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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
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
SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 3, 2011
THE ST. JOE COMPANY
| FLORIDA | 1-10466 | 59-0432511 | ||
| (State or Other Jurisdiction | (Commission File Number) | (IRS Employer | ||
| of Incorporation) | Identification No.) |
133 South WaterSound Parkway, WaterSound, FL 32413
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (850) 588-2300
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 (see General Instruction
A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
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Item 3.03. Modifications to Rights of Security Holders.
On March 4, 2011, the Board of Directors (the “Board”) of The St. Joe Company (the “Company”)
authorized and adopted Amendment No. 1, dated as of March 4, 2011(“Amendment No. 1”), to the
Shareholder Protection Rights Agreement, dated as of February 15, 2011 (the “Shareholder Rights
Agreement”). Amendment No. 1 amends the definition of “Expiration Date” under the Shareholder
Rights Agreement to mean “March 4, 2011”. Accordingly, the rights (the “Rights”), which were
previously dividended to holders of record of Common Stock of the Company as of the close of
business on February 28, 2011, expired upon the expiration of the Rights Agreement and no person
has any rights pursuant to the Rights Agreement or the Rights.
The above summary is not intended to be complete and is qualified in its entirety by reference to
the complete text of Amendment No. 1, a copy of which is filed
as Exhibit 4.1 hereto and is
incorporated by reference herein.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
The Board elected Bruce R. Berkowitz, Charles M. Fernandez, Howard S. Frank and Governor Charles J.
Crist, as directors of the Company, effective as of the filing of the Company’s Annual Report
on Form 10-K at 6:00 a.m. on March 3, 2011 (the “Effective Time”). Effective as of the Effective
Time, John S. Lord, Walter L. Revell and Michael L. Ainslie resigned as members of the Board and
Wm. Britton Greene resigned his positions as President and Chief Executive Officer of the Company.
On March 4, 2011, the Board elected Mr. Berkowitz as Chairman of the Board and Mr. Fernandez as
Vice Chairman of the Board, effective immediately. In addition, the Board appointed new members,
effective immediately, to the Governance and Nominating Committee of the Board, the Compensation
Committee of the Board, the Audit and Finance Committee of the Board, and the Executive Committee
of the Board. The new Governance and Nominating Committee is comprised of Governor Crist, Mr. Frank
and Delores M. Kesler with Governor Crist as the Chair. The new Compensation Committee is comprised
of Governor Crist, Mr. Frank and Ms. Kesler with Ms. Kesler as the Chair. The new Audit and Finance
Committee is comprised of Thomas A. Fanning, Mr. Frank and Ms. Kesler with Mr. Fanning as the
Chair. The Executive Committee, which was established by the Board on March 4, 2011, is comprised
of Mr. Berkowitz, Mr. Fernandez and Hugh M. Durden with Mr. Berkowitz as the Chair.
On March 4, 2011, the Board began a search for a Chief Executive Officer and temporarily authorized
Mr. Durden, effective immediately, to exercise the authority and perform the duties of the Chief
Executive Officer of the Company for a period of not more than 60 days or until the earlier
appointment of a new Chief Executive Officer of the Company.
Mr. Durden, age 68, has served as Chairman of the Board of the Company since August 2008, and he
served as Lead Director from 2003 to 2008. He has also served as Chairman of The Alfred I. duPont
Testamentary Trust since January 2005. From 1972 until 2000, he was an executive with Wachovia
Corporation, serving as President of Wachovia Corporate Services from 1994 to 2000. He is a
director of The Nemours Foundation, Chairman of the EARTH University Investment Committee and a
director of Web.com Group, Inc., a website design and internet services company. Mr. Durden has
gained valuable leadership skills from his extensive executive experience in major organizations.
Also important is the expertise he has acquired in the areas of strategic planning and corporate
governance. Mr. Durden also has current public company experience.
The current intention of the Board is to approve additional director compensation in an amount to
be determined for Mr. Durden as compensation for his agreement to exercise the authority and
perform the duties of Chief Executive Officer of the Company.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On March 4, 2011, the Board approved, effective immediately, the Amended and Restated Bylaws of the
Company (the “Bylaws”), as amended on March 4, 2011. Section 12(c) of Article II of the Bylaws, as
amended on February 8, 2011, was amended in the new Bylaws. Section 12(c) of Article II of the
Bylaws, as amended on February 8, 2011, had previously provided for the election of directors in
non-contested elections by a plurality of the votes cast by the shares entitled to vote. The new
Section 12(c) of Article II of the Bylaws, as amended on March 4, 2011 provides for the election of
directors in non-contested elections by a majority of the votes cast by the shares entitled to
vote.
The above summary is not intended to be complete and is qualified in its entirety by reference to
the complete text of the Bylaws, as amended on March 4, 2011, a copy of which is filed as Exhibit
3.1 hereto and is incorporated by reference herein.
Item 8.01.
Other Events.
On March 4, 2011, Bruce R. Berkowitz, the Chairman of the Board, sent a message to employees of the Company,
a copy of which is filed as Exhibit 99.1 hereto and is incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
3.1 Amended and Restated Bylaws of The St. Joe Company, effective as of March 4, 2011.
4.1 Amendment No. 1, dated as of March 4, 2011, to the Shareholder Protection Rights Agreement,
dated as of February 15, 2011.
99.1 Message from Bruce R. Berkowitz to employees of the Company on March 4, 2011
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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.
THE ST. JOE COMPANY (Registrant) |
||||
| March 4, 2011 | By | /s/ Reece B. Alford | ||
| Name: | Reece B. Alford | |||
| Title: | Senior Vice President Corporate Counsel and Secretary |
|||
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EXHIBIT INDEX
| Exhibit | ||
| No. | Document Description | |
3.1
|
Amended and Restated Bylaws of The St. Joe Company, dated March 4, 2011. | |
4.1
|
Amendment No. 1, dated as of March 4, 2011, to the Shareholder Protection Rights Agreement, dated as of February 15, 2011. | |
99.1
|
Message from Bruce R. Berkowitz to employees of the Company on March 4, 2011. |
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF THE ST. JOE COMPANY
OF THE ST. JOE COMPANY
(as last
amended on March 4, 2011)
Article I. Offices
The principal office of The St. Joe Company (the “Corporation”) may be located at such
place as the Board of Directors may fix from time to time. The Corporation may have offices at
such other places, within or 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. Meetings of Shareholders
Section 1. Place of Meetings. All meetings of the shareholders shall be held at the
principal office of the Corporation or at such other place, within or without the State of Florida,
as may be designated by the Board of Directors and stated in the notice of meeting.
Section 2. Annual Meetings.
(a) The annual meeting of shareholders shall be held at such time and on such date as the
Board of Directors may determine, for the election of directors and for the transaction of such
other business as may properly be brought before the meeting in accordance with this Section 2 and
Section 9 of this Article II.
(b) At an annual meeting of the shareholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (i) brought before the meeting by the Corporation and specified in the notice of
meeting given by or at the direction of the Board of Directors, (ii) brought before the meeting by
or at the direction of the Board of Directors or (iii) otherwise properly brought before the
meeting by a shareholder who (A) was a shareholder of record of the Corporation (and, with respect
to any beneficial owner, if different, on whose behalf such business is proposed, only if such
beneficial owner was the beneficial owner of shares of the Corporation) both at the time of giving
the notice provided for in this Section 2 and at the time of the meeting, (B) is entitled to vote
at the meeting and (C) has complied with this Section 2 as to such business. Except for proposals
properly made in accordance with Rule 14a-8 under the Exchange Act and included in the notice of
meeting given by or at the direction of the Board of Directors, the foregoing clause (iii) shall be
the exclusive means for a shareholder to propose business to be brought before an annual meeting of
the shareholders. Shareholders seeking to nominate persons for election to the Board of Directors
must comply with Section 9 of this Article II, and this Section 2 shall not be applicable to
nominations except as expressly provided in Section 9 of this Article II.
(c) Without qualification, for business to be properly brought before an annual meeting by a
shareholder, the shareholder must (i) provide Timely Notice (as defined below) thereof in writing
and in proper form to the Secretary of the Corporation and (ii) provide any
updates or supplements to such notice at the times and in the forms required by this Section 2, and
any such proposed business must constitute a proper matter for shareholder action. To be timely, a
shareholder’s notice must be delivered to, or mailed and received at, the principal office of the
Corporation not less than one hundred (100) days nor more than one hundred twenty (120) days prior
to the one (1)-year anniversary of the preceding year’s annual meeting; provided, however, that if
the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days
after such anniversary date, notice by the shareholder to be timely must be so delivered, or mailed
and received, not later than the ninetieth (90th) day prior to such annual meeting or,
if later, the tenth (10th) day following the day on which public disclosure of the date
of such annual meeting was first made (such notice within such time periods, “Timely
Notice”). In no event shall any adjournment or postponement of an annual meeting or the
announcement thereof commence a new time period for the giving of Timely Notice as described above.
(d) To be in proper form for purposes of this Section 2, a shareholder’s notice to the
Secretary shall set forth:
(i) As to each Proposing Person (as defined below), (A) the name and address of such Proposing
Person (including, if applicable, the name and address that appear on the Corporation’s books and
records) and (B) the class or series and number of shares of the Corporation that are, directly or
indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the
Exchange Act) by such Proposing Person, except that such Proposing Person shall in all events be
deemed to beneficially own any shares of any class or series of the Corporation as to which such
Proposing Person has a right to acquire beneficial ownership at any time in the future (the
disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as
“Shareholder Information”);
(ii) As to each Proposing Person, (A) any derivative, swap or other transaction or series of
transactions engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of
which is to give such Proposing Person economic risk similar to ownership of shares of any class or
series of the Corporation, including due to the fact that the value of such derivative, swap or
other transactions are determined by reference to the price, value or volatility of any shares of
any class or series of the Corporation, or which derivative, swap or other transactions provide,
directly or indirectly, the opportunity to profit from any increase in the price or value of shares
of any class or series of the Corporation (“Synthetic Equity Interests”), which Synthetic
Equity Interests shall be disclosed without regard to whether (x) the derivative, swap or other
transactions convey any voting rights in such shares to such Proposing Person, (y) the derivative,
swap or other transactions are required to be, or are capable of being, settled through delivery of
such shares or (z) such Proposing Person may have entered into other transactions that hedge or
mitigate the economic effect of such derivative, swap or other transactions, (B) any proxy (other
than a revocable proxy or consent given in response to a solicitation made pursuant to, and in
accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on
Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such
Proposing Person has or shares a right to vote any shares of any class or series of the
Corporation, (C) any agreement, arrangement, understanding or relationship, including any
repurchase or similar so-called “stock borrowing” agreement or arrangement, engaged in, directly or
indirectly, by such Proposing Person, the purpose or effect
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of which is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares of
any class or series of the Corporation by, manage the risk of share price changes for, or increase
or decrease the voting power of, such Proposing Person with respect to the shares of any class or
series of the Corporation, or which provides, directly or indirectly, the opportunity to profit
from any decrease in the price or value of the shares of any class or series of the Corporation
(“Short Interests”), (D) any rights to dividends on the shares of any class or series of
the Corporation owned beneficially by such Proposing Person that are separated or separable from
the underlying shares of the Corporation, (E) any performance related fees (other than an asset
based fee) that such Proposing Person is entitled to based on any increase or decrease in the price
or value of shares of any class or series of the Corporation, or any Synthetic Equity Interests or
Short Interests, if any, and (F) any other information relating to such Proposing Person that would
be required to be disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies or consents by such Proposing Person in support of the business
proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the
disclosures to be made pursuant to the foregoing clauses (A) through (F) are referred to as
“Disclosable Interests”); provided, however, that Disclosable Interests shall not include
any such disclosures with respect to the ordinary course business activities of any broker, dealer,
commercial bank, trust company or other nominee who is a Proposing Person solely as a result of
being the shareholder directed to prepare and submit the notice required by these Bylaws on behalf
of a beneficial owner; and
(iii) As to each item of business that the shareholder proposes to bring before the annual
meeting, (A) a reasonably brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of each Proposing Person, (B) the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such business includes a
proposal to amend the Bylaws of the Corporation, the language of the proposed amendment) and (C) a
reasonably detailed description of all agreements, arrangements and understandings (x) between or
among any of the Proposing Persons or (y) between or among any Proposing Person and any other
person or entity (including their names) in connection with the proposal of such business by such
shareholder.
For purposes of this Section 2, the term “Proposing Person” shall mean (A) the
shareholder providing the notice of business proposed to be brought before an annual meeting, (B)
the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business
proposed to be brought before the annual meeting is made, (C) any affiliate or associate (each
within the meaning of Rule 12b-2 under the Exchange Act for the purposes of these Bylaws) of such
shareholder or beneficial owner and (D) any other person with whom such shareholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in Concert (as defined
below).
A person shall be deemed to be “Acting in Concert” with another person for purposes of
these Bylaws if such person knowingly acts (whether or not pursuant to an express agreement,
arrangement or understanding) in concert with, or towards a common goal relating to the management,
governance or control of the Corporation in parallel with, such other person where (A) each person
is conscious of the other person’s conduct or intent and this awareness is an
3
element in their decision-making processes and (B) at least one additional factor suggests that
such persons intend to act in concert or in parallel, which such additional factors may include,
without limitation, exchanging information (whether publicly or privately), attending meetings,
conducting discussions, or making or soliciting invitations to act in concert or in parallel;
provided, that a person shall not be deemed to be Acting in Concert with any other person solely as
a result of the solicitation or receipt of revocable proxies or consents from such other person in
response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange
Act by way of a proxy or consent solicitation statement filed on Schedule 14A. A person Acting in
Concert with another person shall be deemed to be Acting in Concert with any third party who is
also Acting in Concert with such other person.
(e) A shareholder providing notice of business proposed to be brought before an annual meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 2 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal office of the Corporation
not later than five (5) business days after the record date for the meeting (in the case of the
update and supplement required to be made as of the record date), and not later than eight (8)
business days prior to the date for the meeting or, if practicable, any adjournment or postponement
thereof (and, if not practicable, on the first practicable date prior to the date to which the
meeting has been adjourned or postponed) (in the case of the update and supplement required to be
made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
(f) Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted
at an annual meeting except in accordance with this Section 2. The Chairman of the meeting shall,
if the facts warrant, determine that the business was not properly brought before the meeting in
accordance with this Section 2, and if he or she should so determine, he or she shall so declare to
the meeting and any such business not properly brought before the meeting shall not be transacted.
(g) Notwithstanding the foregoing provisions of this Section 2, unless otherwise required by
law, if the shareholder (or a qualified representative of a shareholder) does not appear at the
annual meeting of shareholders of the Corporation to present the proposed business, such proposed
business will not be transacted, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 2, to be considered a qualified
representative of the shareholder, a person must be a duly authorized officer, manager or partner
of such shareholder or must be authorized by a writing executed by such shareholder or an
electronic transmission delivered by such shareholder to act for such shareholder as proxy at the
meeting of shareholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
(h) This Section 2 is expressly intended to apply to any business proposed to be brought
before an annual meeting of shareholders other than any proposal made pursuant to Rule
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14a-8 under the Exchange Act. In addition to the requirements of this Section 2 with respect to
any business proposed to be brought before an annual meeting, each Proposing Person shall comply
with all applicable requirements of the Exchange Act with respect to any such business. Nothing in
this Section 2 shall be deemed to affect the rights of shareholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(i) For purposes of these Bylaws, “public disclosure” shall mean disclosure in a press
release reported by a national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 3. Special Meetings.
(a) Special meetings of the shareholders for any purpose or purposes may be called at any time
by (i) the Chairman of the Board, (ii) the Board of Directors, pursuant to a resolution approved by
a majority of the full Board of Directors, or (iii) by the Secretary of the Corporation, following
his or her receipt of one or more written demands to call a special meeting of the shareholders in
accordance with, and subject to, this Section 3 from shareholders of record as of the record date
fixed in accordance with Section 3(d) who hold, in the aggregate, not less than thirty percent
(30%) of the Corporation’s issued and outstanding shares. The business to be conducted at the
special meeting shall be limited to the purpose or purposes stated in the notice of special meeting
delivered in accordance with Section 4 of this Article II. Except in accordance with this Section
3, shareholders shall not be permitted to propose business to be brought before a special meeting
of the shareholders. Shareholders who nominate persons for election to the Board of Directors at a
special meeting must also comply with the requirements set forth in Section 9 of this Article II.
(b) No shareholder may demand that the Secretary of the Corporation call a special meeting of
the shareholders pursuant to Section 3(a) unless a shareholder of record has first submitted a
request in writing that the Board of Directors fix a record date for the purpose of determining the
shareholders entitled to demand that the Secretary of the Corporation call such special meeting,
which request shall be in proper form and delivered to, or mailed and received by, the Secretary of
the Corporation at the principal office of the Corporation.
(c) To be in proper form for purposes of this Section 3, a request by a shareholder for the
Board of Directors to fix a record date shall set forth:
(i) As to each Requesting Person (as defined below), the Shareholder Information (as defined
in Section 2(d)(i) of this Article II, except that for purposes of this Section 3 the term
“Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears
in Section 2(d)(i));
(ii) As to each Requesting Person, any Disclosable Interests (as defined in Section 2(d)(ii)
of this Article II, except that for purposes of this Section 3 the term “Requesting Person” shall
be substituted for the term “Proposing Person” in all places it appears in Section
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2(d)(ii) and the disclosure in clause (F) of Section 2(d)(ii) shall be made with respect to the
business proposed to be conducted at the special meeting or the proposed election of directors at
the special meeting, as the case may be);
(iii) As to the purpose or purposes of the special meeting, (A) a reasonably brief description
of the purpose or purposes of the special meeting and the business proposed to be conducted at the
special meeting, the reasons for conducting such business at the special meeting and any material
interest in such business of each Requesting Person, and (B) a reasonably detailed description of
all agreements, arrangements and understandings (x) between or among any of the Requesting Persons
or (y) between or among any Requesting Person and any other person or entity (including their
names) in connection with the request for the special meeting or the business proposed to be
conducted at the special meeting; and
(iv) If directors are proposed to be elected at the special meeting, the Nominee Information
(as defined in Section 9(c)(iii) of this Article II) for each person whom a Requesting Person
expects to nominate for election as a director at the special meeting.
For purposes of this Section 3(c), the term “Requesting Person” shall mean (A) the shareholder
making the request to fix a record date for the purpose of determining the shareholders entitled to
demand that the Secretary call a special meeting, (B) the beneficial owner or beneficial owners, if
different, on whose behalf such request is made, (C) any affiliate or associate of such shareholder
or beneficial owner, and (D) any other person with whom such shareholder or beneficial owner (or
any of their respective affiliates or associates) is Acting in Concert (as defined in Section 2(d)
of this Article II).
(d) Within twenty (20) days after receipt of a request to fix a record date in proper form and
otherwise in compliance with this Section 3 from any shareholder of record, the Board of Directors
may adopt a resolution fixing a record date for the purpose of determining the shareholders
entitled to demand that the Secretary of the Corporation call a special meeting, which date shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors. If no resolution fixing a record date has been adopted by the Board of Directors within
the twenty (20) day period after the date on which such a request to fix a record date was
received, the record date in respect thereof shall be deemed to be the twentieth (20th)
day after the date on which such a request is received. Notwithstanding anything in this Section 3
to the contrary, no record date shall be fixed if the Board of Directors determines that the demand
or demands that would otherwise be submitted following such record date could not comply with the
requirements set forth in clauses (ii), (iv), (v) or (vi) of Section 3(f).
(e) Without qualification, a special meeting of the shareholders shall not be called pursuant
to Section 3(a) unless shareholders of record as of the record date fixed in accordance with
Section 3(d) who hold, in the aggregate, not less than thirty percent (30%) of the Corporation’s
issued and outstanding shares (the “Requisite Percentage”) timely provide one or more
demands to call such special meeting in writing and in proper form to the Secretary of the
Corporation at the principal office of the Corporation. Only shareholders of record on the record
date shall be entitled to demand that the Secretary of the Corporation call a special meeting of
the shareholders pursuant to Section 3(a). To be timely, a shareholder’s demand to call a special
6
meeting must be delivered to, or mailed and received at, the principal office of the Corporation
not later than the sixtieth (60th) day following the record date fixed in accordance
with Section 3(d). To be in proper form for purposes of this Section 3, a demand to call a special
meeting shall set forth (i) the business proposed to be conducted at the special meeting or the
proposed election of directors at the special meeting, as the case may be, (ii) the text of the
proposal or business (including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the Bylaws of the Corporation, the language
of the proposed amendment), if applicable, and (iii) with respect to any shareholder or
shareholders submitting a demand to call a special meeting (except for any shareholder that has
provided such demand in response to a solicitation made pursuant to, and in accordance with,
Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (as so amended and inclusive of such rules and regulations, the “Exchange Act”)
by way of a solicitation statement filed on Schedule 14A (a “Solicited Shareholder”)) the
information required to be provided pursuant to this Section 3 of a Requesting Person. A
shareholder may revoke a demand to call a special meeting by written revocation delivered to the
Secretary at any time prior to the special meeting. If any such revocation(s) are received by the
Secretary after the Secretary’s receipt of written demands from the holders of the Requisite
Percentage of shareholders, and as a result of such revocation(s), there no longer are unrevoked
demands from the Requisite Percentage of shareholders to call a special meeting, the Board of
Directors shall have the discretion to determine whether or not to proceed with the special
meeting.
(f) The Secretary shall not accept, and shall consider ineffective, a written demand from a
shareholder to call a special meeting (i) that does not comply with this Section 3, (ii) that
relates to an item of business to be transacted at such meeting that is not a proper subject for
shareholder action under applicable law, (iii) that includes an item of business to be transacted
at such meeting that did not appear on the written request that resulted in the determination of
the record date (the “Current Record Date”) to determine the shareholders entitled to
submit such written demand, (iv) that relates to an item of business (other than the election of
directors) that is identical or substantially similar to an item of business (a “Similar
Item”) for which a record date (other than the Current Record Date) was previously fixed and
such demand is delivered between the time beginning on the sixty-first (61st) day after
such previous record date and ending on the one (1)-year anniversary of such previous record date,
(v) if a Similar Item will be submitted for shareholder approval at any shareholder meeting to be
held on or before the ninetieth (90th) day after the Secretary receives such demand, or
(vi) if a Similar Item has been presented at the most recent annual meeting or at any special
meeting held within one (1) year prior to receipt by the Secretary of such demand to call a special
meeting.
(g) After receipt of demands in proper form and in accordance with this Section 3 from a
shareholder or shareholders holding the Requisite Percentage, the Board of Directors shall duly
call, and determine the place, date and time of, a special meeting of shareholders for the purpose
or purposes and to conduct the business specified in the demands received by the Corporation.
Notwithstanding anything in these Bylaws to the contrary, the Board of Directors may submit its own
proposal or proposals for consideration at such a special meeting. The record date for such a
special meeting shall be fixed in accordance with Section 6 of this Article II. The Board of
Directors shall provide written notice of such special meeting to the shareholders in accordance
with Section 4 of this Article II.
7
(h) In connection with a special meeting called in accordance with this Section 3, the
shareholder or shareholders (except for any Solicited Shareholder) who requested that the Board of
Directors fix a record date in accordance with this Section 3 or who delivered a demand to call a
special meeting to the Secretary shall further update and supplement the information previously
provided to the Corporation in connection with such request or demand, if necessary, so that the
information provided or required to be provided in such request or demand pursuant to this Section
3 shall be true and correct as of the record date for the special meeting and as of the date that
is ten (10) business days prior to the special meeting or any adjournment or postponement thereof,
and such update and supplement shall be delivered to, or mailed and received by, the Secretary at
the principal office of the Corporation not later than five (5) business days after the record date
for the special meeting (in the case of the update and supplement required to be made as of the
record date), and not later than eight (8) business days prior to the date for the special meeting
or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first
practicable date prior to the date to which the special meeting has been adjourned or postponed)
(in the case of the update and supplement required to be made as of ten (10) business days prior to
the special meeting or any adjournment or postponement thereof).
(i) Notwithstanding anything in these Bylaws to the contrary, the Secretary shall not be
required to call a special meeting pursuant to this Section 3 except in accordance with this
Section 3. If the Board of Directors shall determine that any request to fix a record date or
demand to call and hold a special meeting was not properly made in accordance with this Section 3,
or shall determine that the shareholder or shareholders requesting that the Board of Directors fix
such record date or submitting a demand to call the special meeting have not otherwise complied
with this Section 3, then the Board of Directors shall not be required to fix a record date or to
call and hold the special meeting. In addition to the requirements of this Section 3, each
Requesting Person shall comply with all requirements of applicable law, including all requirements
of the Exchange Act, with respect to any request to fix a record date or demand to call a special
meeting.
(j) Notwithstanding the foregoing provisions of this Section 3, unless otherwise required by
law, if the shareholder or shareholders who requested that the Board of Directors fix a record date
in accordance with this Section 3 or who delivered a demand to call a special meeting to the
Secretary (or a qualified representative of such shareholder or shareholders) does not appear at a
duly called special meeting of shareholders to present the business proposed to be conducted at the
special meeting or the proposed nomination of a director to be elected at the special meeting, as
the case may be, such proposed business will not be transacted and such proposed nomination will be
disregarded, as the case may be, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 3, to be considered a qualified
representative of the shareholder, a person must be a duly authorized officer, manager or partner
of such shareholder or must be authorized by a writing executed by such shareholder or an
electronic transmission delivered by such shareholder to act for such shareholder as proxy at the
meeting of shareholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
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Section 4. Notice of Meeting.
(a) Written notice stating the date, time and place of any meeting of shareholders and, in the
case of a special meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) days nor more than sixty (60) days before the date of the meeting
by or at the direction of the Board of Directors, the Chairman of the Board of Directors, or the
officer duly calling the meeting, to each shareholder of record entitled to vote at such meeting
and to such other persons as required by the Florida Business Corporation Act (the “Act”).
Unless the Act requires otherwise, notice of an annual meeting need not include a description of
the purpose or purposes for which the meeting is called. Notice may be communicated in person, by
electronic means, by mail or by any other method permitted under the Act. If mailed, notice of a
meeting of shareholders shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his or her address as it appears on the stock record books of the
Corporation, with postage thereon prepaid. If sent by electronic means, notice of a meeting of
shareholders shall be deemed to be delivered when electronically transmitted to the shareholder in
a manner authorized by the shareholder.
(b) If an annual or special meeting of shareholders is adjourned to a different date, time or
place, the Corporation shall not be required to give notice of the new date, time or place if the
new date, time or place is announced at the meeting before adjournment; provided, however, that if
a new record date for an adjourned meeting is or must be fixed, the Corporation shall give notice
of the adjourned meeting to persons who are shareholders as of the new record date who are entitled
to notice of the meeting.
(c) Notwithstanding the other provisions of this Section 4, no notice of a meeting of
shareholders need be given to a shareholder if: (i) an annual report and proxy statement for two
consecutive annual meetings of shareholders; or (ii) all, and at least two, checks in payment of
dividends or interest on securities during a twelve-month period have been sent by first-class,
United States mail, addressed to the shareholder at his or her address as it appears on the stock
record books of the corporation, and returned undeliverable. The obligation of the Corporation to
give notice of a shareholders’ meeting to any such shareholder shall be reinstated once the
Corporation has received a new address for such shareholder for entry on its stock record books.
Section 5. Waiver of Notice. A shareholder may waive notice of any meeting before or
after the date and time stated in the notice. The waiver must be in writing, signed by the
shareholder and delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. A shareholder’s attendance, in person or by proxy, at a meeting (a) waives
objection to lack of notice or defective notice of the meeting, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business at the meeting or
(b) waives objection to consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice, unless the shareholder objects to considering
the matter when it is presented.
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Section 6. Record Date.
(a) The Board of Directors may fix a future date as the record date for determining the
shareholders entitled to notice of or to vote at a shareholders’ meeting, to demand a special
meeting of shareholders, to take action by written consent without a shareholders’ meeting, or to
take any other action. Such record date may not be more than seventy (70) days before the meeting
or action requiring a determination of shareholders.
(b) Unless specifically addressed elsewhere in these Bylaws in which case such specific
provisions shall govern, if no record date is fixed by the Board of Directors for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders, the record date
shall be the close of business on the day before the first notice of the meeting is delivered to
shareholders. A determination of shareholders entitled to notice of or to vote at a shareholders’
meeting is effective for any adjournment of the meeting unless the Board of Directors fixes a new
record date for the adjourned meeting, which it must do if the meeting is adjourned to a date more
than one hundred twenty (120) days after the date fixed for the original meeting.
(c) The Board of Directors may fix a date as the record date for determining shareholders
entitled to a distribution or share dividend. If no record date is fixed by the Board of Directors
for such determination, it is the date the Board of Directors authorizes the distribution or share
dividend.
Section 7. Quorum.
(a) The holders of a majority of the issued and outstanding shares of capital stock of the
Corporation entitled to vote at the meeting, represented in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of the shareholders, except as may be
otherwise provided by law or the Articles of Incorporation. The holders of a majority of shares
represented, and who would be entitled to vote at a meeting if a quorum were present, where a
quorum is not present, may adjourn such meeting from time to time.
(b) Once a share is represented for any purpose at the meeting, it is deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a
new record date is set for the adjourned meeting.
Section 8. Proxies. A shareholder entitled to vote at any meeting of the shareholders
(or another person entitled to vote on behalf of the shareholder pursuant to Section 607.0721 of
the Act or an attorney-in-fact for the shareholder) may vote the shareholder’s shares in person or
by proxy. A shareholder (or another person entitled to vote on behalf of the shareholder pursuant
to Section 607.0721 of the Act or an attorney-in-fact for the shareholder) may appoint a proxy to
vote or otherwise act for the shareholder by signing an appointment form or by electronic
transmission. Any type of electronic transmission appearing to have been, or containing or
accompanied by such information or obtained under such procedures to reasonably ensure that the
electronic transmission was, transmitted by such person is a sufficient appointment, subject to any
verification requested by the Corporation under Section 607.0724 of the Act. Without
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limiting the manner in which such an appointment may be made, an appointment may be made by (a)
signing an appointment form, with the signature affixed, by any reasonable means including, without
limitation, facsimile or electronic signature or (b) transmitting or authorizing the transmission
of an electronic transmission to the person who will be appointed as the proxy or to a proxy
solicitation firm, proxy support service organization, registrar or agent authorized by the person
who will be designated as the proxy to receive such transmission, provided that any electronic
transmission must set forth or be submitted with information from which it can be determined that
the electronic transmission was authorized by the shareholder (or another person entitled to vote
on behalf of a shareholder pursuant to Section 607.0721 of the Act or an attorney-in-fact for the
shareholder). An appointment of a proxy is valid for eleven (11) months from the date of receipt
by the Secretary or the officer or agent authorized to tabulate votes, unless a longer period is
expressly provided in the appointment.
Section 9. Advance Notice of Nominations for Election of Directors at a Meeting.
(a) Nominations of any person for election to the Board of Directors at an annual meeting or
at a special meeting of shareholders (but only if the election of directors is a matter specified
in the notice of meeting given by or at the direction of the person calling such special meeting in
accordance with Article II, Section 3(a)) may be made at such meeting only if (i) specified in the
notice of meeting given by or at the direction of the Board of Directors, (ii) brought before the
meeting by or at the direction of the Board of Directors, including by any committee or persons
appointed by the Board of Directors, or (iii) by a shareholder who (A) was a shareholder of record
(and, with respect to any beneficial owner, if different, on whose behalf such nomination is
proposed to be made, only if such beneficial owner was the beneficial owner of shares of the
Corporation) both at the time of giving the notice provided for in this Section 9 and at the time
of the meeting, (B) is entitled to vote at the meeting and (C) has complied with this Section 9 as
to such nomination. This Section 9 shall be the exclusive means for a shareholder to make any
nomination of a person or persons for election to the Board of Directors at an annual meeting or
special meeting.
(b) Without qualification, for a shareholder to make any nomination of a person or persons for
election to the Board of Directors at an annual meeting, the shareholder must (i) provide Timely
Notice (as defined in Section 2(c) of this Article II) thereof in writing and in proper form to the
Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the
times and in the forms required by this Section 9. Without qualification, if the Board of
Directors has first determined that directors are to be elected at such special meeting (or if a
special meeting is properly called pursuant to Section 3 of this Article II and relates to the
election or appointment of directors), then for a shareholder to make any nomination of a person or
persons for election to the Board of Directors at a special meeting, the shareholder must (A)
provide timely notice thereof in writing and in proper form to the Secretary of the Corporation at
the principal office of the Corporation and (B) provide any updates or supplements to such notice
at the times and in the forms required by this Section 9. To be timely, a shareholder’s notice for
nominations to be made at a special meeting must be delivered to, or mailed and received at, the
principal office of the Corporation not earlier than the one hundred twentieth (120th)
day prior to such special meeting and not later than the ninetieth (90th) day prior to
such special meeting or, if later, the tenth (10th) day following the day on which
public disclosure (as defined in Section 2(i)
11
of this Article II) of the date of such special meeting was first made. In no event shall any
adjournment or postponement of an annual meeting or special meeting or the announcement thereof
commence a new time period for the giving of a shareholder’s notice as described above.
(c) To be in proper form for purposes of this Section 9, a shareholder’s notice to the
Secretary shall set forth:
(i) As to each Nominating Person (as defined below), the Shareholder Information (as defined
in Section 2(d)(i) of this Article II) except that for purposes of this Section 9, the term
“Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears
in Section 2(d)(i);
(ii) As to each Nominating Person, any Disclosable Interests (as defined in Section 2(d)(ii)
of this Article II, except that for purposes of this Section 9 the term “Nominating Person” shall
be substituted for the term “Proposing Person” in all places it appears in Section 2(d)(ii) and the
disclosure in clause (F) of Section 2(d)(ii) shall be made with respect to the election of
directors at the meeting);
(iii) As to each person whom a Nominating Person proposes to nominate for election as a
director, (A) all information with respect to such proposed nominee that would be required to be
set forth in a shareholder’s notice pursuant to this Section 9 if such proposed nominee were a
Nominating Person, (B) all information relating to such proposed nominee that is required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors in a contested election pursuant to Section
14(a) under the Exchange Act (including such proposed nominee’s written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), (C) a description of all
direct and indirect compensation and other material monetary agreements, arrangements and
understandings during the past three (3) years, and any other material relationships, between or
among any Nominating Person, on the one hand, and each proposed nominee, his or her respective
affiliates and associates and any other persons with whom such proposed nominee (or any of his or
her respective affiliates and associates) is Acting in Concert (as defined in Section 2(d) of this
Article II), on the other hand, including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were
the “registrant” for purposes of such rule and the proposed nominee were a director or executive
officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (A)
through (C) are referred to as “Nominee Information”), and (D) a completed and signed
questionnaire, representation and agreement as provided in Section 9(h); and
(iv) The Corporation may require any proposed nominee to furnish such other information (A) as
may reasonably be required by the Corporation to determine the eligibility of such proposed nominee
to serve as an independent director of the Corporation in accordance with the Corporation’s
corporate governance principles or (B) that could be material to a reasonable shareholder’s
understanding of the independence or lack of independence of such proposed nominee.
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(d) For purposes of this Section 9, the term “Nominating Person” shall mean (i) the
shareholder providing the notice of the nomination proposed to be made at the meeting, (ii) the
beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination
proposed to be made at the meeting is made, (iii) any affiliate or associate of such shareholder or
beneficial owner and (iv) any other person with whom such shareholder or such beneficial owner (or
any of their respective affiliates or associates) is Acting in Concert.
(e) A shareholder providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 9 shall be true and correct as of
the record date for the meeting and as of the date that is ten (10) business days prior to the
meeting or any adjournment or postponement thereof, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal office of the Corporation
not later than five (5) business days after the record date for the meeting (in the case of the
update and supplement required to be made as of the record date), and not later than eight (8)
business days prior to the date for the meeting or, if practicable, any adjournment or postponement
thereof (and, if not practicable, on the first practicable date prior to the date to which the
meeting has been adjourned or postponed) (in the case of the update and supplement required to be
made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
(f) Notwithstanding anything in these Bylaws to the contrary, no person shall be eligible for
election as a director of the Corporation unless nominated in accordance with this Section 9. The
Chairman of the meeting shall, if the facts warrant, determine that a nomination was not properly
made in accordance with this Section 9, and if he or she should so determine, he or she shall so
declare such determination to the meeting and the defective nomination shall be disregarded.
(g) Notwithstanding the foregoing provisions of this Section 9, unless otherwise required by
law, if the shareholder (or a qualified representative of a shareholder) does not appear at the
annual or special meeting of shareholders of the Corporation to present a nomination, such
nomination will be disregarded, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. For purposes of this Section 9, to be considered a qualified
representative of the shareholder, a person must be a duly authorized officer, manager or partner
of such shareholder or must be authorized by a writing executed by such shareholder or an
electronic transmission delivered by such shareholder to act for such shareholder as proxy at the
meeting of shareholders and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting of shareholders.
(h) To be eligible to be a nominee for election as a director of the Corporation, the proposed
nominee must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 9) to the Secretary at the principal office of the Corporation a written questionnaire
with respect to the background and qualification of such proposed nominee (which questionnaire
shall be provided by the Secretary upon written request) and a written representation and agreement
(in form provided by the Secretary upon written request) that such
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proposed nominee (i) is not and will not become a party to (A) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any person or entity as to
how such proposed nominee, if elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or
(B) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to
comply, if elected as a director of the Corporation, with such proposed nominee’s fiduciary duties
under applicable law, (ii) is not, and will not become a party to, any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with service or action as a
director that has not been disclosed to the Corporation and (iii) in such proposed nominee’s
individual capacity and on behalf of the shareholder (or the beneficial owner, if different) on
whose behalf the nomination is made, would be in compliance, if elected as a director of the
Corporation, and will comply with applicable publicly disclosed corporate governance, conflict of
interest, confidentiality and stock ownership and trading policies and guidelines of the
Corporation.
(i) In addition to the requirements of this Section 9 with respect to any nomination proposed
to be made at a meeting, each Nominating Person shall comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to any such nominations.
Section 10. Conduct of Meetings.
(a) The Board of Directors of the Corporation may adopt by resolution such rules, regulations
and procedures for the conduct of meetings of shareholders as it shall deem appropriate. Except to
the extent inconsistent with applicable law and such rules and regulations adopted by the Board of
Directors, the Chairman of each meeting of shareholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts, including causing an
adjournment of such meeting, as, in the judgment of such Chairman, are appropriate. 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, including fixing the time for opening and closing the polls
for voting on each matter; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) 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 shall permit; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants.
(b) If authorized by resolution of the Board of Directors of the Corporation, and subject to
such guidelines and procedures as the Board of Directors may adopt, shareholders and proxy holders
not physically present at an annual or special meeting of shareholders may, by means of remote
communication in compliance with the Act: (i) participate in an annual or special meeting of
shareholders; and (ii) be deemed present in person and vote at an annual or special meeting of
shareholders, whether such meeting is to be held at a designated place or solely by means of remote
communication.
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Section 11. Organization of Meetings. Meetings of shareholders shall be presided over
by the Chairman of the Board of Directors, or in his or her absence by the Chief Executive Officer,
or in the absence of the foregoing persons by a Chairman designated by the Board of Directors, or,
in the absence of any such designation, by a Chairman chosen at the meeting. The Secretary, or in
the absence of the Secretary, an Assistant Secretary, shall act as the secretary of the meeting,
but in the absence of the Secretary or Assistant Secretary, the Chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 12. Voting of Shares.
(a) Except as provided in the Articles of Incorporation or the Act, each outstanding share,
regardless of class, is entitled to one vote on each matter voted on at a meeting of shareholders.
(b) If a quorum exists, except in the case of the election of directors, action on a matter
shall be approved if the votes cast favoring the action exceed the votes cast opposing the action,
unless the Act or the Articles of Incorporation require a greater number of affirmative votes.
(c) Except as may be otherwise required by the Articles of Incorporation or the Act, each
director shall be elected by the vote of the majority of the votes cast (meaning the number of
shares voted “for” a nominee must exceed the number of shares voted “against” such nominee) at any
meeting for the election of directors at which a quorum is present, provided that the directors
shall be elected by a plurality of the votes cast (instead of by votes cast for or against a
nominee) at any meeting at which a quorum is present for which (i) the Secretary of the Corporation
receives a notice pursuant to these Bylaws or otherwise that a shareholder intends to nominate a
director or directors and (ii) such proposed nomination has not been withdrawn by such shareholder
on or prior to the tenth day preceding the date the Company first mails its notice of meeting for
such meeting to the shareholders. Each shareholder who is entitled to vote at an election of
directors has the right to vote the number of shares owned by him or her for as many persons as
there are directors to be elected. Shareholders do not have a right to cumulate their votes for
directors.
Section 13. Voting Lists. The Secretary shall prepare, at least ten (10) days before
each meeting of shareholders, an alphabetical list of the shareholders entitled to notice of the
meeting, which shall show the address of and the number of shares held by each shareholder. The
list shall be open for examination of any shareholder, or his or her attorney or agent, at the
Corporation’s principal office, at a place identified in the meeting notice in the city where the
meeting will be held or at the office of the Corporation’s transfer agent or registrar ten (10)
days prior to such meeting and shall be kept available for inspection, at the meeting, by any
shareholder at any time during the meeting.
15
Section 14. Shareholder Action by Written Consent Without a Meeting.
(a) Any action required or permitted to be taken at an annual or special meeting of
shareholders may be taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, (i) shall be signed by holders of record
on the record date (established as provided below) of outstanding shares of the Corporation 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 (ii) shall be
delivered to the Corporation at its principal office, at its principal place of business or to an
officer or agent of the Corporation having custody of the minute books in which proceedings of
meetings of shareholders are recorded. Delivery shall be made by hand or by certified or
registered mail, return receipt requested. Every written consent shall bear the date of the
signature of each shareholder who signs the consent, and no written consent shall be effective to
take corporate action unless, within sixty (60) days of the earliest dated valid consent delivered
in the manner described in this Section 14, written consents signed by a sufficient number of
holders to take such action are delivered to the Corporation in the manner described in this
Section 14. Only shareholders of record on the record date shall be entitled to consent to
corporate action in writing without a meeting. In no event shall shareholder action by written
consent without a meeting be effective to take corporate action, unless within seventy (70) days of
the record date fixed pursuant to Section 14(b) of this Article II, written consents signed by a
sufficient number of holders to take such action are delivered to the Corporation in the manner
described in this Section 14.
(b) Without qualification, any shareholder of record seeking to have the shareholders
authorize or take any action by written consent shall first request in writing that the Board of
Directors fix a record date for the purpose of determining the shareholders entitled to take such
action, which request shall be in proper form and delivered to, or mailed and received by, the
Secretary of the Corporation at the principal office of the Corporation. Within twenty (20) days
after receipt of a request in proper form and otherwise in compliance with this Section 14(b) from
any such shareholder, the Board of Directors may adopt a resolution fixing a record date for the
purpose of determining the shareholders entitled to take such action, which date shall not precede
the date upon which the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than twenty (20) days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. If no resolution fixing a record date has
been adopted by the Board of Directors within such twenty (20) day period after the date on which
such a request is received, (i) the record date for determining shareholders entitled to consent to
such action, when no prior action of the Board is required by applicable law, shall be the first
date after the expiration of such twenty (20) day time period, on which a valid signed written
consent setting forth the action taken or proposed to be taken is delivered to the Corporation in
the manner described in this Section 14, and (ii) the record date for determining shareholders
entitled to consent to such action, when prior action by the Board of Directors is required by
applicable law, shall be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action.
(c) To be in proper form for purposes of this Section 14, a request by a shareholder for the
Board of Directors to fix a record date shall set forth:
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(i) As to each Soliciting Person (as defined below), the Shareholder Information (as defined
in Section 2(d)(i) of this Article II, except that for purposes of this Section 14 the term
“Soliciting Person” shall be substituted for the term “Proposing Person” in all places it appears
in Section 2(d)(i));
(ii) As to each Soliciting Person, any Disclosable Interests (as defined in Section 2(d)(ii)
of this Article II, except that for purposes of this Section 14 the term “Soliciting Person” shall
be substituted for the term “Proposing Person” in all places it appears in Section 2(d)(ii) and the
disclosure in clause (F) of Section 2(d)(ii) shall be made with respect to the action or actions
proposed to be taken by written consent);
(iii) As to the action or actions proposed to be taken by written consent, (A) a reasonably
brief description of the action or actions, the reasons for taking such action or actions and any
material interest in such action or actions of each Soliciting Person, (B) the text of the
resolutions or consent proposed to be acted upon by written consent of the shareholders, and (C) a
reasonably detailed description of all agreements, arrangements and understandings (x) between or
among any of the Soliciting Persons and (y) between or among any Soliciting Person and any other
person or entity (including their names) in connection with the request or such action or actions;
and
(iv) If directors are proposed to be elected by written consent, the Nominee Information for
each person whom a Requesting Person proposes to elect as a director by written consent and a
completed and signed questionnaire, representation and agreement as provided in Section 9(h).
For purposes of this Section 14, the term “Soliciting Person” shall mean (A) the shareholder
making a request for the Board of Directors to fix a record date and proposing the action or
actions to be taken by written consent of the shareholders, (B) the beneficial owner or beneficial
owners, if different, on whose behalf such request is made, (C) any affiliate or associate of such
shareholder or beneficial owner, and (D) any other person with whom such shareholder or beneficial
owner (or any of their respective affiliates or associates) is Acting in Concert) (as defined in
Section 2(d) of this Article II).
(d) In connection with an action or actions proposed to be taken by written consent in
accordance with this Section 14, the shareholder or shareholders seeking such action or actions
shall further update and supplement the information previously provided to the Corporation in
connection therewith, if necessary, so that the information provided or required to be provided
pursuant to this Section 14 shall be true and correct as of the record date for determining the
shareholders eligible to take such action and as of the date that is five (5) business days prior
to the date the consent solicitation is commenced, and such update and supplement shall be
delivered to, or mailed and received by, the Secretary at the principal office of the Corporation
not later than five (5) business days after the record date for determining the shareholders
eligible to take such action (in the case of the update and supplement required to be made as of
the record date), and not later than three (3) business days prior to the date that the consent
17
solicitation is commenced (in the case of the update and supplement required to be made as of five
(5) business days prior to the commencement of the consent solicitation).
(e) In the event of the delivery, in the manner provided by this Section 14 and applicable
law, to the Corporation of the requisite written consent or consents to take corporate action
and/or any related update or supplement required to be made, the Corporation shall engage
independent inspectors of elections for the purpose of promptly performing a ministerial review of
the validity of the consents and updates or supplements. For the purpose of permitting the
inspectors to perform such review, no action by written consent without a meeting shall be
authorized and effective until such date as the independent inspectors certify to the Corporation
that the consents delivered to the Corporation in accordance with this Section 14 represent at
least the minimum number of votes that would be necessary to take the corporate action. The action
by written consent and without a meeting will be deemed authorized and will take effect as of the
date and time of the certification of the written consents (the “Date of Authorization of
Shareholder Action by Written Consent”) and will not relate back to the date the written
consents were delivered to the Corporation. In the event that the action by written consent and
without a meeting elects a director or directors to the Board of Directors, such newly elected
director or directors shall take office and have the authority of a director conferred upon them as
of the date and time of certification, and not the date of delivery to the Corporation, of the
written consents. In the event that the action by written consent and without a meeting replaces a
director or directors on the Board of Directors, the authority of such replaced director or
directors shall continue until the date and time of the certification of the written consents.
Nothing contained in this Section 14 shall in any way be construed to suggest or imply that the
Board of Directors or any shareholder shall not be entitled to contest the validity of any consent
or update or supplement thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief
in such litigation).
(f) Within ten (10) days of the Date of Authorization of Shareholder Action by Written Consent
in accordance with this Section 14, notice in accordance with Section 607.0704(3) of the Act must
be given to those shareholders who have not consented in writing or who are not entitled to vote on
the action.
(g) Notwithstanding anything in these Bylaws to the contrary, no action may be taken by the
shareholders by written consent except in accordance with this Section 14. If the Board of
Directors shall determine that any request to fix a record date or to take shareholder action by
written consent was not properly made in accordance with this Section 14, or the shareholder or
shareholders seeking to take such action do not otherwise comply with this Section 14, then the
Board of Directors shall not be required to fix a record date and any such purported action by
written consent shall be null and void to the fullest extent permitted by applicable law. In
addition to the requirements of this Section 14 with respect to shareholders seeking to take an
action by written consent, each Soliciting Person shall comply with all requirements of applicable
law, including all requirements of the Exchange Act, with respect to such action.
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Article III. Directors
Section 1. Function. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed under the direction
of, the Board of Directors.
Section 2. Qualifications. Directors must be natural persons who are eighteen (18)
years of age or older but need not be residents of the State of Florida or shareholders of the
Corporation.
Section 3. Compensation of Directors. The Board of Directors shall have the authority
to fix the compensation of directors. In addition, each director shall be entitled to be
reimbursed by the Corporation for all expenses incurred in attending meetings of the Board of
Directors or of any committee of which such person is a member. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other capacity and receiving
compensation for such services from the Corporation; provided that any person who is receiving a
stated compensation as an officer of the Corporation for services as such officer shall not receive
any additional compensation for services as a director during such period. The annual compensation
of directors shall be paid at such times and in such installments as the Board of Directors may
determine.
Section 4. Duties of Directors.
(a) A director, in the performance of his or her duties, shall be entitled to rely on
information, opinions, reports or statements, including financial statements and other financial
data, if prepared or presented by: (a) one or more officers or employees of the Corporation whom
the director reasonably believes to be reliable and competent in the matters presented; (b) legal
counsel, public accountants or other persons, as to matters the director reasonably believes are
within the person’s professional or expert competence; or (c) a committee of the Board of Directors
of which the director is not a member, if the director reasonably believes the committee merits
confidence.
(b) In discharging his or her duties, a director may consider such factors as the director
deems relevant, including the long-term prospects and interests of the Corporation and its
shareholders, and the social, economic, legal or other effects of any action on the employees,
suppliers, customers of the Corporation or its subsidiaries, the communities and society in which
the Corporation or its subsidiaries operate, and the economy of the state and the nation.
Section 5. Number and Term. The number of directors that constitute the Board of
Directors shall be determined by the Board of Directors from time to time; provided that in no
event shall the Board of Directors consist of less than five (5) directors. The term of each
director shall expire at the next annual meeting of shareholders following his or her election or
until his or her successor is elected and qualified.
Section 6. Removal. The shareholders may remove one or more directors with or without
cause. A director may be removed by the shareholders at a meeting of shareholders, provided
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that the notice of the meeting states that the purpose, or one of the purposes, of the meeting is
removal of the director. If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove such director.
Section 7. Resignation. A director may resign at any time by delivering written
notice to the Board of Directors, the Chairman of the Board of Directors or the Corporation. A
resignation is effective when the notice is delivered unless the notice specifies a later effective
date.
Section 8. Vacancies. Any vacancy occurring in the Board of Directors, including any
vacancy created by reason of an increase in the number of directors, may be filled by the
affirmative vote of a majority of the remaining directors, though less than a quorum of the Board
of Directors, or by the shareholders. A director elected to fill a vacancy shall hold office for
the unexpired term and until his or her successor shall have been elected and qualified or, for
newly created directorships, until the next annual meeting of shareholders and until his or her
successor shall have been elected and qualified. A vacancy that will occur at a specific later
date, because of a resignation effective at a later date or otherwise, may be filled before the
vacancy occurs, but the new director may not take office until the vacancy occurs.
Section 9. Quorum and Voting. Unless the Articles of Incorporation or these Bylaws
provide otherwise, a quorum of the Board of Directors consists of a majority of the number of
directors prescribed by these Bylaws. If a quorum is present when a vote is taken, the affirmative
vote of a majority of directors present is the act of the Board of Directors unless the Articles of
Incorporation or these Bylaws require the vote of a greater number of directors. A director who is
present at a meeting of the Board of Directors or a committee of the Board of Directors when
corporate action is taken is deemed to have assented to the action taken unless: (a) he or she
objects at the beginning of the meeting (or promptly upon his or her arrival) to holding it or
transacting specified business at the meeting; or (b) he or she votes against or abstains from the
action taken.
Section 10. Director Conflicts of Interest.
(a) No contract or other transaction between the Corporation and one or more of its directors
or any other corporation, firm, association or entity in which one or more of the directors are
directors or officers or are financially interested, shall be either void or voidable because of
such relationship or interest, because such director or directors are present at the meeting of the
Board of Directors or a committee thereof which authorizes, approves or ratifies such contract or
transaction or because his or her or their votes are counted for such purpose, if: (a) the fact of
such relationship or interest is disclosed or known to the Board of Directors or committee that
authorizes, approves or ratifies the contract or transaction by a vote or consent sufficient for
the purpose without counting the votes or consents of such interested directors; (b) the fact of
such relationship or interest is disclosed or known to the shareholders entitled to vote and they
authorize, approve or ratify such contract or transaction; or (c) the contract or transaction is
fair and reasonable as to the Corporation at the time it is authorized by the Board of Directors, a
committee or the shareholders.
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(b) A conflict of interest transaction is authorized, approved or ratified if it receives the
affirmative vote of a majority of the directors on the Board of Directors, or on the committee, who
have no relationship or interest in the transaction described above; provided, however, a
transaction may not be authorized, approved or ratified under this Section 10 by a single director.
If a majority of the directors that have no such relationship or interest in the proposed
transaction vote to authorize, approve or ratify the proposed transaction, a quorum is present for
the purpose of taking action under this Section 10. The presence of, or a vote cast by, a director
with such relationship or interest in the transaction does not affect the validity of any action
taken under this Section 10 if the transaction is otherwise authorized, approved or ratified as
provided in this Section 10.
Section 11. Committees.
(a) The Board of Directors, by resolution adopted by a majority of the full Board of
Directors, may designate from among its members an executive committee and one or more other
committees (which may include, by way of example and not as a limitation, a compensation committee,
an audit and finance committee and a governance and nominating committee) each of which, to the
extent provided in such resolution and in any charter adopted by the Board of Directors for any
committee, shall have and may exercise all the authority of the Board of Directors, except that no
such committee shall have the authority to: (a) approve or recommend to shareholders actions or
proposals required by the Act to be approved by shareholders; (b) fill vacancies on the Board of
Directors or any committee thereof; (c) adopt, amend or repeal these Bylaws; (d) authorize or
approve the reacquisition of shares unless pursuant to a general formula or method specified by the
Board of Directors; or (e) authorize or approve the issuance or sale or contract for the sale of
shares, or determine the designation and relative rights, preferences, and limitations of a voting
group except that the Board of Directors may authorize a committee (or a senior executive officer
of the Corporation) to do so within limits specifically prescribed by the Board of Directors.
(b) Each committee must have two or more members, who shall serve at the pleasure of the Board
of Directors. The Board of Directors, by resolution adopted in accordance with this Section 11,
may designate one or more directors as alternate members of any such committee, who may act in the
place and stead of any absent member or members at any meeting of such committee. The Board of
Directors may adopt a charter for any such committee specifying requirements with respect to
committee chairs and membership, responsibilities of the committee, the conduct of meetings and
business of the committee and such other matters as the Board of Directors may designate. In the
absence of a committee charter or a provision of a committee charter governing such matters, the
provisions of these Bylaws which govern meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors shall apply to any such committee and its members.
Section 12. Place of Meetings. Regular and special meetings by the Board of Directors
may be held within or without the State of Florida.
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Section 13. Time, Notice and Call of Meetings.
(a) Regular meetings of the Board of Directors may be held without notice of the date, time,
place or purpose of the meeting. A regular meeting of the Board of Directors shall be held
immediately following the annual meeting of the shareholders.
(b) Notice of the date, time and place of special meetings of the Board of Directors shall be
given to each director by either personal delivery, first class mail, expedited delivery service,
telegram, cablegram, electronic means or any other means permitted under the Act at least
twenty-four (24) hours before the meeting; provided, however, emergency meetings may be convened on
such shorter notice as the Chief Executive Officer, the Chairman of the Board of Directors, or the
directors calling the meeting deem necessary and appropriate under the circumstances. The notice
need not describe the purpose of the special meeting.
(c) Meetings of the Board of Directors may be called by the Chief Executive Officer, by the
Chairman of the Board of Directors or by any three directors.
Section 14. Waiver of Notice. Notice of a meeting of the Board of Directors need not
be given to any director who signs a waiver of notice either before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of such meeting and
waiver of any and all objections to the place of the meeting, the time of the meeting or the manner
in which it has been called or convened, except when a director states, at the beginning of the
meeting, any objection to the transaction of business because the meeting is not lawfully called or
convened.
Section 15. Conduct of Meetings.
(a) The Chairman of the Board of Directors shall preside at meetings of the Board of
Directors. If the Chairman of the Board of Directors is an employee of the Corporation, the Board
of Directors may appoint from among its members a Lead Director, who shall preside at executive
sessions of the Board at which employees of the Corporation or any of its subsidiaries shall not be
present. The Chairman, and in his or her absence, the Lead Director, and in his or her absence,
the Chief Executive Officer, and in his or her absence, the President or a Vice President, and in
their absence, any director chosen by the directors present, shall call meetings of the Board of
Directors to order and shall act as presiding officer of the meeting.
(b) The Secretary of the Corporation shall act as secretary of all meetings of the Board of
Directors but in the absence of the Secretary, the presiding officer may appoint any other person
present to act as secretary of the meeting. Minutes of any regular or special meeting of the Board
of Directors shall be prepared and distributed to each director.
(c) A majority of the directors present, whether or not a quorum exists, may adjourn any
meeting of the Board of Directors to another time and place. Notice of any such adjourned meeting
shall be given to the directors who were not present at the time of the adjournment and, unless the
time and place of the adjourned meeting are announced at the time of the adjournment, to the other
directors.
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(d) The Board of Directors may permit any or all directors to participate in a regular or a
special meeting by, or conduct the meeting through the use of, any means of communication by which
all directors participating may simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at the meeting.
Section 16. Action Without a Meeting. Any action required or permitted to be taken at
a meeting of the Board of Directors, or any action which may be taken at a meeting of a committee
thereof, may be taken without a meeting if a consent in writing, setting forth the action to be
taken, signed by all of the directors, or all the members of the committee, as the case may be, is
filed in the minutes of the proceedings of the Board of Directors or of the committee. Action
taken under this Section 16 shall be effective when the last director or committee member signs the
consent, unless the consent specifies a different effective date. A consent signed under this
Section 16 has the effect of a vote at a meeting and may be described as such in any document.
Section 17. The Chairman of the Board of Directors. The Board of Directors shall
elect from among its members a Chairman of the Board of Directors at the first meeting of the Board
of Directors after each annual meeting of shareholders. The Chairman of the Board of Directors, if
present, shall preside at all meetings of the Board of Directors and meetings of the shareholders,
and shall see that all orders and resolutions of the Board of Directors are carried into effect.
The Chairman shall perform such other duties as may be prescribed by the Board of Directors.
Section 18. Lead Director. If the Board of Directors appoints a Lead Director to
preside at executive sessions of the Board of Directors, the Board of Directors may assign to the
Lead Director by resolutions such additional duties as the Board of Directors determines, in its
discretion, including acting as a liaison between the Board of Directors and the officers of the
Corporation and assisting in the setting of agendas for meetings of the Board of Directors.
Article IV. Officers
Section 1. Number. The principal officers of the Corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents as authorized from time to time by the
Board of Directors, a Secretary, and a Treasurer, each of whom shall be appointed by the Board of
Directors. The Board of Directors shall designate from among the officers it appoints those who
shall be the executive officers of the Corporation responsible for all policy making functions,
under the direction of the Board of Directors. Such other officers and assistant officers as may
be deemed necessary may be appointed by the Board of Directors. The Board of Directors may also
authorize any duly appointed officer to appoint one or more officers or assistant officers. The
same individual may simultaneously hold more than one office.
Section 2. Appointment and Term of Office. The officers of the Corporation to be
appointed by the Board of Directors shall be appointed annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting of shareholders. If the
appointment of officers shall not be held at such meeting, such appointment shall be held as soon
23
thereafter as is practicable. Each officer shall hold office until his or her successor shall have
been duly appointed or until his or her prior death, resignation or removal.
Section 3. Removal. The Board of Directors may remove any officer and, unless
restricted by the Board of Directors, an officer may remove any officer or assistant officer
appointed by that officer, at any time, with or without cause and notwithstanding the contract
rights, if any, of the officer removed. The appointment of an officer does not of itself create
contract rights.
Section 4. Resignation. An officer may resign at any time by delivering notice to the
Corporation. The resignation shall be effective when the notice is delivered, unless the notice
specifies a later effective date and the Corporation accepts the later effective date. If a
resignation is made effective at a later date and the Corporation accepts the future effective
date, the pending vacancy may be filled before the effective date but the successor may not take
office until the effective date.
Section 5. Vacancies. A vacancy in any principal office because of death,
resignation, removal, disqualification or otherwise, shall be filled as soon thereafter as
practicable by the Board of Directors for the unexpired portion of the term.
Section 6. Chief Executive Officer. The Chief Executive Officer shall be the
principal executive officer of the Corporation and, subject to the direction of the Board of
Directors, shall in general supervise all of the business operations and affairs of the
Corporation. If the Chairman of the Board of Directors is not present, the Chief Executive Officer
shall preside at all meetings of the Board of Directors and shareholders of the Corporation. The
Chief Executive Officer shall have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such agents and employees of the Corporation as he or she shall deem
necessary, to prescribe their powers, duties and compensation, and to delegate authority to them.
Such agents and employees shall hold office at the discretion of the Chief Executive Officer. The
Chief Executive Officer shall have authority to sign certificates for shares of the Corporation the
issuance of which shall have been authorized by resolution of the Board of Directors, and to
execute and acknowledge, on behalf of the Corporation, all deeds, mortgages, bonds, contracts,
leases, reports and all other documents or instruments necessary or proper to be executed in the
course of the Corporation’s regular business, or which shall be authorized by resolution of the
Board of Directors; and except as otherwise provided by law or the Board of Directors, the Chief
Executive Officer may authorize the President or any Vice President or other officer or agent of
the Corporation to execute and acknowledge such documents or instruments in his or her place and
stead. In general, he or she shall perform all duties as may be prescribed by the Board of
Directors from time to time.
Section 7. President. The Board of Directors may appoint a President. The President
shall perform the duties of the Chief Executive Officer in the absence or disability of the Chief
Executive Office and shall, in general, perform such duties and have such authority as from time to
time may be delegated or assigned by the Chief Executive Officer or the Board of Directors.
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Section 8. Vice Presidents. The Board of Directors may appoint one or more Executive
Vice Presidents, Senior Vice Presidents and other Vice Presidents, prescribe their powers and
duties and specify to which other officer a Vice President should report. The Board of Directors
may authorize the Chief Executive Officer to appoint one or more Vice Presidents, to prescribe
their powers, duties and compensation, and to delegate authority to them.
Section 9. Secretary. The Secretary shall: (a) keep, or cause to be kept, minutes of
the meetings of the shareholders and of the Board of Directors (and of committees thereof) in one
or more books provided for that purpose (including records of actions taken by the shareholders or
the Board of Directors (or committees thereof) without a meeting); (b) be custodian of the
corporate records and of the seal of the Corporation, if any, and if the Corporation has a seal,
see that it is affixed to all documents the execution of which on behalf of the Corporation under
its seal is duly authorized; (c) authenticate the records of the Corporation; (d) maintain a record
of the shareholders of the Corporation, in a form that permits preparation of a list of the names
and addresses of all shareholders, by class or series of shares and showing the number and class or
series of shares held by each shareholder; (e) have general charge of the stock record books of the
Corporation; and (f) in general perform all duties incident to the office of Secretary and have
such other duties and exercise such authority as from time to time may be delegated or assigned by
the Chief Executive Officer or by the Board of Directors.
Section 10. Treasurer. The Treasurer shall: (a) have charge and custody of and be
responsible for all funds and securities of the Corporation; (b) maintain appropriate accounting
records; (c) receive and give receipts for moneys due and payable to the Corporation from any
source whatsoever, and deposit all such moneys in the name of the Corporation in such banks, trust
companies, or other depositaries as shall be selected in accordance with the provisions of these
Bylaws; and (d) in general perform all of the duties incident to the office of Treasurer and have
such other duties and exercise such other authority as from time to time may be delegated or
assigned by the Chief Executive Officer or by the Board of Directors.
Section 11. Assistant Secretaries and Assistant Treasurers. There shall be such
number of Assistant Secretaries and Assistant Treasurers as the Board of Directors may from time to
time authorize. The Assistant Secretaries and Assistant Treasurers, in general, shall perform such
duties and have such authority as shall from time to time be delegated or assigned to them by the
Secretary or the Treasurer, respectively, or by the Chief Executive Officer or the Board of
Directors.
Section 12. Other Officers, Assistants and Acting Officers. The Board of Directors
shall have the power to appoint, or to authorize any duly appointed officer of the Corporation to
appoint, any other officer of the Corporation with such title, duties and authority as the Board of
Directors, Chief Executive Officer or appointing officer may determine, or any person to act as
assistant to any officer, or as agent for the Corporation in his or her stead, or to perform the
duties of such officer whenever for any reason it is impracticable for such officer to act
personally, and such officer, assistant or acting officer or other agent so appointed by the Board
of Directors or an authorized officer shall have the power to perform all the duties of the office
to which he or she is so appointed, or as to which he or she is so appointed to act, except as such
25
power may be otherwise defined or restricted by the Board of Directors, the Chief Executive Officer
or the appointing officer.
Section 13. Compensation. The Board of Directors is authorized to determine, or to
provide the method of determining, or to empower a committee of its members to determine, the
compensation of all officers.
Section 14. Signing Checks and Other Instruments. The Board of Directors is
authorized to determine or provide the method of determining the manner in which deeds, contracts
and other obligations and instruments of the Corporation shall be signed. However, persons doing
business with the Corporation shall be entitled to rely upon the action of the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the Secretary or the
Treasurer in executing contracts and other obligations and instruments of the Corporation as having
been duly authorized. The Board of Directors of the Corporation is authorized to designate or
provide the method of designating depositaries of the funds of the Corporation and to determine or
provide the method of determining the manner in which checks, notes, bills of exchange and similar
instruments shall be signed, countersigned or endorsed.
Section 15. Voting Shares in Other Corporations. The Corporation may vote any and all
shares held by it in any other corporation by such officer, agent or proxy as the Board of
Directors may appoint, or, in default of any such appointment, by the Chief Executive Officer.
Article V. Stock Certificates
Section 1. Issuance. The Board of Directors may authorize shares to be issued for
consideration consisting of any tangible or intangible property or benefit to the Corporation,
including cash, promissory notes, services performed, promises to perform services evidenced by a
written contract, or other securities of the Corporation. Before the Corporation issues shares,
the Board of Directors shall determine that the consideration received or to be received for the
shares to be issued is adequate. The determination of the Board of Directors is conclusive insofar
as the adequacy of consideration for the issuance of shares relates to whether the shares are
validly issued, fully paid and nonassessable.
Section 2. Form.
(a) Shares of capital stock of the Corporation may, but need not, be represented by
certificates. Each stock certificate representing shares shall be signed by the Chief Executive
Officer or a Vice President and the Secretary or an Assistant Secretary or a facsimile thereof and
may be sealed with the seal of the Corporation or a facsimile thereof. If the person who signed
(either manually or in facsimile) a stock certificate no longer holds office when the certificate
is issued, the certificate is nevertheless valid.
(b) Each stock certificate representing shares shall, at a minimum, state upon the face
thereof: (a) the name of the Corporation and that the Corporation is organized under the laws of
the State of Florida; (b) the name of the person or persons to whom issued; and (c) the number and
class of shares and the designation of the series, if any, which such certificate represents.
26
(c) The Board of Directors may authorize the issuance of some or all of the shares of any or
all classes or series of capital stock of the Corporation without certificates. The authorization
shall not affect shares of capital stock already represented by certificates until such
certificates are surrendered to the Corporation or transfer agent of the Corporation. Within a
reasonable time after the issuance or transfer of shares without certificates, the Corporation
shall send the holder thereof a written statement of the information required on stock certificates
by these Bylaws or applicable law.
Section 3. Lost, Stolen, or Destroyed Certificates. The Corporation shall issue a new
stock certificate in the place of any certificate previously issued if the holder of record of the
certificate: (a) makes proof in affidavit form that it has been lost, destroyed or wrongfully
taken; (b) requests the issue of a new certificate before the Corporation has notice that the
certificate has been acquired by a purchaser for value in good faith and without notice of any
adverse claim; (c) at the discretion of the Corporation, gives a bond in such form as the
Corporation may direct, to indemnify the Corporation, the transfer agent and registrar against any
claim that may be made on account of the alleged loss, destruction or theft of a certificate or the
issuance of any such new certificate; and (d) satisfies any other reasonable requirements imposed
by the Corporation.
Section 4. Stock Transfers.
(a) In the case of shares represented by a certificate, upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation shall issue a new
certificate or new equivalent uncertificated shares to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
(b) In the case of shares not represented by a certificate, upon receipt of proper transfer
instructions from the record holder of uncertificated shares, the Corporation shall cancel such
uncertificated shares and issue new equivalent uncertificated shares to the person entitled
thereto, and record the transaction upon its books.
(c) The Board of Directors may appoint one or more transfer agents or registrars.
(d) Except as provided under applicable law, the person in whose name shares stand on the
books of the Corporation shall be deemed by the Corporation to be the owner thereof for all
purposes, and the Corporation shall not be bound to recognize any equitable or other claim to, or
interest in, such shares on the part of any other person, whether or not it shall have express or
other notice thereof.
Article VI. Indemnification
Section 1. Obligation to Indemnify in Actions, Suits or Proceedings other than Those by
or in the Right of the Corporation. The Corporation shall indemnify to the fullest extent
permitted by law any person who was or is a director, officer or key employee (as such key
employees are designated by the Chief Executive Officer and the Board of Directors) of the
27
Corporation and was or is a party or is threatened to be made a party to any proceeding (other than
an action by, or in the right of, the Corporation) by reason of the fact that he or she is or was a
director, officer or key employee (as such key employees are designated by the Chief Executive
Officer and the Board of Directors) of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against liability incurred in connection with such proceeding,
including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any proceeding by judgment, order, settlement or conviction or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner 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.
Section 2. Obligation to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation. The Corporation shall indemnify to the fullest extent permitted by law any
person who was or is a director, officer or key employee (as such key employees are designated by
the Chief Executive Officer and the Board of Directors) and was or is a party or is threatened to
be made a party to any proceeding by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director, officer or key employee (as
such key employees are designated by the Chief Executive Officer and the Board of Directors) of the
Corporation or is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise, against
expenses and amounts paid in settlement without regard to any limitation to the estimated expense
of litigating the proceeding to conclusion as contemplated in Section 607.0850(2) of the Act. Such
indemnification shall be authorized if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that
no indemnification shall be made under this 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 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 and amounts paid in settlement which such court shall deem proper.
Section 3. Successful Defense of Proceedings. To the extent that a director, officer
or key employee of the Corporation has been successful on the merits or otherwise in defense of any
claim, action, suit or proceeding referred to in Section 1 or Section 2 of this Article VI, or in
defense of any claim, issue or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith, notwithstanding that the
director, officer or key employee has not been successful on the merits or otherwise on any other
claim, issue or matter in any such claim, action, suit or proceeding.
Section 4. Expenses Payable in Advance. To the fullest extent permitted by the Act,
the Corporation shall advance all expenses within thirty (30) days after the receipt by the
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Corporation of a written request from a director or officer for such advancement and on a current
basis thereafter, whether prior to or after final disposition of the underlying proceeding. Such
written request shall be accompanied by evidence of the expenses incurred by such person and shall
include a written undertaking by or on behalf of the director or officer, as the case may be, to
repay any and all amounts advanced if it shall ultimately be determined that that person is not
entitled to indemnification by the Corporation. The repayment undertaking shall be unsecured and
interest-free. Expenses incurred by key employees may be paid in advance upon such terms or
conditions that the Board of Directors deems appropriate.
Section 5. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided pursuant to this Article VI are not exclusive,
and the Corporation may make any other or further indemnification or advancement of expenses of any
of its directors, officers or key employees, under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office. Where such other or further provision
provides broader rights of indemnification or advancement than these Bylaws, such other or further
provision shall control. However, indemnification or advancement of expenses shall not be made to
or on behalf of any director, officer or key employee, if a judgment or other final adjudication
establishes that his or her actions, or omissions to act, were material to the cause of action so
adjudicated and constitute:
(a) A violation of the criminal law, unless the director, officer or key employee had
reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his
or her conduct was unlawful;
(b) A transaction from which the director, officer or key employee derived an improper
personal benefit;
(c) In the case of a director, a circumstance under which the liability provisions of Section
607.0834 of the Act, are applicable; or
(d) Willful misconduct or a conscious disregard for the best interests of the Corporation in a
proceeding by or in the right of the Corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
Section 6. Survival of Indemnification and Advancement of Expenses. Indemnification
and advancement of expenses as provided in this Article VI shall continue as, unless otherwise
provided when authorized or ratified, to a person who has ceased to be a director, officer or key
employee and shall inure to the benefit of the heirs, executors and administrators of such a
person, unless otherwise provided when authorized or ratified. The rights of any person set forth
in Sections 1, 2 and 4 of this Article VI to indemnification and advancement of fees are
contractual rights and vest at the time a person becomes a director or officer of the Corporation
and no amendment that narrows, eliminates or otherwise restricts these indemnification provisions
and advancement of expenses provisions shall affect any right in respect of acts or omissions of
any indemnified person occurring prior to such amendment, but an amendment that broadens, adds to,
or otherwise expands these indemnification provisions and advancement of
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expenses provisions shall apply in respect of acts or omissions of any indemnified person occurring
prior to such amendment.
Section 7. Certain Definitions. For purposes of this Article VI, 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, officer, employee or agent of a constituent corporation, or is or
was serving at the request of a constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise, is in the same
position under this Article VI with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate existence had continued.
Additionally, for purposes of this Article VI:
(a) The term “other enterprises” includes employee benefit plans;
(b) The term “expenses” includes counsel fees, including those for appeal;
(c) The term “liability” includes obligations to pay a judgment, settlement, penalty, fine,
including an excise tax assessed with respect to any employee benefit plan, and expenses actually
and reasonably incurred with respect to a proceeding;
(d) The term “proceeding” includes any threatened, pending or completed action, suit or other
type of proceeding, whether civil, criminal, administrative or investigative and whether formal or
informal;
(e) The term “agent” includes a volunteer;
(f) The term “serving at the request of the corporation” includes any service as a director,
officer or key employee of the Corporation that imposes duties on such persons, including duties
relating to an employee benefit plan and its participants or beneficiaries; and
(g) The term “not opposed to the best interest of the Corporation” describes the actions of a
person who acts in good faith and in a manner he or she reasonably believes to be in the best
interests of the participants and beneficiaries of an employee benefit plan.
All other capitalized terms used in this Article VI and not otherwise defined herein shall
have the meaning set forth in Section 607.0850 of the Act.
Section 8. Insurance. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or agent of the
Corporation or is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such capacity or arising
out of his or her status as such, whether or not the Corporation would have the power to indemnify
him or her against such liability under the provisions of this Article VI.
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Article VII. Books and Records
Section 1. Books and Records.
(a) The Corporation shall keep as permanent records minutes of all meetings of the
shareholders and Board of Directors, a record of all actions taken by the shareholders or Board of
Directors without a meeting, and a record of all actions taken by a committee of the Board of
Directors in place of the Board of Directors on behalf of the Corporation.
(b) The Corporation or its agent shall maintain a record of the shareholders in a form that
permits preparation of a list of the names and addresses of all shareholders in alphabetical order
by class or series of shares showing the number and class or series of shares held by each.
(c) The Corporation shall keep a copy of all written communications within the preceding three
years to all shareholders generally or to all shareholders of a class or series, including the
financial statements required to be furnished by the Act.
(d) Any books, records and minutes may be in written form or in any other form capable of
being converted into written form within a reasonable time.
Section 2. Inspection Rights. Shareholders and directors are entitled to inspect and
copy records of the Corporation as permitted by the Act.
Article VIII. Dividends
The Board of Directors of the Corporation may, from time to time, declare and the Corporation
may pay dividends or make distributions on its shares in cash, property or its own shares, subject
to the provisions of the Articles of Incorporation and the laws of the State of Florida.
Article IX. Corporate Seal
The Board of Directors may provide for a corporate seal for the Corporation.
Article X. Amendment
These Bylaws may be amended or repealed by either the Board of Directors or the shareholders,
unless the Act reserves the power to amend these Bylaws generally or any particular bylaw
provision, as the case may be, exclusively to the shareholders or unless the shareholders, in
amending or repealing these Bylaws generally or any particular bylaw provision, provide expressly
that the Board of Directors may not amend or repeal these Bylaws or such bylaw provision, as the
case may be.
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Exhibit 4.1
AMENDMENT NO. 1
dated as of
March 4, 2011
to
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
between
THE ST. JOE COMPANY
and
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
as Rights Agent
AMENDMENT NO. 1
to
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
Amendment No. 1, dated as of March 4, 2011, (this “Amendment”) to the SHAREHOLDER
PROTECTION RIGHTS AGREEMENT, dated as of February 15, 2011, between The St. Joe Company, a Florida
corporation (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York
limited liability trust company, as Rights Agent (the “Rights Agent).
WITNESSETH:
WHEREAS, pursuant to Section 5.5 of the Agreement, the Company and the Rights Agent may amend
the Agreement in any respect without the approval of any holders of Rights prior to the Flip-In
Date (as defined in the Agreement);
WHEREAS, the Flip-In Date has not occurred;
NOW THEREFORE, in consideration of the premises, the parties hereby agree to amend the
definition of Expiration Date as follows:
“Expiration Date” shall mean March 4, 2011.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
| THE ST. JOE COMPANY |
||||
| By: | /s/ Bruce R. Berkowitz | |||
| Name: | Bruce R. Berkowitz | |||
| Title: | Chairman of the Board | |||
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC |
||||
| By: | /s/ Karishma P. Kadian | |||
| Name: | Karishma P. Kadian | |||
| Title: | Counsel | |||
Exhibit 99.1
Associates of St. Joe:
These past months have not been easy — especially, for you and your
families.
Your new Board understands this and our responsibilities to all
stakeholders of Joe. We are already working hard for a better future.
Charlie Fernandez and I have traveled the globe twice in the past few
months discussing all of the possibilities at Joe with top-class
organizations.
We have asked leaders from all over the world to see the opportunities
for themselves...and they’re coming.
St. Joe is a national treasure, capable of developing world-class
communities for work and play. We will not waste these opportunities.
Today starts a new Board with fresh eyes and ears. Your
new Board — with experience that will benefit Joe.
Governor Charlie Crist brings to Joe his fight for the people of Florida
and, in particular, this very special part of our State.
Howard Frank, the Vice Chairman and Chief Operating Officer of Carnival
Corp., brings to Joe decades of business success.
Charlie Fernandez and I bring Fairholme’s shareholders, clients and
potential partners for win-win solutions.
We are moving fast to create a new vision, a meritocracy — where you are
paid for performance, no matter your position. We will build a company
with no ceilings.
However, I will not sugar coat the current situation. St. Joe is losing
money, selling valuable assets to cover losses and is under attack.
We cannot continue on this course for long or there will be no Joe.
Starting today, we will not continue down this road.
St. Joe will have the capital it needs, will build
on what you have already done and will quickly move forward.
Joe will become a model of what can be.
My personal commitment to you is to take whatever steps are needed to make Joe successful.
I know change is painful, but the seeds of greatness are planted during
tough times.
Hang in there!
Bruce