of the Corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time.
5. In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the FBCA, these Amended and Restated Articles of Incorporation, and any By-Laws adopted by the
shareholders; provided, however, that no By-Laws hereafter adopted by the shareholders shall invalidate any prior act of the directors which would have been valid if such By-Laws had not been adopted.
ARTICLE VII
INDEMNIFICATION
1. To the
fullest extent permitted by the FBCA, including any amendments thereto (but in the case of any such amendment, only to the extent such amendment permits or requires the Corporation to provide broader indemnification rights than prior to such
amendment), the Corporation shall indemnify any person who is or was a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or other type of proceeding (other than an action by or in the right of the
Corporation), whether civil, criminal, administrative, investigative or otherwise, and whether formal or informal, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise, against judgments, amounts paid in settlement, penalties, fines (including an excise tax assessed with respect to any employee
benefit plan), and expenses (including counsel fees, including those for appeal) actually and reasonably incurred in connection with any such action, suit or other proceeding, including any appeal thereof, if such person acted in good faith and in a
manner such person 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 person’s 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 his or her conduct was unlawful.
2. To the fullest extent permitted by the FBCA, including any amendments thereto (but in the case of any such amendment, only to the extent
such amendment permits or requires the Corporation to provide broader indemnification rights than prior to such amendment), the Corporation shall indemnify any person who is or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or other type of proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including counsel fees, including those for appeal) and amounts paid in settlement not
exceeding, in the judgment of the board of directors, the estimated expense of litigating the action, suit, or other 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. Such indemnification shall be authorized provided such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made under this Section 2 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 action, suit,
or other 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 the court shall deem proper.
3. The right to indemnification conferred in this Article VII shall include the right to be paid
by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (an “advancement of expenses”); provided, however, that an advancement of expenses incurred by a
person in his or her capacity as a director or officer shall be made only upon delivery to the Corporation of an undertaking (an “undertaking”), by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to appeal (a “final adjudication”) that such person is not entitled to be indemnified for such expenses in Section 1 or 2 of this Article VII or otherwise. The
rights to indemnification and to the advancement of expenses conferred in this Article VII shall be contractual rights, and such rights shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the person’s heirs, executors and administrators.
4. The indemnification and advancement of expenses provisions of this
Article VII shall not be exclusive of any other right that any person (and his or her heirs, executors, and administrators) may have or hereafter acquire under any statute, these Amended and Restated Articles of Incorporation, the Corporation’s
By-laws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, or insurance, purchased by the Corporation or otherwise, both as to action in his or her official capacity and as to action in another
capacity. The Corporation is hereby authorized to provide for indemnification and advancement of expenses through its By-laws, resolution of shareholders, resolution of the Board of Directors, or agreement, in addition to that provided by these
Amended and Restated Articles of Incorporation.
5. Neither the amendment nor repeal of this Article VII, nor the adoption of any
provision of these Amended and Restated Articles of Incorporation or the By-laws of the Corporation, nor the adoption or repeal of any resolution of the Board of Directors or the shareholders providing for indemnification nor, to the fullest extent
permitted by Florida law as amended from time to time, any modification of law, shall eliminate or reduce the effect of this Article VII in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification. The
provisions of this Article VII are intended solely for the benefit of the indemnified parties described herein and their heirs and personal representatives and shall not create any rights in favor of third parties.
ARTICLE VIII
AMENDMENTS
The Corporation reserves the right to amend, alter, change or repeal any provision contained in these Amended and Restated Articles
of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted subject to this reservation.
Exhibit 3.2
BY-LAWS
OF
QUALITY DISTRIBUTION, INC.
TABLE OF CONTENTS
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| ARTICLE I |
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| Offices |
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| SECTION A. PRINCIPAL OFFICE |
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| SECTION B. OTHER OFFICES |
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| ARTICLE II |
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| Shareholders |
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| SECTION A. PLACE OF MEETINGS |
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| SECTION B. ANNUAL MEETING |
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| SECTION C. SPECIAL MEETINGS |
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| SECTION D. NOTICE |
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| SECTION E. ADJOURNMENTS |
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2 |
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| SECTION F. QUORUM |
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2 |
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| SECTION G. VOTING |
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| SECTION H. PROXIES |
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| SECTION I. CONSENT OF SHAREHOLDERS IN LIEU OF MEETING |
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| SECTION J. LIST OF SHAREHOLDERS ENTITLED TO VOTE |
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| SECTION K. RECORD DATE |
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| SECTION L. STOCK LEDGER |
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| SECTION M. CONDUCT OF MEETINGS |
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| SECTION N. INSPECTORS |
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| ARTICLE III |
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| Board of Directors |
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| SECTION A. NUMBER AND ELECTION OF DIRECTORS |
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6 |
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| SECTION B. VACANCIES |
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| SECTION C. DUTIES AND POWERS |
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| SECTION D. MEETINGS |
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| SECTION E. ORGANIZATION |
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| SECTION F. RESIGNATION AND REMOVALS OF DIRECTORS |
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| SECTION G. QUORUM |
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| SECTION H. ACTION OF THE BOARD BY WRITTEN CONSENT |
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| SECTION I. MEETING BY TELEPHONE, ETC. |
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| SECTION J. COMMITTEES |
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| SECTION K. COMPENSATION |
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| SECTION L. INTERESTED DIRECTORS |
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| ARTICLE IV |
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| Officers |
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| SECTION A. GENERAL |
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| SECTION B. ELECTION |
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| SECTION C. VOTING SECURITIES OWNED BY THE CORPORATION |
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| SECTION D. DUTIES OF THE CHAIRMAN OF THE BOARD |
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| SECTION E. DUTIES OF THE PRESIDENT |
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| SECTION F. DUTIES OF VICE PRESIDENTS |
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| SECTION G. DUTIES OF THE SECRETARY |
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| SECTION H. DUTIES OF THE TREASURER |
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| SECTION I. DUTIES OF ASSISTANT SECRETARIES |
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| SECTION J. DUTIES OF ASSISTANT TREASURERS |
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| SECTION K. DUTIES OF OTHER OFFICERS |
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| ARTICLE V |
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| Indemnification of Directors and Officers |
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| SECTION A. GENERAL |
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| SECTION B. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION |
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| SECTION C. OBLIGATION TO INDEMNIFY |
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| SECTION D. DETERMINATION THAT INDEMNIFICATION IS PROPER |
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| SECTION E. EVALUATION AND AUTHORIZATION |
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| SECTION F. PREPAYMENT OF EXPENSES |
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| SECTION G. NONEXCLUSIVITY AND LIMITATIONS |
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| SECTION H. CONTINUATION OF INDEMNIFICATION RIGHT |
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| SECTION I. INSURANCE |
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| ARTICLE VI |
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| Stock |
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| SECTION A. FORM OF CERTIFICATES |
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| SECTION B. SIGNATURES |
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| SECTION C. LOST CERTIFICATES |
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| SECTION D. TRANSFERS |
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| SECTION E. DIVIDEND RECORD DATE |
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| SECTION F. RECORD OWNERS |
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| SECTION G. TRANSFER AND REGISTRY AGENTS |
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| ARTICLE VII |
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| Notices |
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| SECTION A. NOTICES |
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| SECTION B. WAIVERS OF NOTICE |
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| ARTICLE VIII |
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| General Provisions |
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| SECTION A. DIVIDENDS |
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| SECTION B. DISBURSEMENTS |
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| SECTION C. FISCAL YEAR |
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| SECTION D. CORPORATE SEAL |
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| ARTICLE IX |
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| Amendments |
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| SECTION A. AMENDMENTS |
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BY-LAWS
OF
QUALITY DISTRIBUTION, INC.
(hereinafter called the “Corporation”)
ARTICLE I
Offices
SECTION A. PRINCIPAL OFFICE. The principal office of the Corporation shall be in Tampa, County of Hillsborough, and State of Florida, or such
other place within or without the state of Florida as the Board of Directors may from time to time determine.
SECTION B. OTHER OFFICES.
The corporation may also have offices at such other places both within and without the State of Florida as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
Shareholders
SECTION A. PLACE OF MEETINGS. Meetings of the shareholders for the election of directors or for any other purpose shall be held at
such time and place, either within or without the State of Florida, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the shareholders shall not be
held at any place, but may instead be held solely by means of remote communication in the manner authorized by the Florida Business Corporation Act (the “FBCA”).
SECTION B. ANNUAL MEETINGS. A meeting of the shareholders shall be held annually for the purpose of electing directors and for transacting
such other business as may come before the meeting. The Annual Meeting of Shareholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the
Annual Meeting of Shareholders.
SECTION C. SPECIAL MEETINGS. Unless otherwise required by law or by the articles of incorporation of the
Corporation, as amended and restated from time to time (the “Articles of Incorporation”), Special Meetings of Shareholders, for any purpose or purposes, may be called by either (i) the Chairman, if there be one, or (ii) the
President, (iii) any Vice President, if there be one, (iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by any such officer at the request in writing of (i) the Board of Directors,
(ii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings or (iii) shareholders owning not less than fifty percent
(50%) of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting of Shareholders, only such business shall be conducted as
shall be specified in the notice of meeting (or any supplement thereto).
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SECTION D. NOTICE . Whenever shareholders are required or permitted to take any action at an
annual or special meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be
present in person and vote at such meeting, and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, written notice of any meeting shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each shareholder entitled to notice of and to vote at such meeting.
SECTION E. ADJOURNMENTS. Any meeting of the shareholders may be adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place, if any, thereof and the means of remote communications, if any, by which shareholders and proxy holders may be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting in accordance with the requirements of Section D hereof shall be given to each shareholder of record entitled to notice
of and to vote at the meeting.
SECTION F. QUORUM. Unless otherwise required by applicable law or the Articles of Incorporation, the
holders of a majority of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of
business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the shareholders, a majority vote of the
shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section E hereof, until a quorum shall be present or represented.
SECTION G. VOTING. Unless otherwise required by law, the Articles of Incorporation or these By-Laws, or permitted by the rules of any stock
exchange on which the Corporation’s shares are listed and traded, any question brought before any meeting of the shareholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number
of votes of the Corporation’s capital stock represented at the meeting and entitled to vote on such question, voting as a single class. Unless otherwise provided in the Articles of Incorporation, and subject to Section L(1) of this Article II,
each shareholder represented at a meeting of the shareholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such shareholder. Such votes may be cast in person or by proxy as provided
in Section H of this Article II. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of the shareholders, in such officer’s discretion, may require that any votes cast at such meeting shall be
cast by written ballot.
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SECTION H. PROXIES. Each shareholder entitled to vote at a meeting of the shareholders or to
express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such shareholder as proxy, but no such proxy shall be voted upon after 11 months from its date, unless such proxy provides
for a longer period. Each proxy shall be effective upon delivery to the Secretary before or at the time of the meeting. A proxy may be revoked at the pleasure of the record owner of the shares to which it relates unless the proxy conspicuously
states it is irrevocable and is coupled with an interest. Without limiting the manner in which a shareholder may authorize another person or persons to act for such shareholder as proxy, the following shall constitute a valid means by which a
shareholder may grant such authority:
(1) A shareholder may execute a writing authorizing another person or persons to act for such
shareholder as proxy. Execution may be accomplished by the shareholder or such shareholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any
reasonable means, including, but not limited to, by facsimile signature.
(2) A shareholder may authorize another person or persons to act
for such shareholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted
with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized by the shareholder. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to
act as proxy for a shareholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
SECTION I.
CONSENT OF SHAREHOLDERS IN LIEU OF MEETING. Unless otherwise provided in the Articles of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Shareholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Florida, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the shareholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail,
return receipt requested.
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Every written consent shall bear the date of signature of each shareholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless,
within sixty (60) days of the earliest dated consent delivered in the manner required by this Section I to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to
its registered office in the State of Florida, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the shareholders are recorded. A telegram, cablegram or other
electronic transmission consenting to an action to be taken and transmitted by a shareholder or proxy holder, or by a person or persons authorized to act for a shareholder or proxy holder, shall be deemed to be written, signed and dated for the
purposes of this Section I, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the telegram, cablegram or other electronic
transmission was transmitted by the shareholder or proxy holder or by a person or persons authorized to act for the shareholder or proxy holder and (ii) the date on which such shareholder or proxy holder or authorized person or persons
transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram,
cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of
Florida, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the shareholders are recorded. Delivery made to the Corporation’s registered office shall be made
by hand or by certified or registered mail, return receipt requested. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the
original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall be given within ten (10) days after obtaining such written consent to those shareholders who have not consented in writing and to each shareholder who is not entitled to vote on the action. The notice shall summarize the material
features of the authorized action and, if the be such for which dissenters’ rights are provided under the FBCA, the notice shall contain a clear statement of the rights of shareholders dissenting therefrom to be paid the fair value of their
shares upon compliance with the provisions of the FBCA regarding the rights of dissenting shareholders.
SECTION J. LIST OF SHAREHOLDERS
ENTITLED TO VOTE. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of the shareholders, a complete list of the shareholders entitled to vote
at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholder, for any purpose germane
to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided
with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available only to shareholders of the Corporation. If the meeting
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is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any shareholder who is present. If
the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any shareholder during the whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting. If the requirements of this section have not been substantially complied with, the meeting shall be adjourned on the demand of any shareholder (in person or by proxy)
until there has been substantial compliance with the requirements. If no demand for adjournment is made, failure to comply with the requirements of this section does not affect the validity of any action taken at the meeting.
SECTION K. RECORD DATE.
(1) In
order that the Corporation may determine the shareholders entitled to notice of or to vote at any meeting of the shareholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board
of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of the shareholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(2) In order that the Corporation may
determine the shareholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Florida, its principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of the shareholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining shareholders entitled to consent to corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking such prior action.
SECTION L. STOCK LEDGER. The stock
ledger of the Corporation shall be the only evidence as to who are the shareholders entitled to examine the stock ledger, the list required by Section J of this Article II or the books of the Corporation, or to vote in person or by proxy at any
meeting of the shareholders.
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SECTION M. CONDUCT OF MEETINGS. The Board of Directors of the Corporation may adopt by resolution
such rules and regulations for the conduct of any meeting of the shareholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the
shareholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the
determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or
participation in the meeting to shareholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants.
SECTION
N. INSPECTORS. In advance of any meeting of the shareholders, the Board of Directors, by resolution, the Chairman or the President shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other
persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the shareholders, the chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make
a certificate of the result of the vote taken and of such other facts as may be required by applicable law.
ARTICLE III
Board of Directors
SECTION A. NUMBER AND ELECTION OF DIRECTORS. The Board of Directors shall consist of not less than one nor more than fifteen members, the
exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided in Section B of this Article III, directors shall be elected by a plurality of the votes cast at each
Annual Meeting of Shareholders and each director so elected shall hold office until the next Annual Meeting of Shareholders and until such director’s successor is duly elected and qualified, or until such director’s earlier death,
resignation or removal. Directors shall be natural persons who are eighteen (18) years of age or older but need not be residents of the state of Florida or shareholders.
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SECTION B. VACANCIES. Unless otherwise required by law or the Articles of Incorporation,
vacancies on the Board of Directors or any committee thereof arising through death, resignation, removal, an increase in the number of directors constituting the Board of Directors or such committee or otherwise may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining director, or by the shareholders. The directors so chosen shall, in the case of the Board of Directors, hold office until the next annual election and until their successors
are duly elected and qualified, or until their earlier death, resignation or removal and, in the case of any committee of the Board of Directors, shall hold office until their successors are duly appointed by the Board of Directors or until their
earlier death, resignation or removal.
SECTION C. DUTIES AND POWERS. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Articles of Incorporation or by these By-Laws required to be exercised or done by
the shareholders.
SECTION D. MEETINGS. Promptly after each annual meeting of shareholders, the Board of Directors shall hold its annual
meeting for the purpose of the election of officers and the transaction of such other business as may come before the meeting. If such meeting is held at the same place as and immediately following such annual meeting of shareholders and if a
majority of the directors are present at such place and time, no prior notice of such meeting shall be required to be given to the directors. The Board of Directors and any committee thereof may hold meetings, both regular and special, either within
or without the State of Florida. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors or such committee,
respectively. Special meetings of the Board of Directors may be called by the Chairman, if there be one, the President, or by any director. Special meetings of any committee of the Board of Directors may be called by the chairman of such committee,
if there be one, the President, or any director serving on such committee. Notice thereof stating the place, date and hour of the meeting shall be given to each director (or, in the case of a committee, to each member of such committee) either by
mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegram or electronic means on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
SECTION E. ORGANIZATION. At each meeting of the Board of Directors or any committee
thereof, the Chairman of the Board of Directors or the chairman of such committee, as the case may be, or, in his or her absence or if there be none, a director chosen by a majority of the directors present, shall act as chairman. Except as provided
below, the Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or of any committee thereof, an
Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the
meeting. Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the Corporation may, but need
not if such committee so elects, serve in such capacity.
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SECTION F. RESIGNATION AND REMOVALS OF DIRECTORS. Any director of the Corporation may resign from
the Board of Directors or any committee thereof at any time, by giving notice in writing or by electronic transmission to the Chairman of the Board of Directors, if there be one, the President or the Secretary of the Corporation and, in the case of
a committee, to the chairman of such committee, if there be one. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such
resignation shall not be necessary to make it effective. Except as otherwise required by applicable law and subject to the rights, if any, of the holders of shares of any class of stock then outstanding, any director(s) or the entire Board of
Directors may be removed from office at any time by the affirmative vote of the holders of at least a majority in voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors, at a meeting
for which the notice stated the purpose (or one of the purposes) was the removal of such director(s). Any director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.
SECTION G. QUORUM. Except as otherwise required by law, or the Articles of Incorporation or the rules and regulations of any securities
exchange or quotation system on which the Corporation’s securities are listed or quoted for trading, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors
constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act of the
Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
SECTION H.
ACTION OF THE BOARD BY WRITTEN CONSENT. Unless otherwise provided by law, the Articles of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board of Directors or such committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
SECTION I. MEETING BY TELEPHONE, ETC. Unless otherwise provided in the Articles of Incorporation or these By-Laws, members of the Board of
Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this Section I shall constitute presence in person at such meeting.
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SECTION J. COMMITTEES. The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation
system on which the securities of the Corporation are listed or quoted for trading. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of
any such committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of a member of a committee, and
in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by law and provided in the
resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it. Each committee shall keep regular minutes and report to the Board of Directors when required. Notwithstanding anything to the contrary contained in this Article III, the resolution of the Board of Directors
establishing any committee of the Board of Directors and/or the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those
set forth in these By-Laws and, to the extent that there is any inconsistency between these By-Laws and any such resolution or charter, the terms of such resolution or charter shall be controlling.
SECTION K. COMPENSATION. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members.
SECTION L. INTERESTED DIRECTORS. No contract or transaction between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director’s or officer’s vote is
counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as
to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in
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good faith by vote of the shareholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a
committee thereof or the shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
Officers
SECTION A. GENERAL. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a Secretary and a
Treasurer. The Board of Directors, in its discretion, also may choose a Chairman of the Board of Directors (who must be a director) and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the Articles of Incorporation or these By-Laws. The officers of the Corporation need not be shareholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation.
SECTION B. ELECTION. The Board of Directors, at its first meeting
held after each Annual Meeting of Shareholders (or action by written consent of shareholders in lieu of the Annual Meeting of Shareholders), shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by the Board of Directors; and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s
earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries
of all officers of the Corporation shall be fixed by the Board of Directors.
SECTION C. VOTING SECURITIES OWNED BY THE CORPORATION.
Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President or any
other officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
SECTION D. DUTIES OF THE CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the
shareholders and of the Board of Directors. The Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation, unless the Board of Directors designates the President as the Chief Executive Officer, and, except where by
law the signature of the President is required, the Chairman of the
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Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors.
During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors shall also perform such other duties and
may exercise such other powers as may from time to time be assigned by these By-Laws or by the Board of Directors.
SECTION E. DUTIES OF
THE PRESIDENT. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-Laws, the Board of Directors or the President. In the absence or disability of
the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the shareholders and, provided the President is also a director, the Board of Directors. If there be no Chairman of the Board of Directors,
or if the Board of Directors shall otherwise designate, the President shall be the Chief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise such other powers as may from time to time be assigned
to such officer by these By-Laws or by the Board of Directors.
SECTION F. DUTIES OF VICE PRESIDENTS. At the request of the President or
in the President’s absence or in the event of the President’s inability or refusal to act (and if there be no Chairman of the Board of Directors), the Vice President, or the Vice Presidents if there are more than one (in the order
designated by the Board of Directors), 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 perform such other duties and
have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of
the President or in the event of the inability or refusal of the President to act, 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.
SECTION G. DUTIES OF THE SECRETARY. The Secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and
record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board of Directors or the President, under whose supervision the
Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the shareholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the
same to any
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instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.
SECTION H. DUTIES OF THE TREASURER. The Treasurer shall have the
custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render
to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of the Treasurer and for the restoration to the
Corporation, in case of the Treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s possession or under the Treasurer’s control
belonging to the Corporation.
SECTION I. DUTIES OF ASSISTANT SECRETARIES. Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of the Secretary’s
inability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
SECTION J. DUTIES OF ASSISTANT TREASURERS. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of Assistant Treasurer and for the restoration to the Corporation, in case of the Assistant Treasurer’s
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Assistant Treasurer’s possession or under the Assistant Treasurer’s control belonging to the
Corporation.
SECTION K. DUTIES OF OTHER OFFICERS. Such other officers as the Board of Directors may choose shall perform such duties and
have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and
powers.
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ARTICLE V
Indemnification of Directors and Officers
SECTION A. GENERAL. To the fullest extent permitted by the FBCA, including any amendments thereto (but in the case of any such amendment, only
to the extent such amendment permits or requires the Corporation to provide broader indemnification rights than prior to such amendment, the Corporation shall indemnify any person who is or was a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or other type of proceeding (other than an action by or in the right of the Corporation), whether civil, criminal, administrative, investigative or otherwise, and whether formal or informal, by reason of
the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against
judgments, amounts paid in settlement, penalties, fines (including an excise tax assessed with respect to any employee benefit plan) and expenses (including counsel fees, including those for appeal) actually and reasonably incurred in connection
with any such action, suit or other proceeding, including any appeal thereof, if such person acted in good faith and in a manner such person 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 person’s conduct was unlawful. The termination of any such action, suit or other 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 that such person 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 person’s conduct was unlawful.
SECTION B.
ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. To the fullest extent permitted by the FBCA, including any amendments thereto (but in the case of any such amendment, only to the extent such amendment permits or requires the Corporation to provide
broader indemnification rights than prior to such amendment, the Corporation shall indemnify any person who is or was a party, or is threatened to be made a party, to any threatened, pending or completed action, suit or other type of proceeding (as
further described in Section A of this Article V) by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request
of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including counsel fees) and amounts paid in settlement not exceeding, in the judgment of the Board of
Directors, the estimated expenses of litigating the action, suit or other 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.
Such indemnification shall be authorized if such person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made under this
Section B 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 action, suit or other 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 the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses that such court
shall deem proper.
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SECTION C. OBLIGATION TO INDEMNIFY. To the extent that a director or officer has been successful
on the merits or otherwise in defense of any action, suit or other proceeding referred to in Section A or Section B of this Article V, or in the defense of any claim, issue or matter therein, such person shall, upon application, be indemnified
against expenses (including counsel fees) actually and reasonably incurred by such person in connection therewith.
SECTION D.
DETERMINATION THAT INDEMNIFICATION IS PROPER. Indemnification pursuant to Section A or Section B of this Article V, unless made under the provisions of Section C of this Article V or unless otherwise made pursuant to a determination by a court,
shall be made by the Corporation only as authorized in the specific case upon a determination that the indemnification is proper in the circumstances because the indemnified person has met the applicable standard of conduct set forth in Section A or
Section B of this Article V. Such determination shall be made either (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the action, suit or other proceeding to which the indemnification
relates; (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 (the designation being one in which directors who are parties may participate) consisting solely
of two or more directors not at the time parties to such action, suit or other proceeding; (3) by independent legal counsel (i) selected by the Board of Directors in accordance with the requirements of subsection (1) or by a committee
designated under subsection (2) or (ii) 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 (the vote being one in which directors who are parties
may participate); or (4) by the shareholders by a majority vote of a quorum consisting of shareholders who were not parties to such action, suit or other 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.
SECTION E. EVALUATION AND AUTHORIZATION. Evaluation of the reasonableness of
expenses and authorization of indemnification shall be made in the same manner as is prescribed in Section D of this Article V for the determination that indemnification is permissible; provided, however, that if the determination as
to whether indemnification is permissible is made by independent legal counsel, the persons who selected such independent legal counsel shall be responsible for evaluating the reasonableness of expenses and may authorize indemnification.
SECTION F. PREPAYMENT OF EXPENSES. Expenses (including attorneys’ fees, paralegals’ fees and court costs) incurred by a director or
officer in defending a civil or criminal action, suit or other proceeding referred to in Section A or Section B of this Article V shall be paid by the Corporation in advance of the final disposition thereof upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if such person is ultimately found not to be entitled to indemnification by the Corporation pursuant to this Article V.
SECTION G. NONEXCLUSIVITY AND LIMITATIONS. The indemnification and advancement of expenses provided pursuant to this Article V shall not be
deemed exclusive of
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any other rights to which a person may be entitled under any law, by-law, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in such person’s
official capacity and as to action in any other capacity while holding office with the Corporation. The Board of Directors may, at any time, approve indemnification of or advancement of expenses to any other person that the Corporation has the power
by law to indemnify, including, without limitation, employees and agents of the Corporation. in all cases not specifically provided for in this Article VI, indemnification or advancement of expenses shall not be made to the extent that such
indemnification or advancement of expenses is expressly prohibited by law.
SECTION H. CONTINUATION OF INDEMNIFICATION RIGHT. Unless
expressly otherwise provided when authorized or ratified by this corporation, indemnification and advancement of expenses as provided for in this Article V shall continue as 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 person, unless otherwise provided when authorized or ratified. For purposes of this Article V, the term “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 or officer 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 under this Article V with respect to the resulting or surviving corporation as
such person would have been with respect to such constituent corporation if its separate existence had continued.
SECTION I. INSURANCE.
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
of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity or arising out of such person’s status as such, whether or not the
Corporation would have the power to indemnify such person against the liability under the provision.
ARTICLE VI
Stock
SECTION A. FORM OF
CERTIFICATES. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation (i) by the Chairman of the Board of Directors, or the President or a Vice President and (ii) by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such shareholder in the Corporation.
SECTION B. SIGNATURES. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
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SECTION C. LOST CERTIFICATES. The Board of Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner’s legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of such certificate or the issuance of such new certificate.
SECTION D. TRANSFERS. Stock of the
Corporation shall be transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by such person’s attorney
lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement or payment of taxes shall not be
required in any case in which the officers of the Corporation shall determine to waive such requirement. Every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by
the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
SECTION E. DIVIDEND RECORD DATE. In order that the Corporation may determine the shareholders
entitled to receive payment of any dividend or other distribution or allotment of any rights or the shareholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action.
If no record date is fixed, the record date for determining shareholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
SECTION F. RECORD OWNERS. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.
SECTION G. TRANSFER AND REGISTRY AGENTS. The Corporation may from time to time maintain one or more transfer offices or agencies and registry
offices or agencies at such place or places as may be determined from time to time by the Board of Directors.
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ARTICLE VII
Notices
SECTION A.
NOTICES. Whenever written notice is required by law, the Articles of Incorporation or these By-Laws, to be given to any director, member of a committee or shareholder, such notice may be given by mail, addressed to such director, member of a
committee or shareholder, at such person’s address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States
mail. Without limiting the manner by which notice otherwise may be given effectively to shareholders, any notice to shareholders given by the Corporation under applicable law, the Articles of Incorporation or these By-Laws shall be effective if
given by a form of electronic transmission if consented to by the shareholder to whom the notice is given. Any such consent shall be revocable by the shareholder by written notice to the Corporation. Any such consent shall be deemed to be revoked if
(i) the Corporation is unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the
Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by
electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the shareholder has consented to receive notice; (ii) if by electronic mail, when directed to an
electronic mail address at which the shareholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the shareholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the shareholder. Notice to directors or committee members may be given personally or by telegram, telex, cable or by
means of electronic transmission.
SECTION B. WAIVERS OF NOTICE. Whenever any notice is required by applicable law, the Articles of
Incorporation or these By-Laws, to be given to any director, member of a committee or shareholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons
entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except
where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any Annual or Special Meeting of Shareholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice unless so required by law, the Articles of
Incorporation or these By-Laws.
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ARTICLE VIII
General Provisions
SECTION A. DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the requirements of the FBCA and the provisions of the
Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section H of Article III hereof), and may
be paid in cash, in property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences
of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION B. DISBURSEMENTS. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time designate.
SECTION C. FISCAL YEAR. The fiscal year of the
Corporation shall be fixed by resolution of the Board of Directors.
SECTION D. CORPORATE SEAL. The corporate seal shall have the name of
the Corporation, the word “SEAL” and the year of incorporation inscribed thereon, and may be a facsimile, engraved, printed or impression seal. An impression of said seal appears on the margin hereof.
SECTION E. PRECEDENT OF ARTICLES OF INCORPORATION. Any provision of the Articles of Incorporation of the Corporation shall, subject to law,
control and take precedent over any provision of these By-laws inconsistent therewith.
ARTICLE IX
Amendments
SECTION A.
AMENDMENTS. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the shareholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of
new By-Laws be contained in the notice of such meeting of the shareholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon
or by a majority of the entire Board of Directors then in office; provided, however, that the Board of Directors may not alter, amend or repeal any By-law if (a) the Articles of Incorporation of the Corporation or the FBCA reserve the power to
alter, amend or repeal any By-law exclusively to the shareholders or (b) if the shareholders, in amending or repealing any By-law, expressly provide that the By-law is not
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subject to amendment or repeal by the Board. As used in this Article IX and in these By-Laws generally, the term “entire Board of Directors” means the total number of directors which
the Corporation would have if there were no vacancies.
* * *
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