UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
The
Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 28,
2009
Consolidated-Tomoka
Land Co.
(Exact
name of registrant as specified in its charter)
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Florida
(State
or other jurisdiction of incorporation)
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01-11350
(Commission
File Number)
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59-0483700
(IRS
Employer Identification No.)
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1530
Cornerstone Boulevard, Suite 100
Daytona
Beach, Florida
(Address
of principal executive offices)
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32117
(Zip
Code)
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Registrant’s
telephone number, including area code: (386)
274-2202
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Not
Applicable
(Former
name or former address, if changed since last report.)
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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))
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
Amendment and Restatement of
Articles of Incorporation
On October 28, 2009, the Board of
Directors (the “Board”) of Consolidated-Tomoka Land Co. (the “Company”) approved
the amendment and restatement of the Articles of Incorporation (the “Articles”)
of the Company, effective on such date, a copy of which is attached as Exhibit
3.1 to this Current Report on Form 8-K. The amendment and restatement
of the Articles consolidated previous amendments and deleted historical
provisions in the Articles that are no longer relevant or applicable, without
any substantive change to the Articles.
Amendment and Restatement of
Bylaws
Also on October 28, 2009, the Board
approved amendments to the Company’s Amended and Restated Bylaws (the “Bylaws”),
effective as of such date. The following is a summary of the more
significant amendments:
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Section
1.3 (notice of Meetings) was amended to permit the Company to cease
mailing notice to invalid shareholder addresses in accordance with Florida
law.
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Section
1.5 (Quorum) was amended to more closely conform quorum and adjournment
requirements to Florida law.
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Section
1.6 (Organization) was amended to explicitly authorize the Board to adopt
rules, regulations and procedures for the conduct of shareholders’
meetings and to appoint an inspector of
elections.
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Sections
1.7 (Voting; Proxies) and 1.9 (List of Shareholders Entitles to Vote) were
amended to more closely conform to Florida
law.
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Section
1.11 (Advance Notice Provisions) was amended to (1) change the deadline
for nominations and other proposals to not less than 150 days prior to the
anniversary of the meeting date; and (2) require director nominees to
complete the Company’s director questionnaire in connection with a
nomination.
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Section
2.2 (Election; Resignation; Removal; Vacancies) was amended to conform to
Florida law.
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Sections
3.1 (Committees) and 3.2 (Committee Charter and Rules) were revised to
more closely confirm to Florida law and to specifically contemplate the
adoption of committee charters.
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Section
4.1 (Executive Officers; Election; Qualification; Term of Office;
Resignation; Removal; Vacancies) was amended to include explicit authority
for the Board to designate certain officers as “executive
officers.”
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Section
6.4 (Indemnification of Directors, Officers, Employees, and Agents) was
amended to more closely conform to Florida law, including amendments to
(1) set forth separately the rights to indemnification and advancement of
fees; and (2) clarify that the rights to indemnification and advancement
are contractual and cannot be retroactively amended to adversely affect
the rights of indemnified persons arising in connection with acts or
omissions occurring prior to such
amendment.
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Section
6.5 (Interested Directors; Quorum) was amended to more closely conform to
Florida law.
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The
change to the advance-notice deadline set forth in Section 1.11 of the Bylaws
will now require that, for any shareholder proposal or director nomination to be
properly presented at the 2010 Annual Meeting of Shareholders, whether or not
also submitted for inclusion in the Company’s proxy statement, the Company must
receive written notice of the matter no later than December 14, 2009 (which is
later than the previously-announced deadline of December 9,
2009). Each such written notice must contain the information set
forth in Section 1.11 of the Bylaws.
For the
inclusion of proposals in the Company’s proxy statement and form of proxy
relating to the 2010 Annual Meeting of Shareholders, under the applicable rules
of the Securities and Exchange Commission, a written copy of the proposal must
be received at the principle executive offices of the Company no later than
December 9, 2009, as previously noted in the 2009 proxy
statement. Such proposals must comply with the proxy rules relating
to shareholder proposals in order to be included in the Company’s proxy
materials.
The
foregoing summary is a brief description of the approved amendments to the
Company’s prior Bylaws and is qualified in its entirety by reference to the full
text of the Bylaws, a copy of which is attached as Exhibit 3.2 to this Current
Report on Form 8-K.
Item
8.01. Other Events.
On October 28, 2009, upon the
recommendation of the governance committee (the “Governance Committee”) of the
Board, the Board adopted amendments to the charter of the Governance Committee
of the Company. These amendments amend the charter of the Governance
Committee to adopt an independent board chairman policy and provide that the
Governance Committee will annually review the Company’s Articles of
Incorporation and Bylaws. A copy of the Company’s amended Governance
Committee Charter is attached hereto as Exhibit 99.1.
Item
9.01. Financial Statements and Exhibits.
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(d)
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Exhibits
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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.
Date: October
28, 2009
Consolidated-Tomoka
Land Co.
By: /s/William
H.
McMunn
William
H. McMunn, President and Chief Executive Officer
AMENDED
AND RESTATED ARTICLES OF INCORPORATION
OF
CONSOLIDATED-TOMOKA
LAND CO.
In
accordance with Section 607.1007 of the Florida Statutes, the articles of
incorporation of Consolidated-Tomoka Land Co., a Florida corporation, are hereby
amended and restated (the “Amended and Restated Articles of Incorporation”) to
read in their entirety as follows:
ARTICLE
I
NAME
The name
of the corporation is Consolidated-Tomoka Land Co.
ARTICLE
II
PURPOSE
The
purpose of the corporation is to engage in any lawful act or activity for which
the corporation may be organized under the Florida Business Corporation
Act.
ARTICLE
III
CAPITAL STOCK
The total
number of shares of stock of all classes that the corporation shall have the
authority to issue is 25,050,000 shares, divided into 25,000,000 shares of
common stock, par value $1.00 per share, and 50,000 shares of preferred stock,
par value of $100.00 per share. The board of directors shall have full authority
as permitted by law to adopt a resolution or resolutions issuing the preferred
stock in series and fixing such voting powers, full or limited, or no voting
powers, and such designations, preferences, and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof, of any series of the preferred stock as may be desired by the board of
directors. The board of directors may specify the number of shares in any
series.
ARTICLE
IV
SPECIAL MEETINGS OF
SHAREHOLDERS
A special
meeting of shareholders shall be held on call of the board of directors or the
person or persons authorized by the bylaws or if the holders of not less than
fifty percent (50%) of all votes entitled to be cast on any issue proposed to be
considered at the proposed special meeting sign, date and deliver to the
corporation’s secretary one or more written demands for the meeting describing
the purpose or purposes for which it is to be held.
ARTICLE
V
DIRECTORS
(a) Number: The
total number of directors constituting the board of directors of the corporation
shall be nine or such other number as may be fixed from time to time in
accordance with the bylaws. The number fixed in the bylaws may be increased or
decreased only by the affirmative vote of (i) the holders of at least 85% of the
shares of the corporation then entitled to be voted on such changes, or (ii) 2/3
of the directors then in office. No decrease in the number of directors shall
have the effect of shortening the term of any director then in office. A
director may be removed only for cause and only by the affirmative vote of 85%
of all of the shareholders of the corporation entitled to vote on the election
of directors.
(b) Classes: The
board of directors shall be divided into three classes: Class I, Class II and
Class III. The terms of office of the initial Class I and Class II directors,
and the Class III directors elected at the annual meeting of shareholders in
1994, shall expire at the times of the annual meetings of the shareholders as
follows - - - Class I in 1995, Class II in 1996 and Class III in 1997 - - - or
thereafter in each case when their respective successors are elected and
qualified. At each annual election held after 1994, the directors chosen to
succeed those whose terms are expiring shall be identified as being of the same
class as the directors whom they succeed and shall be elected for a term
expiring at the time of the third succeeding annual meeting of shareholders, or
thereafter in each case when their respective successors are elected and
qualify. The number of directorships shall be apportioned among the classes so
as to maintain the classes as nearly equal in number as possible. Any vacancy
occurring in the board of directors may be filled by majority of the directors
then in office. A new directorship resulting from an increase in the number of
directors shall be construed to be a vacancy. Any director elected to fill a
vacancy shall be of the same class and have the same remaining term as that of
the predecessor.
(c) Quorum: A
majority of the total number of directors fixed in the bylaws shall be required
to constitute a quorum at meetings of the board of directors.
(d) Appointment of
Officers: The directors shall, by a majority of the full board
of directors at any duly convened regular or special meeting of the board of
directors called for that purpose at which a quorum is present, annually appoint
officers to such offices as they so establish. The board of directors may remove
any officer, at any time, with or without cause, only by vote of the majority of
the full board of directors at any duly convened regular or special meeting of
the board of directors called for that purpose at which a quorum is
present.
ARTICLE
VI
INDEMNIFICATION
Each
person who is or was a director, officer, employee or agent of the corporation,
and each person who serves or served at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, or other enterprise, shall be indemnified by the corporation in
accordance with, and to the fullest extent authorized by, the Florida Business
Corporation Act as it may be in effect from time to time; provided, however,
that this article shall not apply to any action, suit or proceeding brought by
or in behalf of a director, officer, employee or agent without prior approval of
the board of directors.
ARTICLE
VII
BUSINESS
COMBINATIONS
In
addition to any affirmative vote required by law or by the corporation’s
Articles of Incorporation, the affirmative vote of the holders of not less than
85% of the outstanding shares of “Voting Stock” (as hereinafter defined) of the
corporation and the affirmative vote of the holders of not less than 67% of the
outstanding shares of Voting Stock held by shareholders other than a “Related
Person” (as hereinafter defined) shall be required for the approval or
authorization of any “Business Combination” (as hereinafter defined) of the
corporation with any Related Person; provided, however, that the 85% and 67%
voting requirements shall not be applicable if:
(a) the
“Continuing Directors” of the corporation (as hereinafter defined) by a 2/3 vote
(i) have expressly approved in advance the acquisition of outstanding shares of
Voting Stock of the corporation that caused the Related Person to become a
Related Person, or (ii) have approved the Business Combination prior to the
Related Person involved in the Business Combination having become a Related
Person;
(b) the
Business Combination is solely between the corporation and another corporation,
100% of the Voting Stock of which is owned directly or indirectly by the
corporation; provided, however, that the Articles of Incorporation of the
corporation surviving or continuing after the Business
Combination shall, upon and after giving effect to the Business Combination,
contain provisions substantially identical with those in Article V, VI, VII,
VIII and IX of the Articles of Incorporation; or
(c) the
Business Combination is a merger or consolidation and the cash or fair market
value of the property, securities, or other consideration to be received per
share by holders of common stock of the corporation in the Business Combination
is not less than (i) the highest per share price (with appropriate adjustments
for recapitalizations and for stock splits, stock dividends and like
distributions) (including any brokerage commissions, transfer taxes and
soliciting dealers’ fees), paid by the Related Person in acquiring any of its
holdings of the corporation’s common stock, or (ii) at the option of a majority
of the Continuing Directors, the liquidation value per share of the
corporation’s common stock on the date the Business Combination is publicly
announced as determined by an independent investment banker or other independent
person selected by a majority of the Continuing Directors.
For the
purpose of subparagraph (c) of this Article VII, the term “other consideration
to be received” shall include, without limitation, common stock of the
corporation retained by its existing public shareholders in the event of a
Business Combination in which the corporation is the surviving
corporation.
The term
“Voting Stock” shall mean all outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors, and each
reference to proportion of shares of Voting Stock shall refer to such proportion
of the votes entitled to be cast by such shares.
The term
“Business Combination” shall mean (i) any merger or consolidation of the
corporation or a subsidiary of the corporation with or into a Related Person,
(ii) any sale, lease, exchange, transfer or other disposition, including without
limitation a mortgage or any other security device, of all or any substantial
part of the assets either of the corporation (including without limitation any
voting securities of a subsidiary) or of a subsidiary of the corporation, to a
Related Person, (iii) any merger or consolidation of a Related Person with or
into the corporation or a subsidiary of the corporation, (iv) any sale, lease,
exchange, transfer or other disposition of all or any substantial part of the
assets of a Related Person to the corporation or a subsidiary of the
corporation, (v) the issuance of any securities of the corporation or a
subsidiary of the corporation to a Related Person except a pro rata issuance to
all shareholders, (vi) any recapitalization that would have the effect of
increasing the voting power of a Related Person, and (vii) any agreement,
contract or other arrangement providing for any of the transactions described in
this definition of Business Combination.
The term
“Continuing Director” means a member of the board of directors of the
corporation who either (i) was serving as a director on the date this Article
VII becomes effective, or (ii) was designated (before his or her initial
election as a director) as a Continuing Director by a majority of the then
Continuing Directors.
The term
“Related Person” means any person, or affiliate of such person, which is the
beneficial owner on the date on which a binding agreement (except for the
fulfillment of conditions precedent, including, without limitation, votes of
shareholders to approve such transaction) is entered into by the corporation, as
authorized by the board of directors, or immediately prior to the consummation
of a Business Combination, or both, of 10% or more of the Voting Stock or any
person, or affiliate of such person, who is an affiliate of the corporation and
at any time within five years preceding the date of the aforesaid agreement was
the beneficial owner of 10% or more of the then outstanding Voting Stock, but
does not include any beneficial owner of 10% or more of the Voting Stock on the
date this Article VII becomes effective. A “Related Person” also means those
persons and their affiliates who after the date on which this Article VII
becomes effective acquire control of a person that on the day this Article VII
becomes effective is the beneficial owner of 10% or more of the Voting Stock of
the corporation.
A
majority of the Continuing Directors shall have the power to determine for the
purposes of this Article, on the basis of information known to them: (i) the
number of shares of Voting Stock of which any person is the beneficial owner,
(ii) whether a person is an affiliate of another, (iii) whether the assets
subject to any Business Combination constitutes a substantial part, and (iv)
such other matters with respect to which a determination may be necessary in
order to effect the purposes of this Article.
The
corporation expressly elects not to be governed by Sections 607.0901 Affiliated
Transactions, and 607.0902 Control-Share Acquisitions, of the Florida Business
Corporation Act or any amendments thereto or successor provisions
thereto.
ARTICLE
VIII
SHAREHOLDER ACTION
No action
that requires the vote or consent of shareholders of the corporation may be
taken without a meeting held upon prior notice and a vote of shareholders,
except with the advance written consent of 2/3 of the full board of
directors.
ARTICLE
IX
SPECIAL PROVISIONS
Notwithstanding
any other provisions of these Articles of Incorporation or the bylaws of the
corporation (and notwithstanding the fact that a lesser percentage may be
specified by law, these Articles of Incorporation or the bylaws of the
corporation), the amendment or repeal of Article IV, V, VI, VII, VIII, IX or XI
of the Articles of Incorporation shall require the affirmative vote of the
holders of at least 85% of the shares then entitled to be voted on the
matter.
ARTICLE
X
LIABILITY OF
DIRECTORS
No
director shall be personally liable for monetary damages to the corporation or
any other person for any statement, vote, decision or failure to act, regarding
corporate management or policy or for breach of fiduciary duty as a director,
except for any matter in respect of which such director shall be liable under
Section 607.0831 of the Florida Business Corporation Act or any amendment
thereto or successor provision thereto or shall be liable by reason that, in
addition to any and all other requirements for such liability, he (i) shall have
breached his duty of loyalty to the corporation or its shareholders, (ii) shall
not have acted in good faith, (iii) shall have acted in a manner involving
intentional misconduct or a knowing violation of law or, in failing to act,
shall have acted in a manner involving intentional misconduct or knowing
violation of law, or (iv) shall have derived an improper personal benefit.
Neither the amendment nor repeal of this Article X, nor the adoption of any
provision of the Articles of Incorporation inconsistent with this Article X,
shall eliminate or reduce the effect of this Article X in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article X
would accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE
XI
BYLAWS
The board
of directors is authorized to make, alter or repeal the bylaws of the
corporation. Amendment, alteration or repeal of the bylaws by the board of
directors shall require the affirmative vote of 2/3 of the directors then in
office at a duly constituted meeting called expressly for that purpose, or by
the shareholders shall require the affirmative vote of 85% of the votes eligible
to be cast by the shareholders at a duly constituted meeting of shareholders
called expressly for that purpose.
Back to 8K
AMENDED
AND RESTATED BYLAWS
OF
CONSOLIDATED-TOMOKA
LAND CO.
ARTICLE
I
SHAREHOLDERS
Section
1.1. Annual
Meetings. An annual meeting of shareholders of
Consolidated-Tomoka Land Co. (the “corporation”) shall be held for the election
of directors and for the transaction of such other business as may be properly
brought before the meeting at such date, time and place, either within or
without the State of Florida, as may be designated by resolution of the board of
directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section
1.2.
Special Meetings. Special meetings of shareholders for any
purpose or purposes may be called at any time by the board of directors or by a
committee of the board of directors which has been duly designated by the board
of directors, and whose powers and authority, as expressly provided in a
resolution of the board of directors, include the power to call such
meetings.
A special
meeting of shareholders shall be called if holders of not less than 50% of all
votes entitled to be cast on any issue proposed to be considered at the proposed
special meeting sign, date and deliver to the corporation’s secretary one or
more written demands for the meeting describing the purpose or purposes for
which it is to be held. Within sixty days of receipt of such written
demand, the corporation’s secretary will issue notice calling for a special
meeting of the shareholders to be held at such time and such date as the board
of directors may determine.
Section
1.3.
Notice of Meetings. Whenever shareholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the written notice of any
meeting shall be given not less than ten nor more than sixty days before the
date of the meeting to each shareholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his address
as it appears on the stock transfer books of the corporation, with postage
thereon prepaid.
Notwithstanding
the other provisions of this Section 1.3, no notice of a meeting of shareholders
need be given to a shareholder if: (a) an annual report and proxy statement for
two consecutive annual meetings of shareholders; or (b) 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
1.4.
Adjournments. Any meeting of shareholders, annual or special,
may adjourn from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact any
business which might have been transacted at the original
meeting.
Section
1.5.
Quorum. At each meeting of shareholders, except where
otherwise provided by law, the articles of incorporation or these bylaws, the
holders of a majority of the votes entitled to be cast on a matter, present in
person or by proxy, shall constitute a quorum for action on that
matter. In the absence of a quorum, the holders of a majority of the
shares represented, and who would be entitled to vote at a meeting if a quorum
were present, may adjourn such meeting from time to time in the manner provided
in Section 1.4 of these bylaws. Once a share is represented for any
purpose at a 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 or must be set for that adjourned meeting.
Section
1.6.
Organization. Meetings of shareholders shall be presided over
by the chairman of the board, if any, or in his absence by the vice chairman of
the board, if any, or in his absence by the president, or in his absence by a
vice president, or in the absence of the foregoing persons by a chairman
designated by the board of directors, or in the absence of such designation by a
chairman chosen at the meeting. The board of directors may adopt by
resolution rules, regulations and procedures for the proper conduct of the
meeting, including, without limitation: (a) 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; (b) rules and procedures for
maintaining order at the meeting and the safety of those present; (c)
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 such chairman shall permit; (d) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (e) limitations
on the time allotted to discussion of the business of the meeting or questions
or comments by participants. Except to the extent inconsistent with
applicable law and such rules and regulations as may be adopted by the board of
directors, the chairman of each meeting 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.
The board
of directors may appoint inspectors of election to act at any meeting of
shareholders at which any vote is taken. Each inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his or her ability. The inspectors of
election shall determine the number of shares outstanding, the voting rights
with respect to each, the shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies; receive votes,
ballots, consents, and waivers; hear and determine all challenges and questions
arising in connection with the vote; count and tabulate all votes, consents, and
waivers; determine and announce the result; and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. No inspector
need be a shareholder. The inspectors may appoint and retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors. On request of the person presiding at the meeting,
the inspectors shall make a report in writing of any challenge, question or
matter determined by them and execute a certificate of any fact found by
them.
Section
1.7.
Voting; Proxies. Except as provided by law or in the articles
of incorporation, each outstanding share, regardless of class, is entitled to
one vote on each matter submitted to a vote at a meeting of
shareholders.
Unless
otherwise provided in the articles of incorporation, directors are elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. If a quorum exists, action on a
matter (other than the election of directors) is approved if the votes cast
favoring the action exceed the votes cast opposing the action, unless the
articles of incorporation or applicable law requires a greater number of
affirmative votes. The articles of incorporation require a greater
number of affirmative votes under specified circumstances as set forth
therein.
A
shareholder, other person entitled to vote on behalf of a shareholder pursuant
to applicable law, or attorney in fact for a shareholder may vote the
shareholder’s shares in person or by proxy. No proxy shall be valid
after the expiration of eleven months from the date thereof, unless a longer
period is expressly provided in the proxy. An appointment of a proxy is
revocable by the shareholder unless the appointment form or electronic
transmission conspicuously states that it is irrevocable and the appointment is
coupled with an interest.
Section
1.8. Fixing
Date for Determination of Shareholders of Record. In order
that the corporation may determine the shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the board of directors
may fix, in advance, a record date, which shall not be more than seventy days
before the date of such meeting or action requiring a determination of
shareholders. If no record date is
fixed: (a) the record date for determining shareholders
entitled to notice or to vote at a meeting of shareholders shall be at the close
of business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (b) the record date for determining
shareholders for any other purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating
thereto. 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, which it must do if the
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
Section
1.9. List
of Shareholders Entitled to Vote. After fixing a record date
for a meeting, the corporation shall prepare an alphabetical list of the names
of all of its shareholders who are entitled to notice of the shareholders’
meeting, arranged by voting group with the address of, and the number and class
and series, if any, of shares held by, each shareholder. The
shareholders’ list shall be available for inspection by any shareholder for a
period of 10 days prior to the meeting or such shorter time as exists between
the record date and the meeting and continuing through the meeting at the
corporation’s principal office, at a place identified in the meeting notice in
the city where the meeting will be held, or at the office of the corporation’s
transfer agent or registrar. A shareholder or the shareholder’s agent or
attorney is entitled on written demand to inspect the list, subject to the
requirements of applicable law, during regular business hours and at his or her
expense, during the period it is available for inspection. The
corporation shall make the shareholders’ list available at the meeting, and any
shareholder or the shareholder’s agent or attorney is entitled to inspect the
list at any time during the meeting or any adjournment. The
shareholders’ list is prima facie evidence of the identity of shareholders
entitled to examine the shareholders’ list or to vote at any meeting of
shareholders.
Section
1.10. Vote
or Consent of Shareholders. No action that requires the vote
or consent of shareholders of the corporation may be taken without a meeting
held upon prior notice and a vote of shareholders, except with the advance
written consent of two-thirds of the full board of directors. With
such consent, any action required or permitted to be taken at any annual or
special meeting of the shareholders may be taken without a meeting, without
prior notice and without a vote, if a consent in writing setting forth the
action so taken shall be signed by the holders of outstanding shares 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. Within 10 days after obtaining such authorization
by written consent, notice as prescribed by law of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those shareholders that have not consented in writing or who are not entitled
to vote on the action.
Section
1.11 Advance Notice Provisions
for Business at Meetings.
(a) At
an annual meeting of shareholders, only such nominations of persons for election
to the board of directors and other business to be considered by the
shareholders shall be conducted as shall have been properly brought before the
meeting. To be properly brought before the annual meeting, any nominations or
other business must (1) be specified in the notice of meeting (or in any
supplement) given by or at the direction of the board of directors, (2) be
otherwise properly brought before the meeting by or at the direction of the
board of directors or (3) be otherwise properly brought before the annual
meeting by any shareholder of the corporation who (A) is a shareholder of record
on both (i) the date of the giving of the notice provided for in this Section
1.11 and (ii) the record date for the determination of shareholders entitled to
vote at such annual meeting, and (B) complies with the notice procedures set
forth in this Section 1.11. Clause (3) of the immediately preceding
sentence shall be the exclusive means for a shareholder to submit such business
(other than matters properly brought under Rule 14a-8 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and included in the corporation’s
notice of meeting) before an annual meeting of shareholders.
(b) In
addition to any other applicable requirements, for any nominations or any other
business to be properly brought before an annual meeting by a shareholder
pursuant to Section 1.11(a)(3) of these bylaws, such shareholder must have given
timely notice thereof in proper written form to the secretary of the
corporation.
(1) To
be timely, a written notice of the intent of a shareholder to make a nomination
of a person for election as a director or to bring any other business before the
annual meeting shall be received by the secretary at the principal executive
offices of the corporation not earlier than the close of business on the
210th day
and not later than the close of business on the 150th day
prior to the first anniversary (the “Anniversary”) of the date of the preceding
year’s annual meeting of shareholders. However, if the date of the
annual meeting is advanced more than 30 days prior to or delayed by more than 60
days after the Anniversary, notice by the shareholder must be so received by the
secretary not earlier than the close of business on 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, if the first public announcement of the
date of such annual meeting is less than one hundred days prior to such annual
meeting, the 10th day following the day on which public announcement of the date
of such annual meeting is first made by the corporation.
(2) To
be in proper written form every such notice by a shareholder shall set forth as
to each matter such shareholder proposes to bring before the annual
meeting:
(A) as
to each person whom the shareholder proposes to nominate for election or
reelection as a director (each, a “proposed nominee”): (i) the
name, business address and residence address of the proposed nominee; (ii) the
principal occupation or employment of the proposed nominee; (iii) the class or
series and number of shares of capital stock of the corporation, if any, which
are owned beneficially and of record by the proposed nominee; (iv) any other
information regarding each proposed nominee proposed by such shareholder as
would be required to be included in a proxy statement or other filings required
to be made in connection with the solicitation of proxies for election of
directors pursuant to Section 14 of the Exchange Act, and the rules and
regulations promulgated thereunder; (v) a description of all direct and indirect
compensation and other material monetary agreements, arrangements and
understandings during the past three years, and any other material
relationships, between or among such shareholder and beneficial owner, if any,
on whose behalf the nomination is being made, and their respective affiliates
and associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand; and (vi) the written consent of
each proposed nominee to serve as a director of the corporation if so
elected;
(B) as
to any other business that the shareholder proposes to bring before the annual
meeting: (i) a description of the matter and 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 text of the proposed amendment); (ii) the reasons for
conducting such business at the annual meeting; and (iii) any material interest
in such business of such shareholder and the beneficial owner, if any, on whose
behalf the proposal is made; and
(C) as
to the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal of other business is made: (i) the name
and address of such shareholder, as they appear on the corporation’s stock
transfer books, and the name and address of such beneficial owner; (ii) the
class or series and number of shares of capital stock of the corporation which
are owned beneficially and of record by such shareholder and such beneficial
owner; (iii) the date or dates upon which such shareholder acquired ownership of
such shares; and (iv) a representation that the shareholder is a holder of
record of capital stock of the corporation, entitled to vote at such meeting,
and intends to appear in person or by proxy at the meeting to bring such
business before the meeting.
(c) If
a shareholder is entitled to vote only for a specific class or category of
directors at a meeting of the shareholders, such shareholder’s right to nominate
one or more persons for election as a director at the meeting shall be limited
to such class or category of directors.
(d) To
be eligible to be a nominee for election or reelection as a director of the
corporation, the prospective nominee, or someone acting on such prospective
nominee’s behalf, must deliver (in accordance with any applicable time periods
prescribed for delivery of notice under this Section 1.11) to the secretary at
the principal executive offices of the corporation a written questionnaire with
respect to the background and qualification of such person and the background of
any other person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the secretary upon written request and shall
include the consent of such nominee to being named as a nominee and to serving
as a director if elected). The corporation may require any proposed
nominee to furnish such other information 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 or that could be material to a
reasonable shareholder’s understanding of the independence, or lack thereof, of
such nominee.
(e) Only
such business shall be conducted at a special meeting of shareholders as shall
have been brought before the meeting pursuant to the corporation’s 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 corporation’s notice of meeting (1) by or at
the direction of the board of directors or (2) provided that the board of
directors has determined that directors shall be elected at such meeting, by any
shareholder of the corporation who (A) is a shareholder of record at the time of
giving of notice provided for in these bylaws and at the time of the special
meeting, (B) is entitled to vote at the meeting and (C) complies with the notice
procedures set forth in this Section 1.11 as to such nomination. In
the event the corporation calls a special meeting of shareholders 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 corporation’s notice of meeting, if the
shareholder’s notice required by this Section 1.11 with respect to any
nomination shall be delivered to the secretary at the principal executive
offices of the corporation not earlier than the close of business on the 120th
day prior to the date of such special meeting and not later than the close of
business on the later of the 90th day prior to the date of such special meeting
or, if the first public announcement of the date of such special meeting is less
than 100 days prior to the date of such special meeting, the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the board of directors to be elected at
such meeting.
(f) At
a meeting of shareholders, the chairman of the board shall declare out of order
and disregard any nomination or other proposal not made in compliance with the
foregoing procedures.
(g) In
no event shall the adjournment or postponement of an annual or special meeting
of the shareholders, or any announcement thereof, or the setting of a new record
date, commence a new period (or extend any time period) for the giving of notice
under this Section 1.11.
(h) As
used in these Bylaws, the terms “owned beneficially” and “beneficial owner”
means all shares which such person is deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 promulgated under the Exchange Act. For
purposes of these Bylaws, a matter shall be deemed to have been “publicly
announced” if such matter is disclosed in a press release reported by the Dow
Jones News Service, the Associated Press or a comparable national news service
or in a document publicly filed by the corporation with the Securities and
Exchange Commission.
(i) Notwithstanding
the foregoing provisions of this Section 1.11, a shareholder shall also comply
with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section
1.11; provided, however, that any references in these bylaws to the Exchange Act
or the rules and regulations promulgated thereunder are not intended to and
shall not limit the requirements applicable to nominations or proposals as to
any other business to be conducted pursuant to this Section
1.11. Nothing in this Section 1.11 shall be deemed to affect any
rights of shareholders to request inclusion of proposals in the corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange Act nor grant any
shareholders a right to have any nominee included in the corporation’s proxy
statement.
ARTICLE
II
BOARD OF
DIRECTORS
Section
2.1. Function; Number;
Qualifications. 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 total
number of directors constituting the board of directors of the corporation shall
be eleven. The number of directors may be increased or decreased only
by the affirmative vote of (a) the holders of at least 85% of the shares of the
corporation then entitled to vote on such change, or (b) two-thirds of the
directors then in office. Directors need not be
shareholders.
Section
2.2. Election; Resignation;
Removal; Vacancies. The board of directors shall be divided
into three classes: Class I, Class II and Class III. The
terms of office of the initial directors shall expire at the annual meeting of
shareholders as follows - Class I in 1995, Class II in 1996, and Class III in
1994 - or thereafter in each case when their respective successors are elected
and qualified. At each annual election held after 1994, the directors
chosen to succeed those whose terms are expiring shall be identified as being of
the same class as the directors whom they succeed, and shall be elected for a
term expiring at the time of the third succeeding annual meeting of
shareholders, or thereafter in each case when the respective successors are
elected and qualify. The number of directorships shall be apportioned
among the classes so as to maintain the classes as nearly equal in number as
possible. Any vacancy occurring in the board of directors may be
filled by a majority of the directors then in office. A new
directorship resulting from an increase in the number of directors shall be
construed to be a vacancy. Any director elected to fill a vacancy
shall be of the same class as that of the predecessor and such director’s term
will expire at the next shareholders’ meeting at which directors are
elected. No decrease in the number of directors will have the effect
of shortening the term of any directors then in office. A director
may be removed only for cause and only by the affirmative vote of 85% of all of
the shareholders of the corporation entitled to vote on the election of
directors. Any director may resign at any time upon written notice to
the corporation.
Section
2.3. Regular
Meetings. Regular meetings of the board of directors may be
held at such places within or without the State of Florida and at such times as
the board of directors may from time to time determine, and if so determined
notices thereof need not be given.
Section
2.4. Special
Meetings. Special meetings of the board of directors may be
held at any time or place within or without the State of Florida whenever called
by the president, any vice president, the secretary, or by any member of the
board of directors. Reasonable notice thereof shall be given by the
person or persons calling the meeting, not later than the second day before the
date of the special meeting.
Section
2.5. Telephonic Meetings
Permitted. Members of the board of directors, or any committee
designated by the board, may participate in a meeting of such board or committee
by means of conference telephone or any means of communication by which all
persons participating in the meeting may simultaneously hear each other during
the meeting, and participation in a meeting pursuant to this bylaw shall
constitute presence in person at such meeting.
Section
2.6. Quorum, Vote Required for
Action . At all meetings of the board of directors a majority
of the whole board shall constitute a quorum for the transaction of
business. Except in cases in which the articles of incorporation or
these bylaws otherwise provide, the vote of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the board of
directors.
Section
2.7. Organization. Meetings
of the board of directors shall be presided over by the chairman of the board,
if any, or in his absence by the vice chairman of the board, if any, or in his
absence by the president, or in their absence by a chairman chosen at the
meeting. The secretary shall act as secretary of the
meeting.
Section
2.8. Action
by Directors Without a Meeting. Unless the articles of
incorporation or these bylaws provide otherwise, any action required or
permitted to be taken at any meeting of the board of directors, or of any
committee thereof, may be taken without a meeting if the action is taken by all
members of the board or committee. Such action shall be evidenced by
one or more written consents filed with the minutes or proceedings of the board
or committee, describing the action taken and signed by each director of
committee member.
Section
2.9. Mandatory
Retirement of Directors. A director of the Company shall retire
from the board of directors at the first annual meeting of shareholders held
after the director attains age 75.
ARTICLE
III
COMMITTEES
Section
3.1. Committees. The
board of directors may, by resolution adopted by a majority of the full board of
directors, designate one or more committees, each committee to consist of two or
more of the directors of the corporation who shall serve at the pleasure of the
board. The board, by resolution, 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. Any
such committee, to the extent provided in the resolution of the board of
directors, shall have and may exercise all the powers and authority of the board
of directors in the management of the business and affairs of the corporation,
except that no such committee shall have the power or authority
to: (a) approve or recommend to shareholders actions or proposals
required by the Florida Business Corporation Act to be approved by the
shareholders; (b) fill vacancies on the board of directors or any committee
thereof; (c) adopt, amend or repeal the bylaws; (d) authorize or
approve 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 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.
Section
3.2. Committee Charter and
Rules. 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 of the board of directors, including notice and waiver of notice
thereof, shall apply to any such committee and its members.
ARTICLE
IV
OFFICERS
Section
4.1. Executive Officers;
Election; Qualification; Term of Office; Resignation; Removal;
Vacancies. The board of directors shall choose a president and
secretary, and it may, if it so determines, choose a chairman of the board and a
vice chairman of the board from among its members. The board of
directors may also choose one or more vice presidents, one or more assistant
secretaries, a treasurer and one or more assistant treasurers. Each
such officer shall hold office until the first meeting of the board of directors
after the annual meeting of shareholders next succeeding his election, and until
his successor is elected and qualified or until his earlier resignation or
removal. The board of directors shall designate from among the
officers it elects those who shall be the executive officers of the corporation
responsible for all policy making functions, under the direction of the board of
directors. Any officer may resign at any time upon written notice to the
corporation. The board of directors may remove any officer with or
without cause at anytime, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any
number of offices may be held by the same person. Any vacancy
occurring in any office of the corporation by death, resignation, removal or
otherwise may be filled for the unexpired portion of the term by the board of
directors at any regular or special meeting.
Section
4.2 Powers
and Duties of Executive Officers. The officers of the
corporation shall have such powers and duties in the management of the
corporation as may be prescribed by the board of directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the board of directors. Unless the board of directors
delegates responsibility to another officer, the secretary shall have
responsibility for preparing minutes of the directors’ and shareholders’
meetings and for authenticating records of the corporation. The board
of directors may require any officer, agent or employee to give security for the
faithful performance of his duties.
ARTICLE
V
SHARES
Section
5.1 Certificates. Shares
may but need not be represented by certificates. The rights and
obligations of shareholders shall be identical whether or not their shares are
represented by certificates. If shares are represented by
certificates, each certificate shall be signed by or in the name of the
corporation by the chairman or vice chairman of the board of directors, if any,
or the president or a vice president, and by the treasurer or an assistant
treasurer, or the secretary or an assistant secretary of the corporation,
certifying the number of shares owned by such shareholder in the
corporation. Any or all of the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of
issue.
Section
5.2. Lost,
Stolen or Destroyed Share Certificates; Issuance of New
Certificates. The corporation may issue a new share
certificate in the place of any certificate theretofore issued by it, alleged to
have been lost, stolen or destroyed, and the corporation may require the owner
of the lost, stolen or destroyed certificate, or his legal representative, to
(a) give the corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate and (b) satisfy
any other reasonable requirements imposed by the corporation.
ARTICLE
VI
MISCELLANEOUS
Section
6.1. Fiscal
Year. The fiscal year of the corporation shall be determined
by resolution of the board of directors.
Section
6.2. Seal. The
corporate seal shall have the name of the corporation inscribed thereon and
shall be in such form as may be approved from time to time by the board of
directors.
Section
6.3. Waiver of
Notice of Meetings of Shareholders, Directors and
Committees. Any written waiver of notice, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted
at, nor the purpose of any regular or special meeting of the shareholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice.
Section
6.4 Indemnification of
Directors, Officers, Employees, and Agents.
(a) The
corporation shall indemnify to the full extent authorized by law any person made
or threatened to be made a party to any threatened, pending, or completed
action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal (a
“proceeding”), by reason of the fact that he is or was a director, officer or
employee or agent of the corporation or any predecessor of the corporation or
serves or served any other corporation, partnership, joint venture, trust, or
other enterprise as a director, officer, employee, or agent at the request of
the corporation or any predecessor of the corporation (an “indemnified person”);
provided, however, that this section shall not apply as to any proceeding
brought by or on behalf of an indemnified person without prior approval of the
board of directors.
(b) To
the fullest extent permitted or authorized by law, the corporation shall advance
all expenses incurred by any officer or director who is an indemnified person in
defending a proceeding within sixty days after the receipt by the 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 director or officer 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 so advanced in the event that it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation as authorized in this Section 6.4. Expenses incurred
by employees and agents may be paid in advance upon such terms or conditions
that the board of directors deems appropriate.
(c) Indemnification
and advancement of expenses as provided in this Section 6.4 shall continue as,
unless otherwise provided when authorized or ratified, to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors, administrators and estate of such person, unless otherwise provided
when authorized or ratified. The rights of any person set forth in this Section
6.4 to indemnification and advancement of expenses are contractual rights and
vest at the time a person becomes a director or officer of the corporation and
no amendment to these indemnification provisions and advancement of expenses
provisions shall affect any right in respect of acts or omissions of any
director or officer occurring prior to such amendment. Any repeal of relevant
provisions of the Florida Business Corporation Act or any other applicable law
shall not in any way diminish any rights to indemnification of such indemnified
persons, or the obligations of the corporation arising hereunder, for claims
relating to matters occurring prior to such repeal or modification.
Section
6.5. Interested Directors;
Quorum. 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 its directors are directors or
officers, or are financially interested, shall be either void or voidable
because of such relationship or interest, or because such director or directors
are present at the meeting of the board of directors or committee thereof which
authorizes, approves or ratifies such contract or transaction, or because his 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 which authorizes, approves, or ratifies the contract or transaction by
a vote or consent sufficient for the purpose without counting the votes or
consents of such interested directors; (b) the fact of such relationship or
interest is disclosed or known to the shareholders entitled to vote and they
authorize, approve, or ratify such contract or transaction by vote or written
consent; or (c) the contract or transaction is fair and reasonable as to
the corporation at the time it is authorized by the board, a committee, or the
shareholders. For purposes of Section 6.5(a) only, 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 but a transaction may not be authorized, approved, or ratified under this
section by a single director. If a majority of the directors who have
no such relationship or interest in the transaction vote to authorize, approve
or ratify the transaction, a quorum is present for the purpose of taking action
under this section. 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 Section 6.5(a) if the transaction is
otherwise authorized, approved, or ratified as provided in Section 6.5(a), but
such presence or vote of those directors may be counted for purposes of
determining whether the transaction is approved under other sections of the
Florida Business Corporation Act.
Section
6.6. Form
of Records. Any records maintained by the corporation in the
regular course of its business, including its stock ledger, books of
account and any minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The corporation shall so convert any
records so kept upon the request of any person entitled to inspect the
same.
Section
6.7. Amendment of
Bylaws. Amendment, alteration or repeal of the Bylaws by the
board of directors shall require that affirmative vote of two-thirds of the
directors then in office at a duly constituted meeting called expressly for that
purpose, or by the shareholders shall require the affirmative vote of 85% of the
votes eligible to be cast by the shareholders at a duly constituted meeting of
shareholders called expressly for that purpose.
As
amended and restated October 28, 2009.
Back to 8-K
CONSOLIDATED-TOMOKA
LAND CO.
GOVERNANCE
COMMITTEE CHARTER
Role
and Purpose
The
purpose of the governance committee (the “Committee”) of the board of directors
of Consolidated-Tomoka Land Co. (the “Company”) is to recommend to the board of
directors (1) individuals qualified to become members of the board of directors
(based on criteria approved by the Committee) and the director nominees for the
next annual meeting of the shareholders of the Company or at any such time that
there is a vacancy on the board, and (2) recommend to the Board the corporate
governance guidelines appropriate for the Company.
Composition
The
Committee shall consist of at least three directors, each of whom shall satisfy
the independence requirements of the NYSE Amex. Members of the
Committee shall be elected annually by the full board and each member shall hold
office until the earlier of (1) the election of that member’s successor, (2) the
end of that member’s service as a director of the Company (whether through
resignation, removal, expiration of term, or death), or (3) that member’s
resignation from the Committee. The chairperson of the Committee may
be selected by the board of directors or, if it does not do so, the Committee
members may elect a chairperson by vote of a majority of the full Committee. The
Committee may form and delegate authority to subcommittees when
appropriate.
Director
Nominee Criteria
Individuals
should meet the following specific minimum qualifications to be considered for
board membership:
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Independence - A
majority of the directors should be independent, as defined from time to
time by the NYSE Amex listing
standards.
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Integrity and
Accountability - Directors must demonstrate high ethical standards
and integrity and be accountable for their board decisions and
actions.
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Judgment - Directors
should be able to provide thoughtful counsel on a broad range of
issues.
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Financial Literacy -
All board members should have financial literacy sufficient to monitor the
Company’s financial performance.
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Openness - Board
members should be willing to listen and be open to the consideration of
other opinions, as well as the ability to communicate their own
ideas.
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Performance Standards -
Directors should be committed to Company achievement of exceptional
performance standards to benefit customers, shareholders, employees, and
its communities.
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Time Commitment -
Directors must have the willingness and ability to commit sufficient time
and attention to the activities of the
Company.
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In
addition to the specific minimum qualifications listed above, the Committee will
consider a range of desirable core competencies as beneficial to the
board. The board as a whole should possess the following specific
qualities or skills:
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Accounting and Finance
- The board should include directors with expertise in management or
oversight of financial accounting and
control.
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Business Judgment -
Directors should have a record of making sound business
decisions.
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Management Knowledge -
Board members should be cognizant of current general management trends and
“best practices.”
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·
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Industry Knowledge - It
is desirable for directors to have relevant knowledge and experience
specific to one or more of the following real estate areas: land planning,
land use entitlements, sales, leasing, management, or development of real
estate in Florida or other directly related areas, including construction,
real estate law, real estate finance, or real estate
accounting.
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·
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Leadership - The board
should include directors who can and will motivate and require
high-performance by management.
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Strategy and Vision -
Directors should be capable of questioning, approving, and monitoring the
Company’s strategic plans, providing insight and directional
focus.
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·
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Local Knowledge – It is
desirable that a majority of directors live or work in Florida, and have
developed both local and state business, political, and governmental
contacts that would be beneficial to the
Company.
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·
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Public Company
Experience – It is desirable for some of the directors to have
served on the board of other public companies or advisory boards to public
companies.
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Chairman
of the Board Criteria
It is the
policy of the Company that the chairman of the board shall be a director who is
independent from the Company. For the purposes of this policy,
“independent” has the meaning set forth in the Listing Standards of the NYSE
Amex. The chairman of the board will be appointed by the
non-management directors of the board annually. If the board
determines that a chairman who was independent at the time of selection is no
longer independent, or in the event of the chairman’s incapacity, the board will
select a new chairman who satisfies the requirements of this policy within 60
days of such determination. Compliance with this policy will be
excused if no director who qualifies as independent is elected by the
shareholders or if no director who is independent is willing to serve as
chairman.
Duties
and Responsibilities
The
Committee’s duties and responsibilities shall be to:
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·
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Review
and update, from time to time, the criteria set forth in this charter for
the board of directors and its
members.
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·
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Review
and report on possible candidates for membership on the board of directors
consistent with the Committee’s criteria for selecting new directors and
establish a process for identifying and evaluating such
nominees.
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Establish
a policy as to whether the Committee will consider recommendations of
director nominees by shareholders and, if it will consider such
recommendations, establish procedures for shareholders to submit
recommendations.
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Annually
recommend a slate of nominees to the board of directors with respect to
nominations for the board at the annual meeting of
shareholders.
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Review
compliance, including conflicts of interest and codes of ethics, and
recommend changes as necessary.
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Report
to the board of directors, by means of written or oral reports, submission
of minutes of Committee meetings or otherwise, from time to time or
whenever it shall be called upon to do
so.
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Review
the Articles of Incorporation and bylaws of the Company annually and
recommend changes as
necessary.
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·
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Review
this charter annually for possible
revision.
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Process
for Selecting Directors
The
Committee will evaluate all director candidates brought to its attention by all
sources in accordance with the minimum and specific criteria described in this
charter.
Resources
The
Committee shall have the authority to obtain advice and seek assistance from
outside legal, accounting or other advisors, including search firms, as it
determines necessary to carry out its duties. The Committee shall
have sole authority to retain and terminate any search firm to be used to
identify director candidates and to retain and terminate any compensation
consultant used to assist establishing director compensation, including sole
authority to approve such search firm’s fees and other retention
terms.
Interpretations
and Determinations
The
Committee shall have the power and authority to interpret this Charter and make
any determinations as to whether any act taken has been taken in compliance with
the terms hereof.
Dated:
February 13, 2004
Amended:
April 23, 2008
Amended:
October 28, 2009