SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Current Report pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): July 1, 2008
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation)
(Commission file number)
(I.R.S. Employer Identification No.)
13794 NW 4th Street, Suite 212
Sunrise, FL 33325
(Address of principal executive offices, including zip code)
(Registrants telephone number, including area code)
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:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers
Effective July 1, 2008, Mr. Howard J. Leonhardt, who co-founded Bioheart and serves as our
Chairman of the Board and Chief Technology Officer, was appointed to serve as our Chief Executive
Officer following the resignation of Mr. William M. Pinon as President and Chief Executive Officer
as of the same date. Mr. Pinon also resigned as a member of our Board of Directors effective as of
July 1, 2008. Mr. Pinon has agreed to remain with the Company through July 25, 2008 to assist us
in the executive transition process. There were no disagreements between Mr. Pinon and the Company
on any matter relating to our operations, policies or practices that resulted in Mr. Pinons
decision to resign as an executive officer and director or the timing of his decision.
Mr. Leonhardt, age 46, previously served as our Chief Executive Officer from our inception
through March 2007 and as our Executive Chairman from March 2007 through March 2008. In 1986, Mr.
Leonhardt founded World Medical Manufacturing Corporation (World Medical) and served as its Chief
Executive Officer from 1986 until December 1998 when World Medical was acquired by Arterial
Vascular Engineering, Inc. (AVE). AVE was acquired by Medtronic, Inc. in January 1999. Mr.
Leonhardt was the co-inventor of World Medicals primary product, the TALENT (Taheri-Leonhardt)
stent graft system. From December 1998 until June 1999, Mr. Leonhardt served as President of World
Medical, a subsidiary of Medtronic. Scientific articles written by Mr. Leonhardt have been
published in a number of publications including Techniques in Vascular and Endovascular Surgery and
the Journal of Cardiovascular Surgery. Mr. Leonhardt received a diploma in International Trade from
the Anoka-Hennepin Technical College, attended the University of Minnesota and Anoka-Ramsey
Community College and holds an honorary Doctorate Degree in Biomedical Engineering from the
University of Northern California.
Mr. Leonhardt is the cousin of Scott Bromley, our Vice President of Public Relations, and the
brother-in-law of Ms. Catherine Sulawske-Guck, our Vice President of Administration and Human
Resources. Mr. Leonhardt, who beneficially owns approximately 33.3% of our common stock as of the
date hereof, has, at various times since our inception, provided us with financial support,
providing a $3.3 million limited personal guarantee of our $5 million loan to Bank of
America and pledging securities accounts with Bank of America to back-up this limited
personal guarantee, in return for which he was granted warrants to purchase an aggregate of
183,483 shares of our common stock at an exercise price of $7.69 per share;
providing a personal guarantee of our obligations under the lease for our facilities in
Sunrise, Florida; and
providing a personal guarantee of our corporate credit cards.
He also purchased 114,000 shares of our common stock in our initial public offering in
February 2008 at the offering price of $5.25 per share and has guaranteed one of our directors the
repayment of his initial $200,000 investment in the Company.
In light of his resignation, Mr. Pinon will not stand for re-election at our upcoming annual
meeting of shareholders that will be held on July 30, 2008 (the Annual Meeting). Effective as of
July 1, 2008, the Board approved the amendment of our Amended and Restated Bylaws to modify the
permissible number of directors from between nine and twelve directors to between seven and twelve
directors. Pursuant to our Bylaws, the exact number of directors is to be determined within the
permissible range from time to time by resolution duly adopted by the Board of Directors. Since
Ms. Linda Tufts, a current member of our Board of Directors, was not nominated for re-election to the
Board at the Annual Meeting, our Board of Directors has determined to reduce the size of our Board
to eight members immediately following the commencement of the Annual Meeting. Accordingly, only
eight persons will be elected to our Board of Directors at the Annual Meeting.
On July 3, 2008, we issued a press release announcing the matters discussed above. A copy of
that press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As discussed in Item 5.02 above, effective July 1, 2008, our Amended and Restated Bylaws were
amended to set the permissible number of directors at no less than seven and no more than twelve
directors. Our Bylaws, as amended and restated as discussed herein, are filed as Exhibit 3.1 to
this Form 8-K.
Financial Statements and Exhibits
Amended and Restated Bylaws of Bioheart, Inc.
Press Release dated July 3, 2008
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.
Date: July 3, 2008
/s/ William H. Kline
William H. Kline
Chief Financial Officer
INDEX TO EXHIBITS
Amended and Restated Bylaws of Bioheart, Inc.
Press release dated July 3, 2008
AMENDED AND RESTATED BYLAWS
(hereinafter called the Corporation)
. The registered office of the Corporation required by
the Florida Business Corporation Act must be maintained in the State of Florida and need not be
identical with the principal office of the State of Florida. The address of the registered office
may be changed from time to time by the Board of Directors or, if within the country, by the
registered agent. The business office of the registered agent of the Corporation shall be
identical to such registered office.
Principal Place of Business.
The Corporation may have such principal and
other business offices in the State of Florida as the Board of Directors may designate or as the
business of the Corporation may require from time to time.
. The Corporation may also have offices at such other places
both within and outside the State of Florida as the Board of Directors may from time to time
MEETINGS OF SHAREHOLDERS
. The annual meeting of shareholders of the Corporation for
the election of Directors and for the transaction of such other business as may properly come
before the meeting shall be held at the time and place designated by the Board of Directors of the
. Special meetings of the shareholders may be called by
the Chairman of the Board of Directors, the Chief Executive Officer of the Corporation, by
resolution of a majority of the full Board of Directors, or by the holder or holders of not less
than a majority of all the outstanding shares of stock of the Corporation entitled to vote on the
matter or matters to be presented at the meeting. Such request shall state the purpose or purposes
of the proposed meeting. No business shall be conducted at any special meeting other than the
business for which the special meeting is called as set forth in the notice of the special meeting.
Special meetings shall be held at the time and place designated by the Chief Executive Officer of
Place and Presiding Officer
. Meetings of the shareholders may be held
within or outside the State of Florida. Meetings of the shareholders may be presided over by the
Chairman of the Board, the President or any Vice President. The Secretary of the Corporation, or
any person chosen by the person presiding over the shareholders meeting, shall act as Secretary
for the meeting.
. Written notice stating the place, day and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be
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less than ten nor more than sixty days before the meeting, personally, by United States mail, or in
such other manner as may be permitted by law, by or at the direction of the Chairman of the Board,
the President, the Secretary, or the officer or persons calling the meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail addressed to the
shareholder at his or her address as it appears on the stock transfer books of the Corporation,
with postage thereon prepaid.
Notice of Adjourned Meetings
. When a meeting is adjourned to another time
or place, it shall not be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which the adjournment is
taken, and at the adjourned meeting any business may be transacted that might have been transacted
on the original date of the meeting. If, however, after the adjournment the Board of Directors
fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given
as provided in Section 4 of this Article II to each shareholder of record on the new record date
entitled to vote at such meeting.
. The Board of Directors may fix in advance a date as the
record date for any determination of shareholders, such date in any case to be not more than
seventy days (or such longer period as may from time to time be permitted by law) and, in case of a
meeting of shareholders, not less than ten days prior to the date on which the particular action
requiring such determination of shareholders is to be taken.
If no record date is fixed for the determination of shareholders entitled to notice of or to
vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the record date for such
determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of shareholders has been
made as provided in this Section 6, such determination shall apply to any adjournment thereof,
unless the Board of Directors fixes a new record date for the adjourned meeting.
List of Shareholders Entitled to Vote
. The officer of the Corporation who
has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before
every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each shareholder and the number of
shares registered in the name of each shareholder. Such list shall be open to the examination of
any shareholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least 10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
shareholder of the Corporation who is present.
Shareholder Quorum and Voting
. A majority of the total number of shares
outstanding and entitled to vote, present in person or represented by proxy thereat, shall
constitute a quorum at a meeting of shareholders for the transaction of business, except as
otherwise provided by law or by the Corporations Articles of Incorporation, as amended (the
Articles of Incorporation). If a specified item of business is required to be voted on by a
class or series of shares, a majority of the total number of shares outstanding and entitled to
vote of such class or series, present in person or represented by proxy thereat, shall constitute a
quorum at a meeting of shareholders for the transaction of such item of business by such class or
series. If, however, a quorum does not exist at a meeting, the
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holders of a majority of the shares present at such meeting and entitled to vote may adjourn the
meeting from time to time, without notice other than by announcement at the meeting, until the
requisite number of shares entitled to vote shall be present. At any such adjourned meeting at
which a quorum exists, any business may be transacted which might have been transacted at the
meeting as originally noticed. After a quorum has been established at a meeting, the subsequent
withdrawal of shareholders, so as to reduce the number of shares entitled to vote at the meeting
below the number required for a quorum, shall not affect the validity of any action taken at the
meeting or any adjournment thereof.
If a quorum exists, action on a matter (other than the election of directors) is approved by a
voting group if the votes cast within the voting group favoring the action exceed the votes cast
within the voting group opposing the action unless a greater number of affirmative votes is
required by law or by the Articles of Incorporation. If a quorum exists, directors will be elected
by a plurality of the votes cast by the shares entitled to vote in the election. Unless the
Articles of Incorporation provides otherwise, shareholders do not have a right to cumulate their
votes for directors.
Inspectors of Election
. Before any meeting of shareholders, the Board of
Directors may appoint an inspector of elections to act at the meeting and any adjournment thereof.
If no inspector of elections is so appointed by the Board, then the Chairman of the meeting may
appoint an inspector of elections to act at the meeting. If any person appointed as inspector fails
to appear or fails or refuses to act, then the chairman of the meeting may, and upon the request of
any shareholder or a shareholders proxy shall, appoint a person to fill that vacancy.
The inspectors shall:
ascertain the number of shares outstanding and the voting power of each;
determine the shares represented at the meeting and the validity of proxies and ballots;
count all votes and ballots;
determine and retain for a reasonable period a record of the disposition of any challenges
made to any determination made by the inspectors; and
certify their determination of the number of shares represented at the meeting, and their
count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist the inspectors in the
performance of the duties of the inspectors. In determining the validity and counting of proxies
and ballots, the inspectors shall act in accordance with applicable law.
Order of Business
(a) (1) Nominations of persons for election to the Board of Directors of the Corporation and
the proposal of any other business to be considered by the shareholders of the Corporation may be
made at any annual meeting of shareholders, only (i) pursuant to the Corporations notice of
meeting (or any supplement thereto), (ii) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (iii) by any shareholder of the Corporation who is a holder
of record at the time of the giving of the notice provided for in this Section 10, who is entitled
to vote at the meeting and
who complies with the procedures set forth in this Section 10.
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(2) For nominations or other business properly to be brought before an annual meeting by a
shareholder of the Corporation, the shareholder must have given timely notice thereof in proper
written form to the Secretary of the Corporation and any such proposed business other than the
nomination of persons for election to the Board of Directors must constitute a proper matter for
shareholder action. To be timely, a shareholders notice must be delivered in person or by
facsimile, or sent by U.S. certified mail and received, at the principal executive offices of the
Corporation not earlier than the 120th day prior and not later than the close of business on the
90th day prior to the anniversary date of the immediately preceding annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30 days earlier or more
than 60 days later than such anniversary date, notice by the shareholder to be timely must be so
delivered or received not earlier than the 120th day prior to such annual meeting and not later
than the close of business on the later of the 90th day prior to such annual meeting or the 10th
day following the day on which public announcement of the date of such meeting is first made. In no
event shall the public announcement of an adjournment or postponement of an annual meeting commence
a new time period (or extend any time period) for the giving of notice by a shareholder as
described above. To be in proper written form, a shareholders notice to the Secretary of the
Corporation shall set forth in writing as to each matter the shareholder proposes to bring before
the annual meeting: (i) as to each person whom the shareholder proposes to nominate for election or
re-election as a director, all information relating to such person that is required to be disclosed
in solicitations of proxies for election of directors in an election contest, or is otherwise
required pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
Exchange Act) (including such persons written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (ii) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the business desired to be
brought before the annual meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration) and the reasons for conducting such business at the annual
meeting and in the event that such business includes a proposal to amend the bylaws of the
Corporation, the language of the proposed amendment; (iii) the name and address, as they appear on
the Corporations books, of the shareholder proposing such business or nomination and the name and
address of the beneficial owner, if any, on whose behalf the nomination or proposal is being made;
(iv) the class or series and number of shares of the Corporation which are beneficially owned or
owned of record by the shareholder and the beneficial owner; (v) any material interest of the
shareholder in such nomination or other business; (vi) a representation that the shareholder is a
holder of record of stock of the Corporation entitled to vote at such annual meeting on the matter
proposed and intends to appear in person or by proxy at such meeting to propose such nomination or
other business; and (vii) if the shareholder intends to solicit proxies in support of such
shareholders proposal, a representation to that effect.
(3) Notwithstanding anything in paragraph (a)(2) above to the contrary, in the event that the
number of directors to be elected to the Board of Directors at an annual meeting of the
shareholders is increased in accordance with Article III, Section 2 and there is no public
announcement naming all of the nominees for directors or specifying the size of the increased Board
of Directors made by the Corporation at least 90 days prior to the first anniversary of the date of
the immediately preceding annual meeting, a shareholders notice required by this Section 10 shall
also be considered timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered in person or by facsimile, or sent by U.S. certified mail and
received by the Secretary of the Corporation at the principal executive offices of the Corporation
not later than the close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
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(b) Only such business shall be conducted at a special meeting of shareholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting of shareholders at
which directors are to be elected pursuant to the Corporations notice of meeting (i) by or at the
direction of the Board of Directors (or any duly authorized committee thereof) or (ii) provided
that the Board of Directors has determined that directors shall be elected at such meeting, by any
shareholder of the Corporation who is a holder of record at the time of the giving of notice
provided for in this Section 10, who is entitled to vote at the meeting for the election of
directors and who complies with the procedures set forth in this Section 10. In the event a special
meeting of shareholders is properly called for the purpose of electing one or more directors to the
Board of Directors, any such shareholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporations notice of meeting, if the
shareholder has given timely notice thereof in proper written form to the Secretary of the
Corporation. To be timely, a shareholders notice must be delivered in person or by facsimile, or
sent by U.S. certified mail and received, at the principal executive offices of the Corporation not
earlier than the 120th day prior to such special meeting and not later than the close of business
on the later of the 90th day prior to such special meeting or the 10th day following the day on
which public announcement of the date of such special meeting is first made. In no event shall the
public announcement of an adjournment or postponement of a special meeting commence a new time
period (or extend any time period) for the giving of notice by a shareholder as described above. To
be in proper written form, such notice must meet the requirements of paragraph (a)(2) above
applicable to nominations of persons for election to the Board of Directors.
(c) The notice requirements set forth in this Section 10 shall be deemed satisfied by a
shareholder if the shareholder has notified the Corporation of his or her intention to make a
nomination or present a proposal at the applicable meeting of shareholders and such shareholders
nominee or proposal has been included in a proxy statement that has been prepared by management of
the Corporation to solicit proxies for such meeting; provided, however, that if such shareholder
does not appear or send a qualified representative to present such nominee or proposal at such
meeting, the Corporation need not present such nominee or proposal for a vote at such meeting
notwithstanding that proxies in respect of such vote may have been received by the Corporation. For
purposes of this Section 10, to be considered a qualified representative of the shareholder, a
person must be authorized by a writing executed by such shareholder or an electronic transmission
(as defined in the Florida Business Corporation Act, as amended) delivered by such shareholder to
the Secretary of the Corporation 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 such writing or electronic transmission, at the meeting of shareholders. The
Corporation may require any proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as a director of the
Corporation (including any applicable requirements regarding the independence of directors).
(d) Except as otherwise provided in the Corporations Articles of Incorporation, as amended
from time to time, only such persons who are nominated in accordance with this Section 10 or are
chosen to fill any vacancy occurring in the Board of Directors in accordance with Article III,
Section 3 shall be eligible to serve as directors of the Corporation and only such business shall
be conducted at a meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Section 10. The Chairman of a meeting shall refuse
to permit any business to be brought before the meeting which fails to comply with the foregoing or
if a shareholder solicits proxies in support of such shareholders nominee or proposal without such
shareholder having made the representation required by clause (vii) of paragraph (a)(2) above.
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(e) For purposes of this Section 10, public announcement shall mean disclosure in a press
release reported by the Dow Jones News Services, Associated Press or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(f) Notwithstanding the foregoing provisions of this Section 10, a shareholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder, and all applicable rules and requirements of the Nasdaq Stock Market (the NASDAQ) or,
if the Corporations shares are not listed on the NASDAQ, the applicable rules and requirements of
the primary securities exchange or quotation system on which the Corporations shares are listed or
quoted, in each case with respect to the matters set forth in this Section 10. Nothing in this
Section 10 shall be deemed to affect any rights of shareholders to request inclusion of proposals
or nominations in the Corporations proxy statement pursuant to applicable rules and regulations
promulgated under the Exchange Act.
. 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.
. The number of directors of the Corporation shall not be less than
seven nor more than twelve. The authorized number of directors, within the limits above specified,
shall be determined by the affirmative vote of a majority of the entire Board of Directors given at
a regular or special meeting thereof. No decrease in the number of directors constituting the Board
of Directors shall shorten the term of any incumbent director.
At each annual meeting the shareholders shall elect directors to hold office until the next
succeeding annual meeting. Each director so elected shall hold office for the term of which he or
she is elected and until his or her successor shall have been elected and qualified or until his or
her earlier resignation, retirement, removal from office or death.
. Any vacancy occurring in the Board of Directors, including a
vacancy created by an increase in the number of directors, may be filled until the next succeeding
annual election by the affirmative vote of a majority of the directors then in office, though less
than a quorum of the Board of Directors, provided, that in case of a vacancy created by removal of
a director, the shareholders shall have the right to fill such vacancy at the same meeting or any
Removal of Directors
. A director may be removed by shareholders, but only
for cause and only by the affirmative vote of the holders of at least a majority of the voting
power of the then outstanding shares of the Corporations voting capital stock (Voting Stock),
voting together as a single class. Except as may otherwise be provided by law, cause for removal
shall be construed to exist only if the director whose removal is proposed has been convicted of a
felony by a court of competent jurisdiction and such conviction is no longer subject to direct
appeal or has been adjudged by a court of competent jurisdiction to be liable for negligence or
misconduct in the performance of his or her duty to the Corporation in a matter of substantial
importance to the Corporation, and such adjudication is no longer subject to direct appeal.
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Notwithstanding the foregoing, and except as otherwise provided by law, in the event that
holders of any class or series of Preferred Stock are entitled, voting separately as a class, to
elect one or more directors, the provisions of this Section 4 shall apply, in respect to the
removal of a director so elected, to the vote of the holders of the outstanding shares of that
class or series and not to the vote of the outstanding shares of Voting Stock voting together as a
Resignation of Directors
. Any director may resign at any time effective
upon giving written notice to the Corporation, unless the notice specifies a later time for the
effectiveness of such resignation.
Quorum and Voting
. A majority of the number of directors fixed by, or in
the manner provided in, these bylaws shall constitute a quorum for the transaction of business;
provided, however, that whenever, for any reason, a vacancy occurs in the Board of Directors, the
quorum shall consist of a majority of the remaining directors until the vacancy has been filled.
The act of the majority of the directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors.
Executive and Other Committees
. The Board of Directors, by resolution
adopted by a majority of the entire Board of Directors, may designate from among its members an
executive committee and one or more other committees. Each committee of the Board of Directors
shall have such powers and functions as may be delegated to it by resolution adopted by the entire
Board of Directors, except as prohibited by law.
The Board of Directors, by resolution adopted in accordance with this Section 7, shall
designate a Chairman for each committee it establishes who shall preside at all meetings of the
committee and who shall have such additional duties as shall from time to time be designated by the
Board of Directors.
The Board of Directors, by resolution adopted in accordance with this Section 7, 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.
. Regular meetings of the Board of Directors shall be held without
notice at the location of and immediately after the adjournment of the annual meeting of
shareholders in each year, and at such other time and place, as may be determined by the Board of
Directors. Notice of the time and place of special meetings of the Board of Directors shall be
given to each director either by personal delivery, telegram, cablegram, telephone, or electronic
mail at least two days prior to the meeting. Notice may also be given through the postal service if
mailed at least five days prior to the meeting.
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 a 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.
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Except as otherwise provided in the Articles of Incorporation, neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
A majority of the directors present, whether or not a quorum exists, may adjourn any meeting
of the Board of Directors to another time and place. Notice of any such adjourned meeting shall be
given to the directors who were not present at the time of the adjournment and, unless the time and
place of the adjourned meeting are announced at the time of adjournment, to the other directors.
Meetings of the Board of Directors may be called by the Chairman of the Board or by any two
Members of the Board of Directors may participate in a meeting of such board by means of a
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time. Participation by such means
shall constitute presence in person at a meeting.
Meetings of the Board of Directors shall be presided over by the Chairman of the Board, or if
such position is vacant or such person is absent, the directors shall elect a Chairman for the
meeting from one of their members present.
Action Without a Meeting
. Any action required to be taken at a meeting of
the directors or any action which may be taken at a meeting of the directors or a committee
thereof, may be taken without a meeting if a consent in writing, setting forth the action so 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 or of the committee. Such consent shall have
the same effect as a unanimous vote.
Fees and Compensation
. Directors and members of committees may receive
such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed
or determined by the Board of Directors.
. The officers of the Corporation shall consist of a Chairman of the
Board, a Chief Executive Officer, a Chief Financial Officer, a Secretary, a Treasurer and such Vice
Presidents and other officers as may be appointed by the Board of Directors or by a duly appointed
officer authorized by these bylaws or by resolution of the Board of Directors to appoint officers.
Appointment and Term
. The officers of the Corporation shall be appointed
by the Board of Directors or by a duly appointed officer authorized to appoint officers. Each
officer shall hold office until the first Board of Directors meeting immediately following the
annual shareholders meeting next occurring after his or her appointment to office and until his or
her successor shall have been appointed or until his or her earlier resignation, retirement,
removal from office or death.
Authority and Duties
. The officers of the Corporation shall have the
authority and shall exercise the powers and perform the duties specified below and as may be
additionally specified from time to time by resolution of the Board of Directors.
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(a) Chief Executive Officer
. The Chief Executive Officer of the Corporation shall, subject to
the provisions of these Bylaws and the control of the Board of Directors, have general and active
management, direction, and supervision over the business of the Corporation and over its officers.
He shall perform all duties incident to the office of chief executive and such other duties as from
time to time may be assigned to him by the Board of Directors. The Chief Executive Officer shall
report directly to the Board of Directors and shall have the right to delegate any of his powers to
any other officer or employee.
(b) Chief Financial Officer
. The Chief Financial Officer shall be responsible for the
financial affairs of the Corporation and shall be the chief accounting officer for federal
securities law purposes. The Chief Financial Officer shall be responsible for the supervision of
the Treasurer. He shall perform all duties incident to the office of chief financial officer, and
such other duties as may from time to time be assigned to him by the Board of Directors or Chief
. The Secretary shall keep or cause to be kept, at the principal executive
office or such other place as the Board of Directors may order, a book of minutes of all meetings
of shareholders, the Board of Directors and its committees, with the time and place of holding,
whether regular or special, and if special, how authorized, the notice thereof given, the names of
those present at Board of Directors and committee meetings, the number of shares present or
represented at shareholders meetings, and the proceedings thereof. The Secretary shall keep, or
cause to be kept, a copy of the Bylaws of the Corporation at the principal executive office or
business office of the Corporation.
The Secretary shall keep, or cause to be kept, at the principal executive office or at the
office of the Corporations transfer agent or registrar, if one be appointed, a stock register, or
a duplicate stock register, showing the names of the shareholders and their addresses, the number
and classes of shares held by each and, for holders of certificated shares, the number and date of
certificates issued for the same and the number and date of cancellation of every certificate
surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of the shareholders and
of the Board of Directors and any committees thereof required by these Bylaws or by law to be
given, shall keep the seal of the Corporation in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors.
. The Treasurer shall have the custody of the corporate funds and securities of
the Corporation and shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the Corporation, and shall send or
cause to be sent to the shareholders of the Corporation such financial statements and reports as
are by law or these Bylaws required to be sent to them.
The Treasurer shall deposit all moneys and valuables in the name and to the credit of the
Corporation with such depositaries as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the Chief Executive Officer and directors, whenever they request it, an account of all
transactions and of the financial condition of the Corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board of Directors.
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Removal of Officers
. Any officer may be removed by the Board of Directors
at any time with or without cause. Removal of any officer shall be without prejudice to the
contract rights, if any, of the person so removed; provided, however, the appointment of any
officer shall not of itself create contract rights.
. Certificates representing shares in the Corporation
shall be signed by the Chief Executive Officer or Chief Financial Officer and the Secretary or an
assistant Secretary. In addition, such certificates may be signed by a transfer agent or a
registrar (other than the Corporation itself) and may be sealed with the seal of the Corporation or
a facsimile thereof. Any or all of the signatures on such certificates may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before
such certificate is issued, such certificate may be issued by the Corporation with the same effect
as if he or she were such officer, transfer agent or registrar at the date of its issuance.
Each certificate representing shares shall state upon the face thereof: the name of the
Corporation; that the Corporation is organized under the laws of Florida; the name of the person or
persons to whom issued; the number and class of shares and the designation of the series, if any,
which such certificate represents; and the par value of each share represented by such certificate
or a statement that the shares are without par value.
. The Board of Directors may direct a new certificate or
uncertificated shares to be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or uncertificated shares, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as
it may direct as indemnity against any claim that may be made against the Corporation with respect
to the certificate alleged to have been lost, stolen or destroyed.
. Transfers of shares of capital stock of the Corporation shall
be made only on the stock record of the Corporation by the holder of record thereof or by his
attorney thereunto authorized by the power of attorney duly executed and filed with the Secretary
of the Corporation or the transfer agent thereof, and (1) in the case of certificated shares, only
on surrender of the certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power, or (2) in the case of uncertificated shares,
upon receipt of proper transfer instructions from the registered owner of such uncertificated
shares, or from a duly authorized attorney or from an individual presenting proper evidence of
succession, assignment or authority to transfer the stock. The Board of Directors may make such
additional rules and regulations as it may deem expedient concerning the issue and transfer of
certificates representing shares of the capital stock of the Corporation.
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. The Corporation shall be entitled to recognize the
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or persons as the
Board of Directors may from time to time designate.
. The fiscal year of the Corporation shall end on December 31 of
each year, unless otherwise fixed by resolution of the Board of Directors.
Voting Securities Owned by the Corporation
. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may, at the direction of the Board of Directors, be executed in the name of and on
behalf of the Corporation by the Chairman of the Board of Directors, the Chief Executive Officer or
any other officer or officers authorized by the Board of Directors, and any such officer may, at
the direction of the Board of Directors, vote, represent and exercise on behalf of the Corporation
all rights incident to any and all shares of any other corporation or corporations.
The Board of Directors of the Corporation may, from time to time, declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms and conditions
provided by law and by the Articles of Incorporation.
. The Corporation shall indemnify to the fullest extent authorized
or permitted by law (as now or hereafter in effect) any person made, or threatened to be made, a
defendant or witness to any action, suit or proceeding (whether civil or criminal or otherwise) by
reason of the fact that he, his testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at the request of the
Corporation, is or was serving any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity. Nothing contained herein shall affect any rights
to indemnification to which employees other than directors and officers may be entitled by law. No
amendment or repeal of this Section 1 shall apply to or have any effect on any right to
indemnification provided hereunder with respect to any acts or omissions occurring prior to such
amendment or repeal.
. In furtherance and not in limitation of the powers
conferred by statute:
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(a) the Corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the Corporation, or is serving at the request of the
Corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not
the Corporation would have the power to indemnify him against such liability under the provisions
of law; and
(b) the Corporation may create a trust fund, grant a security interest and/or use other means
(including, without limitation, letters of credit, surety bonds and/or other similar arrangements),
as well as enter into contracts providing indemnification to the full extent authorized or
permitted by law and including as part thereof provisions with respect to any or all of the
foregoing to ensure the payment of such amounts as may become necessary to effect indemnification
as provided therein, or elsewhere.
ACTION WITH RESPECT TO
SECURITIES OF OTHER CORPORATIONS
Unless otherwise directed by the Board of Directors, the Chief Executive Officer or his or her
designee shall have power to vote and otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of shareholders of or with respect to any action of shareholders of any other
corporation in which the Corporation may hold securities and to otherwise exercise any and all
rights and powers which the Corporation may possess by reason of its ownership of securities in
such other corporation.
The power to adopt, alter, amend or repeal bylaws shall be vested in the Board of Directors.
Bylaws adopted by the Board of Directors may be repealed or changed, and new bylaws may be adopted
by shareholders only if such repeal, change or adoption is approved by the affirmative vote of the
holders of at least 75% of the then outstanding shares entitled to vote, voting together as a
CONTINUING EFFECT OF BYLAW PROVISIONS
Any provisions contained in these bylaws which, at the time of its adoption, was authorized or
permitted by applicable law shall continue to remain in full force and effect until such time as
such provision is specifically amended in accordance with these bylaws, notwithstanding any
subsequent modification of such law (except to the extent such bylaw provision expressly provides
for its modification by or as a result of any such subsequently enacted law).
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