Attached files
| file | filename |
|---|---|
| S-1/A - Aevi Genomic Medicine, Inc. | v212051_s1a.htm |
| EX-4.5 - Aevi Genomic Medicine, Inc. | v212051_ex4-5.htm |
| EX-4.4 - Aevi Genomic Medicine, Inc. | v212051_ex4-4.htm |
| EX-4.1 - Aevi Genomic Medicine, Inc. | v212051_ex4-1.htm |
| EX-1.1 - Aevi Genomic Medicine, Inc. | v212051_ex1-1.htm |
| EX-23.1 - Aevi Genomic Medicine, Inc. | v212051_ex23-1.htm |
Exhibit 3.3
Amended
and Restated By-Laws of Medgenics, Inc.
Incorporated
under the Laws of the State of Delaware
Adopted
as of 2 December 2007
Amended
as of December 2, 2008
BY-LAWS
OF
MEDGENICS,
INC.
(a
Delaware Corporation)
ARTICLE I: OFFICES
|
Section
1.
|
Registered
Office. The registered office of the Corporation in the state of Delaware
shall be located at 1013 Centre Road, New Castle County, in the City of
Wilmington, New Castle County, Delaware
19801.
|
|
Section
2.
|
Other
Offices. The Corporation may establish or discontinue, from time to time,
such other offices within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the
Corporation may require.
|
ARTICLE II: MEETINGS OF
STOCKHOLDERS
|
Section
1.
|
Place
of Meetings. Meetings of stockholders shall be held at such place or
places, within or without the State of Delaware and at such time and date,
as may from time to time be fixed by the Board of Directors, or as shall
be specified in the respective notices or waivers of notice
thereof.
|
|
Section
2.
|
Annual
Meeting. Annual meetings of stockholders for the election of Directors and
the transaction of other business shall be held on such date, at such time
and at such place as may be designated by the Board of Directors. At each
annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before
the meeting.
|
|
Section
3.
|
Special
Meetings. At any time in the interval between annual meetings, special
meetings of the stockholders, or of any class thereof entitled to vote,
for any purpose or purposes, unless otherwise prescribed by statute or by
the Amended and Restated Certificate of Incorporation, as the same may be
amended from time to time (the “Certificate of Incorporation”), may be
called at any time by the Chairman of the Board, if any, or the President
or by order of the Board of Directors and shall be called by the President
or Secretary upon the written request of stockholders holding of record at
least 10% of the outstanding shares of stock of the Corporation entitled
to vote at such meeting. Such written request shall state the purpose or
purposes for which such meeting is to be
called.
|
|
Section
4.
|
Notice
of Meetings. Except as otherwise provided by law, written notice of each
meeting of stockholders, whether annual or special, stating the place,
date and hour of the meeting shall be given not less than ten days or more
than sixty days before the date on which the meeting is to be held to each
stockholder of record entitled to vote thereat by delivering a notice
thereof to him or her personally or by mailing such notice in a postage
prepaid envelope directed to him or her at his or her address as it
appears on the records of the Corporation, unless he or she shall have
filed with the Secretary of the Corporation a written request that notices
intended for him or her be directed to another address, in which case such
notice shall be directed to him or her at the address designated in such
request. Notice shall not be required to be given to any stockholder who
shall waive such notice in writing, whether prior to or after such
meeting, or who shall attend such meeting in person or by proxy unless
such attendance is for the express purpose of objecting, at the beginning
of such meeting, to the transaction of any business because the meeting is
not lawfully called or convened. Every notice of a special meeting of the
stockholders, besides the time and place of the meeting, shall state
briefly the objects or purposes
thereof.
|
|
Section
5.
|
List
of Stockholders. It shall be the duty of the Secretary or other officer of
the Corporation who shall have charge of the stock ledger to prepare and
make, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of. each stockholder and the
number of shares registered in his or her name. Such list shall be open to
the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours. For a period of at least ten 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 kept and produced at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who
may be present. The original or duplicate ledger shall be the only
evidence as to who are the stockholders entitled to examine such list or
the books of the Corporation or to vote in person or by proxy at such
meeting.
|
|
Section
6.
|
Quorum.
At any meeting of the stockholders, the holders of record of at least one
third of the votes represented by the issued and outstanding stock of the
Corporation entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum for the transaction of
business, except as otherwise provided by law, the Certificate of
Incorporation or these By-laws. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, either the
Chairman of the meeting or the holders of a majority of the votes
represented by the issued and outstanding stock of the Corporation
entitled to vote thereat and present in person or represented by proxy
shall have the power to adjourn the meeting from time to time, without
notice other than announcement of such meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have
been transacted at the meeting as originally notified. If the adjournment
is for more than thirty days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting.
|
2
|
Section
7.
|
Voting.
|
|
|
(a)
|
Except
as otherwise provided in the laws of the State of Delaware, the
Certificate of Incorporation and Section 7(f) of this Article II, every
stockholder of record who is entitled to vote shall at every meeting of
the stockholders be entitled to one vote for each share of stock held by
him or her on the record date. A majority of the votes cast at a meeting
of stockholders, duly called and at which a quorum is present, shall be
sufficient to take or authorize action upon any matter which may properly
come before the meeting, unless a different vote is required by the
express provisions of law, of the Certificate of Incorporation, or of
these By-laws, in which case such express provision shall govern and
control the decision of such matter. Unless demanded by a stockholder of
the Corporation present in person or by proxy at any meeting of the
stockholders and entitled to vote thereat or so directed by the chairman
of the meeting or required by law, the vote thereat on any question need
not be by written ballot. On a vote by written ballot, each ballot shall
be signed by the stockholder voting, or in his or her name by his or her
proxy, if there be such proxy, and shall state the number of shares voted
by him or her and the number of votes to which each share is
entitled.
|
|
|
(b)
|
Shares
standing in the name of another corporation may be voted by such
officer, agent or proxy as the by-laws of such corporation may prescribe,
or, in the absence of such provision, as the Board of Directors of such
other corporation may determine.
|
|
|
(c)
|
Shares
standing in the name of a deceased person, a minor ward or an incompetent
person, may be voted by an administrator, executor, court appointed
guardian or conservator, either in person or by proxy without a transfer
of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares standing in the name of a
trustee may be voted by him or her, either in person or by proxy, but no
trustee shall be entitled to vote shares held by him or her or her without
a transfer of such shares into his or her
name.
|
|
|
(d)
|
Shares
standing in the name of a receiver may be voted by such receiver and
shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into the trustee name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
|
|
|
(e)
|
A
shareholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so
transferred.
|
|
|
(f)
|
Neither
shares of its own stock belonging to this Corporation, nor shares of its
own stock held by it in a fiduciary capacity, nor shares of its own stock
held by another corporation if the majority of shares entitled to vote for
the election of Directors of such Corporation is held by this Corporation
may be voted, directly or indirectly, at any meeting and shall not be
counted in determining the total number of outstanding shares at any given
time.
|
3
|
|
(g)
|
Redeemable
shares which have been called for redemption shall not be entitled to vote
on any matter and shall not be deemed outstanding shares on and after the
date on which written notice of redemption has been mailed to shareholders
and a sum sufficient to redeem such shares has been deposited with a bank
or trust company with irrevocable instruction and authority to pay the
redemption price to the holders of the shares upon surrender of
certificates therefor.
|
|
|
(h)
|
If
shares or other securities having voting power stand of record in the
name(s) of two or more persons, unless the Secretary is given written
notice to the contrary, the vote of the senior who tenders a vote, whether
in person or by proxy, shall be accepted to the exclusion of the vote(s)
of the other joint stockholders and, for this purpose, seniority shall be
determined by the order in which the names stand of record in the stock
ledger of the Corporation in respect of the joint
holding.
|
|
Section
8.
|
Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to
express consent to corporate action in writing without a meeting may
authorize another person or persons to act for him or her by proxy. A
proxy acting for any stockholder shall be duly appointed by an instrument
in writing subscribed by such stockholder. No proxy shall be valid after
the expiration of three years from the date thereof unless the proxy
provides for a longer period.
|
|
Section
9.
|
Action
Without a Meeting. Any action required to be taken at any annual or
special meeting of stockholders or any action which may be taken at any
annual or special meeting of stockholders 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
stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of
the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have
not consented in writing.
|
|
Section
10.
|
Organization.
|
|
|
(a)
|
At
every meeting of stockholders, the Chairman of the Board of Directors, or,
if a Chairman has not been appointed or is absent, the President, or, if
the President is absent, a chairman of the meeting chosen by a majority of
the voting power of the stockholders entitled to vote, present in person
or by proxy, shall act as chairman. The Secretary, or, in his or her
absence, an Assistant Secretary directed to do so by the President, shall
act as secretary of the meeting.
|
|
|
(b)
|
The
Board of Directors of the Corporation shall be entitled to make such rules
or regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board of Directors, if any, the chairman of the meeting
shall have the right and authority to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct
of the meeting, including, without limitation, establishing an agenda or
order of business for the meeting, rules and procedures for maintaining
order at the meeting and the safety of those present, limitations on
participation in such meeting to stockholders of record of the Corporation
and their duly authorized and constituted proxies and such other persons
as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time
allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be
voted on by ballot, if any. Unless and to the extent determined by the
Board of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with rules of
parliamentary procedure.
|
4
ARTICLE III: BOARD OF
DIRECTORS
|
Section
1.
|
Powers.
The business and affairs of the Corporation shall be managed under the
direction of the Board of
Directors.
|
|
Section
2.
|
Election,
Term and Qualifications. Except as otherwise provided by law, Directors
shall be elected at the annual meeting of stockholders by the holders of
the majority of the shares present and voting at such meeting, and shall
hold office until the next annual meeting of stockholders and until their
successors are elected and qualify, or until they sooner die, resign or
are removed.
|
|
Section
3.
|
Number.
The number of Directors shall be no less than two and no more than such
number (if any) as shall be determined from time to time by the Board of
Directors.
|
|
Section
4.
|
Quorum
and Manner of Acting. Unless otherwise provided by law, the presence of a
majority of the Directors then in office shall constitute a quorum for the
transaction of business and the act of majority of the Directors present
at any meeting at which a quorum is present shall be the act of the Board
of Directors, except as may be otherwise specifically provided by statute
or by the Certificate of Incorporation. In the absence of a quorum, a
majority of the Directors present may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a
quorum shall be present. The Board of Directors may hold meetings, both
regular and special, at such place or places within or without the State
of Delaware as the Board of Directors may from time to time determine or
as shall be specified in the respective notices, or waivers of notice,
thereof.
|
|
Section
5.
|
Organization
Meeting. The first meeting of each newly elected Board of Directors may be
held immediately after each annual meeting of stockholders for the
election of Directors. The Board of Directors may meet at the place of the
annual meeting of stockholders for the purpose of organization, the
election of officers and the transaction of other business. Notice of such
meeting need not be given. If such meeting is held at any other time or
place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver
of the notice thereof signed by, or the attendance at such meeting of, all
Directors who may not have received such
notice.
|
5
|
Section
6.
|
Regular
Meetings. Regular meetings of the Board of Directors may be held without
notice at such time and place, within or without the State of Delaware, as
shall from time to time be determined by the Board of
Directors.
|
|
Section
7.
|
Special
Meetings; Notice. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board, if any, the President, on
the written request of any Director, or by the Secretary. Notice of each
such meeting shall be mailed to each Director, addressed to him or her at
his or her residence or usual place of business, at least three days
before the date on which the meeting is to be held, or shall be sent to
him or her at such place by telegram, telex, telecopy or electronic means
(e.g. email) or be delivered personally or by telephone, not later than
the day before the day on which such meeting is to be held. Each such
notice shall state the time and place of the meeting and, as may be
required, the purposes thereof. Notice of any meeting of the Board of
Directors need not be given to any Director if he or she shall sign a
written waiver thereof either before or after the time stated therein for
such meeting, or if he or she shall be present at the meeting. Unless
limited by law, the Certificate of Incorporation, these By-laws or the
terms of the notice thereof, any and all business may be transacted at any
meeting without the notice thereof having specifically identified the
matters to be acted upon.
|
|
Section
8.
|
Removal
of Directors. Any Director or the entire Board of Directors may be
removed, with or without cause, at any time, by action of the holders of
record of the majority of votes represented by the issued and outstanding
stock of the Corporation entitled to vote for the election of such
Director(s) present in person or represented by proxy at a meeting of
holders of such stock and entitled to vote
thereon.
|
|
Section
9.
|
Resignations.
Any Director of the Corporation may resign at any time by giving written
notice to the Chairman of the Board, if any, the President, a Vice
President, if any, or the Secretary of the Corporation. The resignation of
any Director shall take effect upon receipt of notice thereof or at such
later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
|
|
Section
10.
|
Vacancies.
Except as otherwise provided in the laws of the State of Delaware or the
Certificate of Incorporation, any newly created directorships and
vacancies occurring in the Board by reason of death, resignation,
retirement, disqualification, increase in the number of Directors or
removal with or without cause, may be filled by the action of a majority
of the Directors, then in office. The Director so chosen, whether selected
to fill a vacancy or elected to a new directorship, shall hold office
until the next meeting of stockholders at which the election of Directors
is in the regular order of business, and until his or her successor has
been elected and qualifies, or until he or she sooner dies, resigns or is
removed.
|
|
Section
11.
|
Compensation
of Directors. The Directors may be paid their expenses of attendance at
each meeting of the Board of Directors and may be paid a fee for
attendance at each meeting of the Board or a stated fee as a Director as
determined by the Board of Directors. No such payment shall preclude any
Director from serving the Corporation or any parent or subsidiary
corporation thereof in any other capacity and receiving compensation
therefor.
|
6
|
Section
12.
|
Action
Without a Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or any committee thereof may be taken
without a meeting if a written consent thereto is signed by all members of
the Board or of such committee, as the case may be, and such written
consent is filed with the minutes or proceedings of the Board or
committee.
|
|
Section
13.
|
Telephonic
Participation in Meetings. Members of the Board of Directors or any
committee thereof may participate in a meeting of the Board or such
committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in
person at such meeting.
|
|
Section
14.
|
Executive
Committee. The Board of Directors may select an executive committee from
among its members. In all cases in which specific directions shall not
have been given by the Board of Directors, the executive committee shall
have and may exercise all of the powers and authority of the Board of
Directors, so far as may be permitted by law, in the management of the
business and affairs of the Corporation whenever the Board of Directors is
not in session. The fact that the executive committee has acted shall be
conclusive evidence that the Board of Directors was not in session at the
time of such action and had not theretofore given specific directions with
respect to the matters concerning which the executive committee took
action, unless actual notice to the contrary shall have been given. The
Board of Directors may delegate to the executive committee any or all of
the powers of the Board of Directors, so far as may be permitted by law,
in the management of the business and affairs of the Corporation and may
from time to time extend, so far as may be permitted by law, modify,
curtail or restrict the powers so
delegated.
|
|
Section
15.
|
Manner
of Acting by Executive Committee. The executive committee may meet at
stated times or on notice given personally to all by any one of their own
number. The executive committee may fix its own rules or procedures and
meet at such times and at such place or places as may be provided by such
rules or by resolution of the executive committee or of the Board of
Directors. At every meeting of the executive committee the presence of a
majority of all the members shall be necessary to constitute a quorum and
the affirmative vote of a majority of all the members present shall be
necessary for the adoption by it of any
resolution.
|
|
Section
16.
|
Other
Committees.
|
|
|
(a)
|
The
Board of Directors may, by resolution or resolutions passed by a majority
of the whole Board, designate one or more other committees which, to the
extent provided in said resolution or resolutions, shall have and may
exercise all the powers and authority of the Board of Directors, so far as
may be permitted by law, in the management of the business and affairs of
the Corporation. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
Board of Directors. In the absence or disqualification of any member of
any committee of the Board, the members thereof present at any meeting and
not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint a member of the Board of Directors to act in the place
of such absent or disqualified
member.
|
7
|
|
(b)
|
The
Corporation shall initially have the following committees which shall be
comprised solely of two or more non-executive
Directors:
|
- an
audit committee;
- a
remuneration and nominations committee.
Such
committees shall be constituted and have the powers and authorities as may be
specified from time to time in a resolution or resolutions duly adopted by the
Board of Directors which shall operate as each such committee’s written charter
if a written charter is not otherwise duly adopted by the Board of
Directors.
The
provisions of Sections 4, 6, 7, 12, 13 and 17 of this Article
III shall apply to committees all in the same way as the same apply to meetings
of the Board of Directors.
|
Section1
7
|
Presumption
of assent
|
A
Director of the Corporation who is present at a meeting of the Board of
Directors or at any committee thereof at which action on any matter is taken
within the terms of reference of such meeting shall be presumed to have assented
to the action taken unless his or her dissent shall be entered in the minutes of
a meeting or unless he or she shall have filed his or her written dissent from
such action with the person acting as the secretary of the meeting before the
adjournment or conclusion thereof or shall forward such dissent by registered
mail to the secretary of the Corporation immediately after the adjournment or
conclusion of the meeting. Such right of dissent shall not apply to a
Director who voted in favour of the relevant action. Subject to the
applicable laws of the state of Delaware or the Certificate of Incorporation, in
the case of an equality of votes on any matter at any meeting of the Board of
Directors or of any duly constituted committee thereof, the vote of the chairman
of the board shall be controlling for the purposes of resolving such deadlock
and shall have the effect of determining whether the proposal is approved or
not.
ARTICLE IV:
OFFICERS
|
Section
1.
|
Principal
Officers. The Board of Directors shall elect a President, a Secretary and
a Treasurer, and may in addition elect a Chairman of the Board, one or
more Vice Presidents and such other officers as it deems fit; the
President, the Secretary, the Treasurer, the Chairman of the Board, if
any, and the Vice Presidents, if any, being the principal officers of the
Corporation. One person may hold, and perform the duties of, any two or
more of said offices.
|
|
Section
2.
|
Election
and Term of Office. The principal officers of the Corporation shall be
elected annually by the Board of Directors at the first meeting after each
annual meeting of the stockholders. Each such officer shall hold office
until his or her successor shall have been elected and shall qualify, or
until his or her earlier death, resignation or
removal.
|
|
Section
3.
|
Other
Officers. In addition, the Board may elect, or the Chairman of the Board,
if any, or the President may appoint, such other officers as they deem
fit. Any such other officers chosen by the Board of Directors shall be
subordinate officers and shall hold office for such period, have such
authority and perform such duties as the Board of Directors, the Chairman
of the Board, if any, or the President may from time to time
determine.
|
8
|
Section
4.
|
Removal.
Any officer elected or appointed by the Board of Directors may be removed,
either with or without cause, by the affirmative vote of a majority of the
whole Board of Directors. Any such removal shall not modify any
contractual rights or obligations of the Corporation or such officer that
may exist between the Corporation and such
officer.
|
|
Section
5.
|
Resignations.
Any officer may resign at any time by giving written notice to the
Chairman of the Board, if any, the President, the Secretary or the Board
of Directors. Any such resignation shall take effect upon receipt of such
notice or at any later time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
|
|
Section
6.
|
Vacancies.
Any vacancy in any office may be filled for the unexpired portion of the
term in the manner prescribed in these By-laws for election or appointment
to such office for such term.
|
|
Section
7.
|
Chairman
of the Board. The Chairman of the Board of Directors, if one be elected,
shall preside, if present, at all meetings of stockholders and of the
Board of Directors and he or she shall have and perform such other duties
as from time to time may be assigned to him or her by the Board of
Directors. If there is no President, then the Chairman of the
Board of Directors shall also serve as the chief executive officer of the
Corporation and shall have the powers and duty prescribed in Section 8 of
this Article IV.
|
|
Section
8.
|
President.
The President shall be the chief executive officer of the Corporation and,
subject to the control of the Board of Directors, shall have the general
powers and duties of supervision and management usually vested in the
office of president of a corporation. In the absence or
non-election of the Chairman of the Board of Directors, he or she shall
preside at meetings of the stockholders and at all meetings of the Board
of Directors (if present respectively thereat), and shall have general
supervision, direction and control of the business of the Corporation.
Except as the Board of Directors shall authorize the execution thereof in
some other manner, he or she shall execute bonds, mortgages, and other
contracts on behalf of the Corporation. The President shall cause the seal
to be affixed to any instrument requiring it and when so affixed the seal
shall be attested by the signature of the Secretary, any Assistant
Secretary or the Treasurer. The President shall have such other rights,
duties and powers as from time to time shall be assigned to him or her by
the Board of Directors.
|
|
Section
9.
|
Vice
President. The Vice President (or if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors) shall,
in the absence or disability of the President, perform the duties and
exercise the powers of the President, and shall have such other powers and
shall perform such other duties as from time to time shall be assigned to
him or her by the Board of
Directors.
|
9
|
Section
10.
|
Treasurer.
Except as the Board of Directors may otherwise determine, the Treasurer
shall have charge and custody of, and be responsible for, all funds and
securities of the Corporation and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit or cause to be deposited all moneys and
other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Corporation in accordance with
the annual budget for the Corporation approved by the Board of Directors
or as otherwise may be approved by the Board of
Directors, taking proper vouchers for such disbursements, and
shall render to the President and the Board of Directors, when the Board
of Directors so requires, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation; in general,
he or she shall perform all the duties incident to the office of Treasurer
and shall have such other rights, duties and powers as from time to time
may be assigned to him or her by the Board of Directors or the President.
If required by the Board of Directors, the Treasurer shall give the
Corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the Board for
the faithful performance of the duties of his or her office and for the
restoration to the Corporation, in case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his or her possession or under his
or her control belonging to the
Corporation
|
|
|
The
Assistant Treasurer (or if there shall be more than one, the Assistant
Treasurers in the order determined by the Board of Directors), if any,
shall, in the absence or disability of the Treasurer, perform the duties
and exercise the powers of the Treasurer, and shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
|
|
Section
11.
|
Secretary.
Except as the Board of Directors may otherwise determine, the Secretary
shall attend all meetings of the Board of Directors and of the
stockholders and record all the proceedings of’ the meetings of the
stockholders and of the Board of Directors in a book or books to be kept
for that purpose and shall perform like duties for the standing committees
when required. He or she shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of
Directors; he or she shall have charge of the stock records of the
Corporation; he or she shall see that all reports, statements and other
documents required by law are properly kept and filed; he or she shall
have charge of the seal of the Corporation and have authority to affix the
same to any instrument requiring it, and when so affixed, it shall be
attested by his or her signature or by the signature of an Assistant
Secretary, which may be in facsimile; and in general he or she shall
perform all the duties incident to the office of Secretary and shall have
such other right, duties and powers as from time to time may be assigned
to him or her by the President or the Board of
Directors.
|
|
|
The
Assistant Secretary (or if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors), if any,
shall, in the absence or disability of the Secretary, perform the duties.
and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
|
10
|
Section
12.
|
Salaries.
The salaries of the principal officers shall be fixed from time to time by
the Board of Directors, and the salaries of any other officers may be
fixed by the President.
|
ARTICLE V: INDEMNIFICATION
OF OFFICERS AND DIRECTORS
|
Section
1.
|
Right
to Indemnification.
|
|
|
(a)
|
Each
person who was or is made a party or is threatened to be made a party to
or is otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter, a “proceeding”),
by reason of the fact that he or she is or was a Director or officer of
the Corporation or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter, an “indemnitee”),
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than permitted prior thereto
against all expense, liability and loss (including attorneys’ fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in
connection therewith and such indemnification shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee’s heirs, executors and
administrators; provided, however, that, except as provided in Section 3
of this Article V with respect to proceedings to enforce rights to
indemnification, the Corporation shall be required to indemnify a person
in connection with a proceeding (or part thereof) initiated by such person
only if the proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
|
|
|
(b)
|
The
Corporation’s obligation, if any, to indemnify any person who was or is
serving at its request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, enterprise or non
profit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture,
trust, enterprise or non profit
entity.
|
|
Section
2.
|
Right
to Advancement of Expenses. The right to indemnification conferred in
Section 1 of this Article or her shall include the right to be
paid by the Corporation the expenses (including reasonable attorneys’
fees) incurred by the indemnitee in connection with any proceeding for
which such right to indemnification is applicable in advance of its final
disposition; provided, however, that the Corporation shall have first
received an undertaking by or on behalf of such indemnitee to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal that such
indemnitee shall not be entitled to be indemnified by the
Corporation.
|
11
|
Section
3.
|
Right
of Indemnitee to Bring Suit. The rights to indemnification and to the
advancement of expenses conferred in Sections 1 and 2 of this Article V
shall be contract rights. If a claim under Sections 1 and 2 of this
Article V is not paid in full by the Corporation within sixty days after a
written claim therefor has been received by the Corporation, except in
case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a
suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled
to be paid also the expense of prosecuting or defending such suit. In (i)
any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right
to an advancement of expenses) it shall be a defense of the Corporation
that, and (ii) any suit by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set
forth in the General Corporation Law of the State of Delaware. Neither the
failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to
the commencement of such suit that indemnification of the indemnitee is
proper under the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the General Corporation Law of
the State of Delaware, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by
the indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of proving
that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article V or otherwise, shall be on
the Corporation.
|
|
Section
4.
|
Non-Exclusivity
of Rights. The rights to indemnification and to the advancement of
expenses conferred in this Article V shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
the Certificate of Incorporation, by-law, agreement, vote of stockholders
or disinterested Directors or
otherwise.
|
|
Section
5.
|
Insurance.
The Corporation may maintain insurance, at its expense, to protect itself
and any Director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against
any expense, liability or loss, whether or not the Corporation would have
the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of
Delaware.
|
12
|
Section
6.
|
Indemnification
of Employees and Agents of the Corporation. The Corporation may, to the
extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the advancement of expenses, to any
employee or agent of the Corporation to the fullest extent of the
provisions of this Article V with respect to indemnification and
advancement of expenses of Directors and officers of the
Corporation.
|
|
Section
7.
|
Repeals
and Modifications. Any repeal or modification of the foregoing provisions
of this Article V shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior
to the time of such repeal or
modification.
|
ARTICLE VI: SHARES AND THEIR
TRANSFER
|
Section
1.
|
Regulation. The
Board of Directors may make such rules and regulations as it may deem
appropriate concerning the issuance, transfer and registration of
certificates for shares of the Corporation, including the appointment of
transfer agents and registrars.
|
|
Section
2.
|
Certificate
for Stock. Every stockholder of the Corporation shall be entitled to a
certificate or certificates, to be in such form as the Board of Directors
shall prescribe, certifying the number and kind and class of shares of the
capital stock of the Corporation owned by him or her. No certificate shall
be issued for partly paid shares.
|
|
Section
3.
|
Stock
Certificate Signature. The certificates for such stock shall be numbered
in the order in which they shall be issued and shall be signed by the
Chairman of the Board, if any, or the President and the Secretary or
Treasurer of the Corporation and its seal shall be affixed thereto. The
signatures of such officers of the Corporation may be either manual or
facsimile signatures and the seal may be either facsimile or any other
form of seal. In case any officer of the Corporation who has signed, or
whose facsimile signature has been placed upon, any such certificate shall
have ceased to be such officer before such certificate is issued, the
certificate may be issued by the Corporation with the same effect as if he
or she were such officer a the date of issue. All certificates
representing stock which is restricted or limited as to its
transferability or voting powers or which is preferred or limited as to
its dividends, or as to its share of the assets upon liquidation, or is
redeemable, shall have a statement of such restriction, limitation,
preference or redemption provision, or a summary thereof, plainly stated
on the certificate.
|
|
Section
4.
|
Stock
Ledger. A record shall be kept by the Secretary or by any other officer,
employee or agent designated by the Board of Directors of the name of each
person, firm or corporation holding capital stock of the Corporation, the
number of shares represented by, and the respective dates of, each
certificate for such capital stock, and in case of cancellation of any
such certificate, the respective dates of
cancellation.
|
|
Section
5.
|
Cancellation.
Every certificate surrendered to the Corporation for exchange or
registration of transfer shall be cancelled, and no new certificate or
certificates shall be issued in exchange for any existing certificate
until such existing certificate shall have been so cancelled, except,
subject to Section 8 of this Article VI, in cases provided for by
applicable law.
|
13
|
Section
6.
|
Registrations
of Transfers of Stock. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and
for all other purposes, 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 the laws of the State of
Delaware.
|
|
Section
7.
|
Regulations.
The Board of Directors may make such rules and regulations, as it may deem
expedient, not inconsistent with the Certificate of Incorporation or these
By-laws, concerning the issue, transfer and registration of certificates
for shares of the stock of the Corporation. It may appoint, or authorize
any principal officer or officers to appoint, one or more transfer clerks
or one or more transfer agents and one or more registrars, and may require
all certificates of stock to bear the signature or signatures of any of
them.
|
|
Section
8.
|
Lost,
Stolen, Destroyed or Mutilated Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged
to have been stolen, lost or destroyed, upon the making of an affidavit of
that fact by the person claiming the certificate of stock to be stolen,
lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such
stolen, lost or destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as it shall require
and to give a bond, with sufficient surety, to the Corporation to
indemnify it against any loss or claim which may arise by reason of the
issuance of a new certificate.
|
|
Section
9.
|
Record
Dates. The Board of Directors may fix, in advance, a date as a record date
for the purpose of determining the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof, 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. Such record date shall not be more than sixty or less
than ten days before the date of such meeting, or more than sixty days
prior to any other action.
|
ARTICLE VII: MISCELLANEOUS
PROVISIONS
|
Section
1.
|
Corporate
Seal. The Board of Directors shall provide a corporate seal, which shall
be in the form of a circle and shall bear the name of the Corporation and
words and figures showing that it was incorporated in the State of
Delaware in the year 2000. The Secretary shall be the custodian of the
seal. The Board of Directors may authorize a duplicate seal to be kept and
used by any other officer.
|
14
|
Section
2.
|
Voting
of Stocks Owned by the Corporation. The Board of Directors may authorize
any person on behalf of the Corporation to attend, vote and grant proxies
to be used at any meeting of stockholders of any corporation (except the
Corporation) in which the Corporation may hold
stock.
|
|
Section
3.
|
Dividends.
Subject to the provisions of the Certificate of Incorporation, ‘the Board
of Directors may, out of funds legally available therefore, declare
dividends upon the capital stock of the Corporation as and when they deem
expedient. Dividends may be paid in cash, in property, or in shares of the
Corporation’s capital stock, subject to the provisions of law and of the
Certificate of Incorporation. Before declaring any dividend there may be
set apart out of any funds of the Corporation ‘available for dividends
such sum or sums as the Directors from time to time in their discretion
deem proper for working capital or as a reserve fund to meet contingencies
or for equalizing dividends or for such other purposes as the Board of
Directors shall deem conducive to the interests of the Corporation and the
Board of Directors may modify or abolish any such reserve in the manner in
which it was created.
|
|
Section
4.
|
Execution
of Contracts. The Board of Directors may authorize any officer or officers
or other person or persons to enter into any, contracts or execute and
deliver any instrument in the name and on behalf of the Corporation, and
such authority may be general or confined to specific instances. If and to
the extent authorized by the Board of Directors, the power to enter into
contract and execute and deliver instruments may be delegated by any such
officer or officers or person or
persons.
|
|
Section
5.
|
Loans.
No loan shall be contracted on behalf of the Corporation, and no
negotiable paper shall be issued in its name, except by such officer or
officers or other person or persons as may be designated by the Board of
Directors from time to time. If and to the extent authorized by the Board
of Directors, the power to contract loans or issue negotiable papers may
be delegated by any such officer or officers or person or
persons.
|
|
Section
6.
|
Checks,
Etc. All checks, drafts, bills of exchange, and other orders for the
payment of money, notes, letters of credit, acceptances, bills of lading,
warehouse receipts, insurance certificates, obligations, and other
evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers or other person or persons as the Board
of Directors may from time to time designate, subject to any restrictions
that the Board of Directors may, in its sole discretion, from time to time
impose, and unless so authorized by the Board of Directors or by the
provisions of these By-laws, no officer or other person shall have any
power or authority to sign any such instrument. If and to the extent
authorized by the Board of Directors, the power to sign any such
instruments may be delegated by any such officer or officers or person or
persons.
|
|
Section
7.
|
Fiscal
Year. The fiscal year of the Corporation shall begin on such date as the
Board of Directors may designate.
|
|
Section
8.
|
Rules
of Interpretation. The use of the masculine or any other pronoun herein
when referring to any party has been for convenience only and shall be
deemed to refer to the particular party intended regardless of the actual
gender of such party.
|
15
ARTICLE VIII: BORROWING
POWERS
|
Section
1.
|
The
Board of Directors of the Corporation may exercise all powers of the
Corporation to borrow money at such rates of interest as it may determine;
from time to time to issue on such terms and conditions, for such
purposes, now or hereafter permitted by the laws of the State of Delaware
and by the Certificate of Incorporation, as the Board of Directors of the
Corporation may determine; and to secure any of its obligations by
mortgage, pledge, or other encumbrance of all or any of its property,
franchises, and income provided that
the Board of Directors of the Corporation shall restrict the borrowings of
the Corporation and exercise all voting and other rights or powers of
control exercisable by the Corporation in relation to its subsidiaries so
as to secure (but as regards subsidiaries only in so far as by the
exercise of such rights or powers of control the Board of Directors of the
Corporation can secure) that the aggregate amount from time to time
outstanding of all borrowings by the Corporation and its subsidiaries (the
“Group”) (exclusive of borrowings owing by one member of the Group to
another member of the Group) shall not at any time without the
previous sanction of an affirmative vote of the holders of record of a
majority of the issued and outstanding stock of the Corporation exceed an
amount equal to three (3) times the Adjusted Capital and
Reserves.
|
|
Section
2.
|
For
the purpose of Section 1 of this Article VIII
above:
|
|
|
(a)
|
“Adjusted
Capital and Reserves” means at any time a sum equal to the aggregate
of:
|
|
|
(i)
|
the
amount paid up or credited as paid up on the issued share capital of the
Corporation; and
|
|
|
(ii)
|
the
amount standing to the credit of the reserves (including any share premium
account, capital redemption reserve and any credit balance on profit and
loss account); and
|
|
|
(iii)
|
the
amounts standing to the credit of government grants deferred revenue
account or other accounts of a similar nature of the
Group;
|
all as
shown in a consolidation by the then latest audited balance sheets of the Group
(the “Latest Accounts”) but after:
|
|
-
|
deducting
any debit balance on profit and loss account (except to the extent that
such deduction has already been
made);
|
|
|
-
|
making
adjustments to reflect any variation in the amount of such reserves or
paid up share capital, since the date of the latest audited balance sheet
for which purpose any issue or proposed issue of shares by the
Corporation for cash which has been underwritten shall be
deemed to have been issued and the amount (including any premium) of the
subscription moneys payable in respect thereof (not being moneys payable
later than six months after the date of allotment) shall to the extent so
underwritten be deemed to have been paid up on the date when the issue of
such shares was underwritten (or, if such underwriting was conditional, on
the date when it became
unconditional);
|
|
|
-
|
making
such adjustments as may be appropriate in respect of any distributions
declared, recommended or made by the Corporation or its subsidiaries
(otherwise than attributable directly or indirectly to the Corporation)
out of profits earned up to and including the date of the latest audited
balance sheet to the extent that such distributions are not provided for
therein;
|
16
|
|
-
|
making
such adjustments as may be appropriate in respect of any variation in the
interests of the Corporation in its subsidiaries since the date of the
latest audited balance sheet;
|
|
|
-
|
excluding
third party minority interests in subsidiaries and any sums set aside for
taxation (other than in respect of taxation equalisation or deferred
taxation);
|
|
|
-
|
taking
into account any revaluation of the property or assets of any member for
the time being of the Group made by an independent professional
valuer;
|
|
|
-
|
if
the calculation is required for the purposes of a transaction under or in
connection with which any company is to become or cease to be a
subsidiary, making all such adjustments as would be appropriate if such
transaction had been carried into effect;
and;
|
|
|
-
|
making
such other adjustments (if any) as the auditors of the Corporation may
consider appropriate;
|
|
|
(b)
|
“borrowings”
shall be deemed to include not only borrowings but also the following
except insofar as otherwise taken into
account:
|
|
|
(i)
|
the
principal amount of any preference share capital of any subsidiary owned
otherwise than by a member of the
Group;
|
|
|
(ii)
|
the
principal amount of any debenture (whether secured or unsecured) of a
member of the Group owned otherwise than by a member of the
Group;
|
|
|
(iii)
|
the
nominal amount of any issued share capital and the principal amount of any
debentures or borrowed moneys, the beneficial interest in which is not for
the time being owned by a member of the Group, of any body whether
corporate or unincorporate and the payment or repayment of which is the
subject of a guarantee or indemnity by a member of the
Group;
|
|
|
(iv)
|
the
outstanding amount raised by acceptances by any bank or accepting house
under any acceptance credit opened on behalf of and in favour of any
member of the Group;
|
|
|
(v)
|
any
fixed or minimum premium payable on repayment of any borrowing or deemed
borrowing;
|
|
|
(vi)
|
any
amount in respect of a financing lease payable by a Group company which
would be shown as being so payable in a balance sheet prepared in
accordance with the accounting principles used in the preparation of the
Latest Accounts; and
|
|
|
(vii)
|
any
part of the purchase price of any asset acquired by any Group company, the
payment of which is deferred beyond the date of completion of the
conveyance, assignment or transfer of the legal title to such asset(s), or
no such conveyance, assignment or transfer is to take place within six
months after the date on which the contract for such purchase is entered
into or (if later) becomes unconditional, beyond that
date;
|
17
|
|
(c)
|
“borrowings”
shall be deemed to exclude:
|
|
|
(i)
|
borrowings
for the purpose of repaying or redeeming (with or without premium) within
six months of being so borrowed in whole or in part any borrowings by a
member of the Group for the time being outstanding pending their
application for such purpose within such period;
and
|
|
|
(ii)
|
borrowings
by a Group company to finance any contract in respect of which any part of
the amount receiveable under the contract by that or any other Group
company is guaranteed or insured by any government, governmental agency or
body or by a person (not being a Group company) carrying on the business
of providing credit insurance, up to an amount equal to that part of the
amount receivable under the contract which is so guaranteed or
insured;
|
|
|
(iii)
|
any
such moneys denominated or repayable in a currency other than US dollars
shall be converted for the purpose of calculating the US Dollar equivalent
at the rate of exchange prevailing on such date in New York provided that
any such moneys shall be converted at the rate of exchange prevailing in
New York six months before such date if thereby such aggregate amount
would be less (and so that for this purpose the rate of exchange shall be
taken as the middle market rate as at the close of
business);
|
|
|
(iv)
|
where
under the terms of any borrowing the amount of money that would be
required to discharge the principal amount of such borrowing in full if it
fell to be repaid (at the option of the Corporation or by reason of
default) on such date is less than the amount that would otherwise be
taken into account in respect of such borrowing for the purpose of this
Article, the amount of such borrowing to be taken into account for the
purpose of this Article shall be such less amount;
and
|
|
|
(v)
|
any
amount payable under any hire purchase agreement, credit sale agreement,
operating lease or similar agreement which is not a finance lease for the
purposes of Section 5(c)1.2(vi) of this Article XV
above;
|
|
|
(d)
|
“audited
balance sheet” shall mean the audited balance sheet of the Corporation
unless at the date of the then latest such balance sheet there shall have
been prepared for such purposes and audited a consolidated balance sheet
of the Corporation and its subsidiaries (with such exceptions as may be
permitted in the case of a consolidated balance sheet prepared for the
purposes of the Acts) and in the latter event “audited balance sheet”
shall mean such audited consolidated balance sheet of the Corporation and
such subsidiaries, the references to reserves and profit and loss account
shall be deemed to be references to consolidated reserves and consolidated
profit and loss account respectively and there shall be excluded any
amounts attributable to outside interests in subsidiaries;
and
|
18
|
|
(e)
|
the
Corporation may from time to time change the accounting convention on
which the audited balance sheet is based, provided that any new convention
adopted complies with the requirements of generally accepted accounting
practice in the United States of America. If the Corporation
should prepare its main audited balance sheet on the basis of one such
convention but a supplementary audited balance sheet or statement on the
basis of another, the main audited balance sheet shall be taken as the
audited balance sheet for the purposes of this
Article.
|
|
Section
3.
|
A
certificate or report by the auditors for the time being of the
Corporation as to the amount of the Adjusted Capital and Reserves or the
amount of any borrowings or to the effect that the limit imposed by this
Article VIII has not been or will not be exceeded at any particular time
or times shall be conclusive evidence of such amount or fact for the
purposes of this Article VIII. For the purposes of this Article
VIII the Board of Directors of the Corporation may act in reliance on a
bona fide estimate of the amount of the Adjusted Capital and Reserves at
any time and if in consequence the limit contained in this Article XIII is
inadvertently exceeded an amount of borrowings equal to the excess may be
disregarded until the expiration of three months after the date on which,
by reason of a certificate of the auditors or otherwise, the Board of
Directors of the Corporation becomes aware that such a situation has or
may have arisen.
|
|
Section
4.
|
No
borrowing incurred or security given in excess of such limit shall be
invalid or ineffectual except in the case of express notice to the lender
or the recipient of the security at the time when the borrowing was
incurred or security given that the limit hereby imposed had been or was
thereby exceeded.
|
|
Section
5.
|
If
any uncalled capital of the Corporation is included in or charged by any
mortgage or other security, the Board of Directors may delegate to the
person in whose favor such mortgage or security is executed, or to any
other person in trust for him or her, the power to make calls on
stockholders in respect of such uncalled capital, and to sue in the name
of the Corporation or otherwise for the recovery of moneys becoming due in
respect of calls so made and to give valid receipts for such moneys, and
the power so delegated shall subsist during the continuance of the
mortgage or security, notwithstanding any change of Directors, and shall
be assignable if expressed so to
be.
|
ARTICLE IX: DEPOSITORY
INTERESTS
The Board
of Directors is authorized to make such arrangements as it may determine to be
necessary or desirable in order to enable the shares of common stock of the
Corporation to be represented by and exchanged for depository interests which
are eligible to be held and transferred in uncertificated form in a computer
based system, whether located in the United States of America, the United
Kingdom or in any other country. Notice of any such arrangements
shall be given to stockholders in such manner as the Board of Directors may
decide.
ARTICLE X: REGULATION S
RESTRICTIONS
|
Section
1.
|
All
certificates representing securities issued by the Corporation in
connection with the listing of such securities on the Alternative
Investment Market (“AIM”), a market operated by the London Stock Exchange
plc, shall bear a restrictive legend substantially in the following
format, in addition to any other legend required to be placed thereon by
applicable federal or state securities
laws:
|
19
“THE COMMON STOCK REPRESENTED BY THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE US SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IF SUCH TRANSFER IS EFFECTED (1) IN A TRANSACTION
MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (2) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3) PURSUANT
TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS.
HEDGING TRANSACTIONS INVOLVING THE COMMON STOCK OF THE COMPANY MAY NOT BE
CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.”
|
Section
2.
|
No
securities issued by the Corporation in connection with the listing of
such securities on AIM may be transferred to any U.S. Person (as such term
is defined below) or for the account or benefit of a U.S. Person without a
legal opinion issued to, and acceptable to, the Corporation and to the
transfer agent that such transfer is permissible under Regulation S under
the Securities Act of 1933, as amended, (the Securities Act”), pursuant to
a registration under the Securities Act or pursuant to an available
exemption from registration under the Securities Act and is permissable
under any other applicable securities laws. For purposes of
this section “U.S. Person” shall mean any of the
following:
|
|
|
(a)
|
Any
natural person resident in the United States of
America;
|
|
|
(b)
|
any
partnership or corporation organized or incorporated under the laws of the
United States of America;
|
|
|
(c)
|
any
estate of which any executor or administrator is a U.S.
person;
|
|
|
(d)
|
any
trust of which any trustee is a U.S.
person;
|
|
|
(e)
|
any
agency or branch of a foreign entity located in the United States of
America;
|
|
|
(f)
|
any
non-discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary for the benefit or account of a
U.S. person;
|
|
|
(g)
|
any
discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States of America;
and
|
|
|
(h)
|
any
partnership or corporation if (1) organized or incorporated under the laws
of any foreign jurisdiction; and (2) formed by a U.S. person principally
for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under the Securities Act)
who are not natural persons, estates or
trusts.
|
20