THE COMPANIES LAW
A COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
ESC MEDICAL SYSTEMS LTD.
AS AMENDED AND RESTATED ON MAY 30, 2000
PRELIMINARY
1. Table "A" Excluded. The regulations contained in the second schedule
to the Companies Ordinance (New Version), 5743-1983 (the "Companies
Ordinance ") shall not apply to the Company.
2. Interpretation. In these Articles the words standing in the first
column of the table next hereinafter contained shall bear the meaning set
opposite to them respectively in the second column thereof, if not
inconsistent with the subject or context.
"The Company" -- ESC Medical Systems Ltd.
"The Statutes" -- The Companies Ordinance, the
Companies Law, 1999 (the "Companies Law") and
every other Israeli law in force concerning
companies limited by shares and affecting the
Company.
"These Articles" -- These Articles of Association as originally
drafted or as altered from time to time by
Ordinary Resolution.
"The Office" -- The current registered office of the Company.
"Outside Director" -- Shall have the meaning as set forth in
Section 1 of the Companies Law.
"Office Holder" -- Shall have the meaning set forth in Section 1
of the Companies Law.
"Ordinary Resolution" -- Shall have the meaning set forth in Article 28(a).
"Year" and "Month" -- A Gregorian month or year.
(b) Unless otherwise defined in these Articles or required by the
context, terms used herein shall have the meaning provided therefor under
the Companies Law.
3. Amendments. These Articles may be amended or replaced at any time
and from time to time, if such amendment or replacement is recommended by
the Board of Directors, by an Ordinary Resolution, but in any other case by
a resolution approved by the holders of at least seventy-five percent (75%)
of the shares represented at a General Meeting and voted thereon.
3A. Purpose. The purpose of the Company is to engage in any legal
business. The Company may extend reasonable donations for any proper cause.
SHARE CAPITAL
4. Share Capital. (a) The authorized share capital of the Company is
NIS 5,000,000 divided into 50,000,000 (fifty million) Ordinary Shares, par
value NIS 0.1 per share.
(b) The Ordinary Shares all rank pari passu in all respects.
5. Increase of Authorized Share Capital. (a) The Company may, from time
to time, by Ordinary Resolution, whether or not all the shares then
authorized have been issued, and whether or not all the shares theretofore
issued have been called up for payment, increase its authorized share
capital. Any such increase shall be in such amount and shall be divided
into shares of such nominal amounts, and such shares shall confer such
rights and preferences, and shall be subject to such restrictions, as such
Ordinary Resolution shall provide.
(b) Except to the extent otherwise provided in such Ordinary
Resolution, any new shares included in the authorized share capital
increased as aforesaid shall be subject to all the provisions of these
Articles which are applicable to shares of such class included in the
existing share capital without regard to class (and, if such new shares are
of the same class as a class of shares included in the existing share
capital, to all of the provisions which are applicable to shares of such
class included in the existing share capital).
6. Special Rights; Modification of Rights. (a) Without prejudice to any
special rights previously conferred upon the holders of existing shares in
the Company, the Company may, from time to time, by Ordinary Resolution,
provide for shares with such preferred or deferred rights or rights of
redemption or other special rights and/or such restrictions, whether in
regard to dividends, voting, repayment of share capital or otherwise, as
may be stipulated in such Ordinary Resolution.
(b) (i) If at any time the share capital is divided into different
classes of shares, the rights attached to any class, unless otherwise
provided by these Articles, may be modified or abrogated by the Company, by
Ordinary Resolution or the sanction of a Ordinary Resolution passed at a
separate General Meeting of the holders of the shares of such class.
(ii) The provisions of these Articles relating to General Meetings
shall, mutatis mutandis, apply to any separate General Meeting of the
holders of the shares of a particular class, provided, however, that the
requisite quorum at any such separate General Meeting shall be two or more
shareholders present in person or by proxy and holding not less than one
third (1/3) of the issued shares of such class.
(iii) Unless otherwise provided by these Articles, the enlargement of
an authorized class of shares, or shares, or the issuance of additional
shares thereof out of the authorized and unissued share capital, shall not
be deemed, for purposes of this Article 6(b), to modify or abrogate the
rights attached to previously issued shares of such class or of any other
class.
7. Consolidation, Subdivision, Cancellation and Reduction of Share
Capital. (a) The Company may, from time to time, by Ordinary Resolution
(subject, however, to the provisions of Article 6(b) hereof and to
applicable law):
(i) consolidate and divide all or any part of its issued or
unissued authorized share capital into shares of a per share nominal
value which is larger than the per share nominal value of its existing
shares;
(ii) subdivide its shares (issued or unissued) or any of them,
into shares of smaller nominal value than is fixed by the Memorandum of
Association;
(iii) cancel any shares which, at the date of the adoption of
such Ordinary Resolution, have not been taken or agreed to be taken by
any person, and diminish the amount of its share capital by the amount
of the shares so canceled; or
(iv) reduce its share capital in any manner, and with and
subject to any incident authorized, and consent required, by law.
(b) With respect to any consolidation of issued shares into shares of a
larger nominal value per share, and with respect to any other action which
may result in fractional shares, the Board of Directors may settle any
difficulty which may arise with regard thereto, as it deems fit, and, in
connection with any such consolidation or other action which could result
in fractional shares, may, without limiting its aforesaid power:
(i) Determine, as to the holder of shares so consolidated, which
issued shares shall be consolidated into a share of a larger nominal
value per share.
(ii) Allot, in contemplation of or subsequent to such
consolidation or other action, shares or fractional shares sufficient
to preclude or remove fractional share holdings;
(iii) Redeem, in the case of redeemable preference shares, and
subject to applicable law, such shares or fractional shares sufficient
to preclude or remove fractional share holdings;
(iv) Cause the transfer of fractional shares by certain
shareholders of the Company to other shareholders thereof so as to most
expediently preclude or remove any fractional shareholdings, and cause
the transferees of such fractional shares to pay the transferors
thereof the fair value thereof, and the Board of Directors is hereby
authorized to act in connection with such transfer, as agent for the
transferors and transferees of any such fractional shares, with full
power of substitution, for the purposes of implementing the provisions
of this sub-Article 7(b)(iv).
8. Issuance of Share Certificates, Replacement of Lost Certificates.
(a) Share certificates shall be issued under the corporate seal of the
Company and shall bear the signature of one Director, or of any person or
persons authorized therefor by the Board of Directors.
(b) Each shareholder shall be entitled to one numbered certificate for
all the shares of any class registered in his name, and if the Board of
Directors so approves, to several certificates, each for one or more of
such shares. Each certificate shall specify the serial numbers of the
shares represented thereby and may also specify the amount paid up thereon.
(c) A share certificate registered in the names of two or more persons
shall be delivered to the person first named in the Register of
Shareholders in respect of such co-ownership.
(d) A share certificate which has been defaced, lost or destroyed, may
be replaced, and the Company shall issue a new certificate to replace such
defaced, lost or destroyed certificate upon payment of such fee, and upon
the furnishing of such evidence of ownership and such indemnity, as the
Board of Directors in its discretion deems fit.
9. Registered Holder. Except as otherwise provided in these Articles or
the Statutes, the Company shall be entitled to treat the registered holder
of each share as the absolute owner thereof, and accordingly, shall not,
except as ordered by a court of competent jurisdiction, or as required by
statute, be obligated to recognize any equitable or other claim to, or
interest in, such share on the part of any other person.
10. Allotment and Repurchase of Shares. (a) The unissued shares from
time to time shall be under the control of the Board of Directors, who
shall have the power to allot, issue or otherwise dispose of shares to such
persons, on such terms and conditions (including inter alia terms relating
to calls set forth in Article 12(f) hereof), and either at par or at a
premium, or subject to the provisions of the Companies Law, at a discount
and/or with payment of commission, and at such times, as the Board of
Directors deems fit, and the power to give to any person the option to
acquire from the Company any shares, either at par or at a premium, or,
subject as aforesaid, at a discount and/or with payment of commission,
during such time and for such consideration as the Board of Directors deems
fit.
(b) The Company may at any time and from time to time, subject to the
Companies Law, purchase back or finance the purchase of any shares or other
securities issued by the Company, in such manner and under such terms as
the Board of Directors shall determine, whether from any one or more
shareholders. Such purchase shall not be deemed as payment of dividends and
no shareholder will have the right to require the Company to purchase his
shares or offer to purchase shares from any other shareholders.
11. Payment in Installment. If pursuant to the terms of allotment or
issue of any share, all or any portion of the price thereof shall be
payable in installments, every such installment shall be paid to the
Company on the due date thereof by the then registered holder(s) of the
share or the person(s) then entitled thereto.
12. Calls on Shares. (a) The Board of Directors may, from time to time,
as it, in its discretion, deems fit, make calls for payment upon
shareholders in respect of any sum which has not been paid up in respect of
shares held by such shareholders and which is not, pursuant to the terms of
allotment or issue of such shares or otherwise, payable at a fixed time,
and each shareholder shall pay the amount of every call so made upon him
(and of each installment thereof if the same is payable in installments),
to the person(s) and at the time(s) and place(s) designated by the Board of
Directors, as any such times may be thereafter extended and/or such
person(s) or place(s) changed. Unless otherwise stipulated in the
resolution of the Board of Directors (and in the notice hereafter referred
to), each payment in response to a call shall be deemed to constitute a pro
rata payment on account of all the shares in respect of which such call was
made.
(b) Notice of any call for payment by a shareholder shall be given in
writing to such shareholder not less than fourteen (14) days prior to the
time of payment fixed in such notice, and shall specify the time and place
of payment, and the person to whom such payment is to be made. Prior to the
time for any such payment fixed in a notice of a call given to a
shareholder, the Board of Directors may in its absolute discretion, by
notice in writing to such shareholder, revoke such call in whole or in
part, extend the time fixed for payment thereof, or designate a different
place of payment or person to whom payment is to be made. In the event of a
call payable in installments, only one notice thereof need be given
(c) If pursuant to the terms of allotment or issue of a share or
otherwise, an amount is made payable at a fixed time (whether on account of
such share or by way of premium), such amount shall be payable at such time
as if it were payable by virtue of a call made by the Board of Directors
and for which notice was given in accordance with paragraphs (a) and (b) of
this Article 12, and the provision of these Articles with regard to calls
(and the non-payment thereof) shall be applicable to such amount (and the
non-payment thereof).
(d) Joint holders of a share shall be jointly and severally liable to
pay all calls for payment in respect of such share and all interest payable
thereon.
(e) Any amount called for payment which is not paid when due shall bear
interest from the date fixed for payment until actual payment thereof, at
such rate (not exceeding the then prevailing debitory rate charged by
leading commercial banks in Israel), and payable at such time(s) as the
Board of Directors may prescribe.
(f) Upon the allotment of shares, the Board of Directors may provide
for differences among the allottees of such shares as to the amounts and
times for payment of calls for payment in respect of such shares.
13. Prepayment. With the approval of the Board of Directors, any
shareholder may pay to the Company any amount not yet payable in respect of
his shares, and the Board of Directors may approve the payment by the
Company of interest on any such amount until the same would be payable if
it had not been paid in advance, at such rate and time(s) as may be
approved by the Board of Directors. The Board of Directors may at any time
cause the Company to repay all or any part of the money so advanced,
without premium or penalty. Nothing in this Article 13 shall derogate from
the right of the Board of Directors to make any call for payment before or
after receipt by the Company of any such advance.
14. Forfeiture and Surrender. (a) If any shareholder fails to pay an
amount payable by virtue of a call, or interest thereon as provided for in
accordance herewith, on or before the day fixed for payment of the same,
the Board of Directors, may at any time after the day fixed for such
payment, so long as such amount (or any portion thereof) or interest
thereon (or any portion thereof) remains unpaid, forfeit all or any of the
shares in respect of which such payment was called for. All expenses
incurred by the Company in attempting to collect any such amount or
interest thereon, including, without limitation, attorneys' fees and costs
of legal proceedings, shall be added to, and shall, for all purposes
(including the accrual of interest thereon); constitute a part of, the
amount payable to the Company in respect of such call.
(b) Upon the adoption of a resolution as to the forfeiture of a
shareholder's share, the Board of Directors shall cause notice thereof to
be given to such shareholder, which notice shall state that, in the event
of the failure to pay the entire amount so payable by a date specified in
the notice (which date shall be not less than fourteen (14) days after the
date such notice is given and which may be extended by the Board of
Directors), such shares shall be ipso facto forfeited, provided, however,
that, prior to such date, the Board of Directors may nullify such
resolution of forfeiture, but no such nullification shall stop the Board of
Directors from adopting a further resolution of forfeiture in respect of
the non- payment of the same amount.
(c) Without derogating from Articles 54 and 59 hereof, whenever shares
are forfeited as herein provided, all dividends, if any, theretofore
declared in respect thereof and not actually paid shall be deemed to have
been forfeited at the same time.
(d) The Company, by resolution of the Board of Directors, may accept
the voluntary surrender of any share.
(e) Any share forfeited or surrendered as provided herein, shall become
the property of the Company, and the same, subject to the provisions of
these Articles, may be sold, re-allotted or otherwise disposed of as the
Board of Directors deems fit.
(f) Any shareholder whose shares have been forfeited or surrendered
shall cease to be a shareholder in respect of the forfeited or surrendered
shares, but shall, notwithstanding, be liable to pay, and shall forthwith
pay, to the Company, all calls, interest and expenses owing upon or in
respect of such shares at the time of forfeiture or surrender, together
with interest thereon from the time of forfeiture or surrender until actual
payment, at the rate prescribed in Article 12(e) above, and the Board of
Directors, in its discretion, may, but shall not be obligated to, enforce
the payment of such moneys, or any part thereof. In the event of such
forfeiture or surrender, the Company, by resolution of the Board of
Directors, may accelerate the date(s) of payment of any or all amounts then
owing to the Company by the shareholder in question (but not yet due) in
respect of all shares owned by such shareholder, solely or jointly with
another.
(g) The Board of Directors may at any time, before any share so
forfeited or surrendered shall have been sold, re-allotted or otherwise
disposed of, nullify the forfeiture or surrender on such conditions as it
deems fit, but no such nullification shall stop the Board of Directors from
re-exercising its powers of forfeiture pursuant to this Article 14.
15. Lien. (a) Except to the extent the same may be waived or
subordinated in writing, the Company shall have a first and paramount lien
upon all the shares registered in the name of each shareholder (without
regard to any equitable or other claim or interest in such shares on the
part of any other person), and upon the proceeds of the sale thereof, for
his debts, liabilities and engagements to the Company arising from any
amount payable by such shareholder in respect of any unpaid or partly paid
share, whether or not such debt, liability or engagement has matured. Such
lien shall extend to all dividends from time to time declared or paid in
respect of such share. Unless otherwise provided, the registration by the
Company of a transfer of shares shall be deemed to be a waiver on the part
of the Company of the lien (if any) existing on such shares immediately
prior to such transfer.
(b) The Board of Directors may cause the Company to sell a share
subject to such a lien when the debt, liability or engagement giving rise
to such lien has matured, in such manner as the Board of Directors deems
fit, but no such sale shall be made unless such debt, liability or
engagement has not been satisfied within fourteen (14) days after written
notice of the intention to sell shall have been served on such shareholder,
his executors or administrators.
(c) The net proceeds of any such sale, after payment of the costs
thereof, shall be applied in or toward satisfaction of the debts,
liabilities or engagements of such shareholder in respect of such share
(whether or not the same have matured), and the residue (if any) shall be
paid to the shareholder, his executors, administrators or assigns.
16. Sale After Forfeiture of Surrender or in Enforcement of Lien. Upon
any sale of a share after forfeiture or surrender or for enforcing a lien,
the Board of Directors may appoint any person to execute an instrument of
transfer of the share so sold and cause the purchaser's name to be entered
in the Register of Shareholders in respect of such share. The purchaser
shall be registered as the shareholder and shall not be bound to see to the
regularity of the sale proceedings, or to the application of the proceeds
of such sale, and after his name has been entered in the Register of
Shareholders in respect of such share, the validity of the sale shall not
be impeached by any person, and person, and the remedy of any person
aggrieved by the sale shall be in damages only and against the Company
exclusively.
17. Redeemable Shares. The Company may, subject to applicable law,
issue redeemable shares and redeem the same.
18. Conversion of Shares into Stock. (a) The Board of Directors may,
with the sanction of the shareholders previously given by Ordinary
Resolution, convert any paid-up shares into stock, and may, with like
sanction, reconvert any stock into paid-up shares of any denomination.
(b) The holders of stock may transfer the same, or any part thereof, in
the same manner and subject to the same regulations, as the shares from
which the stock arose might have been transferred prior to conversion, or
as near thereto as circumstances admit, provided, however, that the Board
of Directors may from time to time fix the minimum amount of stock so
transferable, and restrict or forbid the transfer of fractions of such
minimum, but the minimum shall not exceed the nominal value of each of the
shares from which such stock arose.
(c) The holders of stock shall, in accordance with the amount of stock
held by them, have the same rights and privileges as regards the minimum
amount of stock so transferable, and restrict or forbid the transfer of
fractions of such minimum, but the minimum shall not exceed the nominal
value of each of the shares from which such stock arose.
(d) The holders of stock shall, in accordance with the amount of stock
held by them, have the same rights and privileges as regards the minimum
amount of stock so transferable, and restrict of forbid the transfer of
fractions of such minimum, but the minimum shall not exceed the nominal
value of each of the shares from which such stock arose.
(e) Such of the Articles of the Company as are applicable to paid-up
shares shall apply to stock, and the words "share" and "shareholder" (or
"shareholder") therein shall include "stock" and "stockholder".
TRANSFER OF SHARES
19. Registration of Transfer. (a) No transfer of shares shall be
registered unless a proper writing or instrument of transfer (in any
customary form or any other form satisfactory to the Board of Directors)
has been submitted to the Company (or its transfer agent), together with
the share certificate(s) and such other evidence of title as the Board of
Directors may reasonably require. Until the transferee has been registered
in the Register of Shareholders in respect of the shares so transferred,
the Company may continue to regard the transferor as the owner thereof.
(b) The Board of Directors may, in its discretion to the extent it
deems necessary, close the Register of Shareholders of registration of
transfers of shares during any year for a period determined by the Board of
Directors, and no registrations of transfers of shares shall be made by the
Company during any such period during which the Register of Shareholders is
so closed.
20. Record Date for Notices of General Meeting and Other Action.
Notwithstanding any other contrary provision of these Articles, in order
that the Company may determine the shareholders entitled to notice of or to
vote at any Annual or Special General Meeting or any adjournment thereof,
or to express consent to or dissent from any 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 or to take or be the subject of any other action, the Board
of Directors may fix in advance, a record date, which shall not be more
than twenty-one nor less than four days before the date of such meeting (or
any longer or shorter period permitted by law), nor more than sixty days
prior to any other action. A determination of shareholders of record
entitled to notice of or to vote at a meeting shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
TRANSMISSION OF SHARES
21. Decedents' Shares. (a) In case of a share registered in the names
of two or more holders, the Company may recognize the survivor(s) as the
sole owner(s) thereof unless and until the provisions of Article 21 (b)
have been effectively invoked.
(b) Any person becoming entitled to a share in consequence of the death
of any person, upon producing evidence of the grant of probate or letters
of administration or declaration of succession (or such other evidence as
the Board of Directors may reasonably deem sufficient), shall be registered
as a shareholder in respect of such share, or may, subject to the
regulations as to transfer herein contained, transfer such share.
22. Receivers and Liquidators. (a) The Company may recognize any
receiver, liquidator or similar official appointed to wind-up, dissolve or
otherwise liquidate a corporate shareholder, and a trustee, manager,
receiver, liquidator or similar official appointed in bankruptcy or in
connection with the reorganization of, or similar proceeding with respect
to a shareholder or its properties, as being entitled to the shares
registered in the name of such shareholder.
(b) Such receiver, liquidator or similar official appointed to wind-up,
dissolve or otherwise liquidate a corporate shareholder and such trustee,
manager, receiver, liquidator or similar official appointed in bankruptcy
or in connection with the reorganization of, or similar proceedings with
respect to a shareholder or its properties, upon producing such evidence as
the Board of Directors may deem sufficient as to his authority to act in
such capacity or under this Article, shall with the consent of the Board of
Directors (which the Board of Directors may grant or refuse in its absolute
discretion), be registered as a shareholder in respect of such shares, or
may, subject to the regulations as to transfer herein contained, transfer
such shares.
GENERAL MEETINGS
23. Annual General Meeting. (a) An Annual General Meeting shall be held
once in every calendar year at such time (within a period of not more than
fifteen (15) months after the last preceding Annual General Meeting) and at
such place, either within or without the State of Israel, as may be
determined by the Board of Directors.
(b) Subject to the provisions of these Articles, the function of the
Annual General Meeting shall be to elect the members of the Board of
Directors; to appoint auditors and to fix, or authorize the directors to
fix, their salaries and to transact any other business which under these
Articles or the Statutes are to be transacted at a General Meeting.
24. Special General Meetings. All General Meetings other than Annual
General Meetings shall be called "Special General Meeting". The Board of
Directors may, whenever it thinks fit, convene a Special General Meeting,
at such time and place, within or out of the State of Israel, as may be
determined by the Board of Directors, and shall be obliged to do so upon a
requisition in writing in accordance with Section 63 of the Companies Law.
25. Notice of General Meetings; Omission to Give Notice. (a) Not less
than twenty-one (21) days' prior notice shall be given of every General
Meeting. Each such notice shall specify the place and the day and hour of
the meeting and the general nature of each item to be acted upon thereat,
said notice to be given to all shareholders who would be entitled to attend
and vote at such meeting. Notice of a General Meeting shall be given in
accordance with the Statutes and any other applicable law, and otherwise as
the Board of Directors may determine. Anything therein to the contrary
notwithstanding, with the consent of all shareholders entitled to vote
thereon, a resolution may be proposed and passed at such meeting although a
lesser notice than hereinabove prescribed has been given.
(b) The accidental omission to give notice of a meeting to any
shareholder, or the non-receipt of notice sent to such shareholder, shall
not invalidate the proceedings at such meeting.
(c) No shareholder present, in person or by proxy, at the commencement
of a General Meeting shall be entitled to seek the abolishment of any
proceedings or resolutions adopted at such General Meeting on account of
any defect in the notice of such meeting relating to the time or the place
thereof, or any item to be acted upon at such meeting which is such that is
usually acted upon at Annual General Meetings of the Company.
PROCEEDINGS AT GENERAL MEETINGS
26. Quorum. (a) No business shall be transacted at a General Meeting,
or at any adjournment thereof, unless the quorum required under these
Articles for such General Meeting or such adjourned meeting, as the case
may be, is present when the meeting proceeds to business.
(b) In the absence of contrary provisions in these Articles, two or
more shareholders (not in default in payment of any sum referred to in
Article 32(a) hereof), present in person or by proxy and holding shares
conferring in the aggregate at least thirty three and a third percent
(33 1/3%) of the voting power of the Company, shall constitute a quorum of
General Meetings.
(c) If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting shall be adjourned to the same day in
the next week, at the same time and place, or to such day and at such time
and place as the Chairman may determine with the consent of the holders of
majority of the voting power represented at the meeting in person or by
proxy and voting on the question of adjournment. No business shall be
transacted at any adjourned meeting except business which might lawfully
have been transacted at the meeting as originally called. At such adjourned
meeting (other than an adjourned separate meeting of a particular class of
shares as referred to in Article 6 of these Articles), if the original
meeting was convened upon requisition under Section 63 of the Companies
Law, one or more shareholders, present in person or by proxy, and holding
the number of shares required for making such requisition, shall constitute
a quorum, but in any other case any two (2) shareholders (not in default as
aforesaid) present in person or by proxy, shall constitute a quorum.
27. Chairman. The Chairman, if any, of the Board of Directors, shall
preside as Chairman at every General Meeting of the Company. If at any
meeting the Chairman is not present within fifteen (15) minutes after the
time fixed for holding the meeting or is unwilling to act as Chairman, the
Co-Chairman shall preside at the meeting. If at any such meeting both the
Chairman and the Co-Chairman are not present or are unwilling to act as
Chairman, shareholders present shall choose someone of their number to be
Chairman. The office of Chairman shall not, by itself, entitle the holder
thereof to vote at any General Meeting nor shall it entitle such holder to
a second or casting vote (without derogating, however, from the rights of
such Chairman to vote as a shareholder or proxy of a shareholder if, in
fact, he is also a shareholder or such proxy).
28. Adoption of Resolutions at General Meetings. (a) (i) An Ordinary
Resolution shall be deemed adopted if approved by the holders of a majority
of the voting power represented at the meeting in person or by proxy and
voting thereon.
(ii) Any matter required under the Companies Ordinance to be approved
by a Special or Extraordinary Resolution shall be deemed adopted if
approved by an Ordinary Resolution, except as otherwise mandated by any
provision of the Companies Ordinance then still in effect.
(b) Every question submitted to a General Meeting shall be decided by a
written ballot.
(c) A declaration by the Chairman of the meeting that a resolution has
been carried unanimously, or carried by a particular majority, or lost, and
an entry to that effect in the minute book of the Company, shall be prima
facie evidence of the fact without proof of the number or proportion of the
votes recorded in favor of or against such resolution.
29. Resolutions in Writing. A resolution in writing signed by all
shareholders of the Company then entitled to attend and vote at General
Meetings or to which all such shareholders have given their written consent
(by letter, telegram, telex, facsimile or otherwise) shall be deemed to
have been unanimously adopted by a General Meeting duly convened and held.
30. Power to Adjourn. The Chairman of a General Meeting at which a
quorum is present may, with the consent of the holders of a majority of the
voting power represented in person or by proxy and voting on the question
of adjournment (and shall if so directed by the meeting), adjourn the
meeting from time to time and from place to place, but no business shall be
transacted at any adjourned meeting except business which might lawfully
have been transacted at the meeting as originally called.
31. Voting Power. Subject to the provisions of Article 32(a) and
subject to any provision hereof conferring special rights as to voting, or
restricting the right to vote, every shareholder shall have one vote for
each share held by him of record or in his name with an "exchange member"
and held of record by a "nominees company" (as such terms are defined under
Section 1 of the Companies Law), on every resolution, without regard to
whether the vote thereon is conducted by a show of hands, by written ballot
or by any other means.
32. Voting Rights. (a) No shareholder shall be entitled to vote at any
General Meeting (or be counted as a part of the quorum thereat), unless all
calls then payable by him in respect of his shares in the Company have been
paid, but this Article 32(a) shall not apply to separate General Meetings
of the holders of a particular class of shares pursuant to Article 6(b).
(b) A company or other corporate body being a shareholder of the
Company may duly authorize any person to be its representative at any
meeting of the Company or to execute or deliver a proxy on its behalf. Any
person so authorized shall be entitled to exercise on behalf of such
shareholder all the power which the latter could have exercised if it were
an individual shareholder. Upon the request of the Chairman of the meeting,
written evidence of such authorization (in form acceptable to the Chairman)
shall be delivered to him.
(c) Any shareholder entitled to vote may vote either in person or by
proxy (who need not be shareholder of the Company), or, if the shareholder
is a company or other corporate body, by representative authorized pursuant
to Article 32(b).
(d) If two or more persons are registered as joint holders of any
share, the vote of the senior who tenders a vote, in person or by proxy,
shall be accepted to the exclusion of the vote(s) of the other joint
holder(s). For the purpose of this Article 32(d), seniority shall be
determined by the order of registration of the joint holders in the
Register of Shareholder.
PROXIES
33. Instrument of Appointment. (a) An instrument appointing a proxy
shall be in writing and shall be substantially in the following form:
"I, ____________________, of ____________________
(Name of Shareholder)
(Address of Shareholder)
being a shareholder of ESC Medical Systems Ltd. hereby appoint
, of ____________________,
(Name of Proxy)
(Address of Proxy)
as my proxy to vote for me and on my behalf at the General Meeting of
the Company to be held on the _____ day of __________, ____ and at any
adjournment(s) thereof.
Signed this day of ____________________, ____________________.
"
(Signature of Appointor)
or in any usual or common form or in such other form as may be approved by
the Board of Directors. Such proxy shall be duly signed by the appointor of
such person's duly authorized attorney, or, if such appointor is company or
other corporate body, under its common seal or stamp or the hand of its
duly authorized agent(s) or attorney(s).
(b) The instrument appointing a proxy (and the power of attorney or
other authority, if any, under which such instrument has been signed) shall
either be presented to the Chairmen at the meeting at which the person
named in the instrument proposes to vote or be delivered to the Company (at
its Registered Office, at its principal place of business, or at the
offices of its registrar or transfer agent, or at such place as the Board
of Directors may specify) not less than two (2) hours before the time fixed
for such meeting, except that the instrument shall be delivered (i)
twenty-four (24) hours before the time fixed for the meeting where the
meeting is to be held outside of Israel and the instrument is delivered to
the Company at it Registered Office or principal place of business, or (ii)
forty-eight (48) hours before the time fixed for the meeting where the
meeting is to be held outside of the United States of America and the
instrument is delivered to the Company's registrar or transfer agent.
34. Effect of Death of Appointor of Transfer of Share and or Revocation
of Appointment. (a) A vote cast in accordance with an instrument appointing
a proxy shall be valid notwithstanding the prior death or bankruptcy of the
appointing shareholder (or of his attorney-in-fact, if any, who signed such
instrument), or the transfer of the share in respect of which the vote is
cast, unless written notice of such matters shall have been received by the
Company or by the Chairman of such meeting prior to such vote being cast.
(b) An instrument appointing a proxy shall be deemed revoked (i) upon
receipt by the Company or the Chairman, subsequent to receipt by the
Company of such instrument, of written notice signed by the person signing
such instrument or by the shareholder appointing such proxy canceling the
appointment thereunder (or the authority pursuant to which such instrument
was signed) or of an instrument appointing a different proxy (and such
other documents, if any, required under Article 33(b) for such new
appointment), provided such notice of cancellation or instrument appointing
a different proxy were so received at the place and within the time for
delivery of the instrument revoked thereby as referred to in Article 33(b)
hereof, or (ii) if the appointing shareholder is present in person at the
meeting for which such instrument of proxy was delivered, upon receipt by
the Chairman of such meeting of written notice from such shareholder of the
revocation of such appointment, or if and when such shareholder votes at
such meeting. A vote cast in accordance with an instrument appointing a
proxy shall be valid notwithstanding the revocation or purported
cancellation of the appointment, or the presence in person or vote of the
appointing shareholder at a meeting for which it was rendered, unless such
instrument of appointment was deemed revoked in accordance with the
foregoing provisions of this Article 34(b) at or prior to the time such
vote was cast.
BOARD OF DIRECTORS
35. Powers of Board of Directors. (a) In general. The management of the
business of the Company shall be vested in the Board of Directors, which
may exercise all such powers and do all such acts and things as the Company
is authorized to exercise and do, and are not hereby or by law required to
be exercised or done by the Company by action of its shareholders at a
General Meeting. The authority conferred on the Board of Directors by this
Article 35 shall be subject to the provisions of the Statutes, these
Articles and any regulation or resolution consistent with these Articles
adopted from time to time by the Company by action of its shareholders at a
General Meeting, provided, however, that no such regulation or resolution
shall invalidate any prior act done by or pursuant to a decision of the
Board of Directors which would have been valid if such regulation or
resolution had not been adopted.
(b) Borrowing Power. The Board of Directors may from time to time, at
its discretion, cause the Company to borrow or secure the payment of any
sum or sums of money for the purposes of the Company, and may secure or
provide for the repayment of such sum or sums in such manner, at such times
and upon such terms and conditions as it deems fit, and, in particular, by
the issuance of bonds, perpetual or redeemable debentures, debenture stock,
or any mortgages, charges, or other securities on the undertaking or the
whole or any part of the property of the Company, both present and future,
including its uncalled or called but unpaid capital for the time being.
(c) Reserves. The Board of Directors may, from time to time, set aside
any amount(s) out of the profits of the Company as a reserve or reserves
for any purpose(s) which the Board of Directors, in its absolute
discretion, shall deem fit, including without limitation, capitalization
and distribution of bonus shares, and may invest any sum so set aside in
any manner and from time to time deal with and vary such investments and
dispose of all or any part thereof, and employ any such reserve or any part
thereof in the business of the Company without being bound to keep the same
separate from other assets of the Company, and may subdivide or redesignate
any reserve or cancel the same or apply the funds therein for another
purpose, all as the Board of Directors may from time to time think fit.
36. Exercise of Powers of Board of Directors. (a) A meeting of the
Board of Directors at which a quorum is present shall be competent to
exercise all the authorities, powers and discretion vested in or
exercisable by the Board of Directors.
(b) A resolution proposed at any meeting of the Board of Directors
shall be deemed adopted if approved by a majority of the Directors present
when such resolution is put to a vote and voting thereon.
(c) A resolution in writing signed by all of the Directors then in
office and lawfully entitled to vote thereon or to which all of the
Directors have given their written consent (by letter, telegram, telex,
facsimile, electronic mail or otherwise) shall be deemed to have been
unanimously adopted by a meeting of the Board of Directors duly convened
and held.
37. Delegation of Powers. (a) The Board of Directors may, subject to
the provisions of the Statutes, delegate any or all of its powers to
Committees, each consisting of one or more persons (who are Directors), and
it may from time to time revoke such delegation or alter the composition of
any such committee. Any Committee so formed (in these Articles referred to
as a "Committee of the Board of Directors"), shall, in the exercise of the
powers so delegated, conform to any regulation imposed on it by the Board
of Directors. The meeting and proceedings of any such Committee of the
Board of Directors shall, mutatis mutandis, be governed by the provisions
herein contained for regulating the meetings of the Board of Directors, so
far as not superseded by any regulations adopted by the Board of Directors
under this Article. Unless otherwise expressly provided by the Board of
Directors in delegating powers to a Committee of the Board of Directors,
such Committee shall not be empowered to further delegate such powers.
(b) Without derogating from the provisions of Article 50, the Board of
Directors may from time to time appoint a Secretary to the Company, as well
as officers, agents, employees and independent contractors, as the Board of
Directors deems fit, and may terminate the service of any such person. The
Board of Directors may, subject to the provisions of the Companies
Ordinance, determine the powers and duties, as well as the salaries and
emoluments, of all such persons, and may require security in such cases and
in such amounts as it deems fit.
(c) The Board of Directors may from time to time, by power of attorney
or otherwise, appoint any person, company, firm or body of persons to be
the attorney or attorneys of the Company at law or in fact for such
purposes(s) and with such powers, authorities and discretions, and for such
period and subject to such conditions, as it deems fit, and any such power
of attorney or other appointment may contain such provisions for the
protection and convenience of persons dealing with any such attorney as the
Board of Directors deems fit, and may also authorize any such attorney to
delegate all or any of the powers, authorities and discretions vested in
him.
38. Number of Directors. The Board of Director of the Company shall
consist of such number of Directors (not less than two nor more than
fourteen, including the Outside Directors) as may be fixed, from time to
time, by Ordinary Resolution of the Company.
39. Election and Removal of Directors. (a) Directors shall be elected
at the Annual General Meeting by the vote of the holders of a majority of
the voting power represented at such meeting in person or by proxy and
voting on the election of directors, and each Director shall serve, subject
to Article 42 hereof, and, with respect to a Director appointed pursuant to
Article 41 hereof, subject to such Article, until the Annual General
Meeting next following the Annual General Meeting or General Meeting at
which such Director was elected pursuant to this Article or Article 41
hereof, or his earlier removal pursuant to this Article 39. The holders of
a majority of the voting power represented at a General Meeting in person
or by proxy and voting thereon at such meeting shall be entitled to remove
any Director(s) from office, to elect Directors instead of Directors so
removed or to fill any vacancy, however created, in the Board of Directors.
(b) The Directors may at any time and from time to time appoint any
other person as a Director, whether to fill a vacancy or whether in
addition to those of their body. Any Director so appointed shall hold
office until the first General Meeting convened after such appointment and
may be re-elected.
(c) The election, qualification and removal of Outside Directors shall
be regulated by the applicable provisions set forth in the Companies Law.
40. Qualification of Directors. No person shall be disqualified to
serve as a Director by reason of his not holding shares in the Company or
by reason of his having served as a Director in the past.
41. Continuing Directors in the Event of Vacancies. In the event of one
or more vacancies in the Board of Directors, the continuing Directors may
continue to act in every matter, and, pending the filling of any vacancy
pursuant to the provisions of Article 39, may appoint Directors to
temporarily fill any such vacancy, provided, however, that if they number
less than a majority of the number provided of pursuant to Article 38
hereof, they may only act in an emergency or to fill the office of director
which has become vacant up to the minimum number or in order to call a
General Meeting of the Company for the purpose of electing Directors to
fill any or all vacancies, so that at least a majority of the number of
Directors provided for pursuant to Article 38 hereof are in office as a
result of said meeting.
42. Vacation of Office. (a) The office of a Director shall be vacated,
ipso facto, upon his death, or if he be found lunatic or become of unsound
mind, or if he becomes bankrupt, or if the Director is a company, upon its
winding-up.
(b) The office of a Director shall be vacated by his written
resignation. Such resignation shall become effective on the date fixed
therein, or upon the delivery thereof to the Company, whichever is later.
43. Remuneration of Directors. A director shall be paid remuneration by
the Company for his services as Director to the extent such remuneration
shall have been approved by a General Meeting of the Company.
44. Conflict of Interests. Subject to the provisions of the Companies
Law, no Director shall be disqualified by virtue of his office from holding
any office or place of profit in the Company or in any company in which the
Company shall be a shareholder or otherwise interested, or from contracting
with the Company as vendor, purchaser or otherwise, nor shall any such
contract, or any contract or arrangement entered into by or on behalf of
the Company in which any Director shall be in any way interested, be
avoided, nor, other than as required under the Companies Ordinance, shall
any Director be liable to account to the Company for any profit arising
from any such office or place of profit or realized by any such contract or
arrangement by reason only of such Director's holding that office or of the
fiduciary relations thereby established, but the nature of his interest, as
well as any material fact or document, must be disclosed by him at the
meeting of the Board of Directors at which the contract or arrangement is
first considered, if his interest then exists, or, in any other case, at no
later than the first meeting of the Board of Directors after the
acquisition of his interest.
45. Alternate Directors. (a) A Director may, by written notice to the
Company given in the manner set forth in article 45(b) below, appoint any
individual as an alternate for himself (in these Articles referred to as
"Alternate Director"), remove such Alternate Director and appoint another
Alternate Director in place of any Alternate Director appointed by him
whose office has been vacated for any reason whatsoever. The appointment of
an Alternate Director shall be subject to the consent of the Board of
Directors. Unless the appointing Director, by the instrument appointing an
Alternate Director or by written notice to the Company, limits such
appointment to a specified period of time or restricts it to a specified
meeting or action of the Board of Directors, or otherwise restricts its
scope, the appointment shall be for all purposes, and for a period of time
concurrent with the term of the appointing Director.
(b) Any notice to the Company pursuant to Article 45(a) shall be given
in person to, or by sending the same by mail to the attention of the
General Manager of the Company at the principal office of the Company or to
such other person or place as the Board of Directors shall have determined
for such purpose, and shall become effective on the date fixed therein, or
upon the receipt thereof by the Company (at the place as aforesaid),
whichever is later, subject to the consent of the Board of Directors if the
appointee is not then a member of the Board of Directors, in which case the
notice will be effective as of the date of such consent.
(c) An Alternate Director shall have all the rights and obligations of
the Director who appointed him, provided however, that (i) he may not in
turn appoint an alternate for himself (unless the instrument appointing him
otherwise expressly provides), and (ii) an Alternate Director shall have no
standing at any meeting of the Board of Directors or any Committee thereof
while the Director who appointed him is present, and (iii) the Alternate
Director is not entitled to remuneration.
(d) Any individual, who qualifies to be a member of the Board of
Directors, may act as an Alternate Director.
(e) An Alternate Director shall alone be responsible for his own acts
and defaults, and he shall not be deemed the agent of the Director(s) who
appointed him.
(f) The office of an Alternate Director shall be vacated under the
circumstances, mutatis mutandis, set forth in Article 42, and such office
shall ipso facto be vacated if the Director who appointed such Alternate
Director ceases to be a Director.
PROCEEDINGS OF THE BOARD OF DIRECTORS
46. Meetings. (a) The Board of Directors may meet and adjourn its
meetings and otherwise regulate such meetings and proceedings as the
Directors think fit.
(b) Any Director may at any time, and the Secretary, upon the request
of such Director, shall, convene a meeting of the Board of Directors, but
not less than seven (7) days' notice shall be given of any meeting so
convened. Notice of any such meeting may be given orally, by telephone, in
writing or by mail, telex, cablegram or facsimile. Notwithstanding anything
to the contrary herein, failure to deliver notice to a director of any such
meeting in the manner required hereby may be waived by such Director, and a
meeting shall be deemed to have been duly convened notwithstanding such
defective notice if such failure or defect is waived prior to action being
taken at such meeting, by all Directors entitled to participate at such
meeting to whom notice was not duly given as aforesaid. Without derogating
from the foregoing, no Director present at the commencement of a meeting of
the Board of Directors shall be entitled to seek the abolishment of any
proceedings or resolutions adopted at such meeting on account of any defect
in the notice of such meeting relating to the time or the place thereof.
47. Quorum. Until otherwise unanimously decided by the Board of
Directors, a quorum at a meeting of the Board of Directors shall be
constituted by the presence in person or by telephone conference of a
majority of the Directors then in office who are lawfully entitled to
participate in the meeting. No business shall be transacted at a meeting of
the Board of Directors unless the requisite quorum is present (in person or
by telephone conference) when the meeting proceeds to business.
48. Chairman of the Board of Directors. The Board of Directors may from
time to time, elect one of its members to be the Chairman of the Board of
Directors, and another of its members as Co-Chairman, remove such Chairman
and Co-Chairman from office and appoint others in their place. The Chairman
of the Board of Directors shall preside at every meeting of the Board of
Directors, but if there is no such Chairman, or if at any meeting he is not
present within fifteen (15) minutes of the time fixed for the meeting or if
he is unwilling to take the chair, the Co-Chairman shall preside. If both
the Chairman and the Co-Chairman are not present or are unwilling to take
the chair the Directors present shall choose one of their number to be the
Chairman of such meeting. Neither the Chairman nor the Co- Chairman shall
have a casting or additional vote.
49. Validity of Acts Despite Defects. All acts done bona fide at any
meeting of the Board of Directors, or of a Committee of the Board of
Directors, or by any person(s) acting as Director(s), shall,
notwithstanding that it may afterwards be discovered that there was some
defect in the appointment of the participants in such meeting or any of
them or any person(s) acting as aforesaid, or that they or any of them were
disqualified, be as valid as if there were no such defect or
disqualification.
CHIEF EXECUTIVE OFFICER AND PRESIDENT
50. Chief Executive Officer and President. (a) The Board of Directors
may from time to time appoint one or more persons, whether or not
Directors, as Chief Executive Officer or Officers, General Manager or
Managers, or President of the Company and may confer upon such person(s),
and from time to time modify or revoke, such titles and such duties and
authorities of the Board of Directors as the Board of Directors may deem
fit, subject to such limitations and restrictions as the Board of Directors
may from time to time prescribe. Unless otherwise determined by the Board
of Directors, the Chief Executive Officer shall have authority with respect
of the management of the Company in the Ordinary course of business. Such
appointment(s) may be either for a fixed term or without any limitation of
time, and the Board of Directors may from time to time (subject to the
provisions of the Companies Ordinance and of any contract between any such
person and the Company) fix his or their salaries and emoluments, remove or
dismiss him or them from office and appoint another or others in his or
their place or places.
(b) Unless otherwise determined by the Board of Directors, the Chief
Executive Officer of the Company shall have the power to appoint other
officers, executives and employees of the Company and determine their
remuneration, provided that the remuneration of the four highest salaried
personnel of the Company shall also be approved by either the Board of
Directors or any of the Audit Committee or the Compensation Committee.
MINUTES
51. Minutes. (a) Minutes of each General Meeting and of each meeting of
the Board of Directors shall be recorded and duly entered in books provided
for that purpose, and shall be held by the Company at its principal office
or its Registered Office or such other place as shall have been determined
by the Board of Directors. Such minutes shall, in all events, set forth the
names of the persons present at the meeting and all resolutions adopted
thereat.
(b) Any minutes as aforesaid, if purporting to be signed by the
chairman of the meeting or by the chairman of the next succeeding meeting,
shall constitute prima facie evidence of the matters recorded therein.
DIVIDENDS
52. Declaration of Dividends. The Board of Directors may from time
declare, and cause the Company to pay, such interim or final dividend as
may appear to the Board of Directors to be justified by the profits of the
Company and as permitted by the Statutes. The Board of Directors shall
determine the time for payment of such dividends, both interim and final,
and the record date for determining the shareholders entitled thereto.
53. Funds Available for Payment of Dividends. No dividend shall be paid
otherwise than out of the profits of the Company.
54. Amount Payable by Way of Dividends. (a) subject to the rights of
the holders of shares as to dividends, any dividend paid by the Company
shall be allocated among the shareholders entitled thereto in proportion to
the sums paid up or credited as paid up on account of the nominal value of
their respective holdings of the shares in respect of which such dividends
are being paid without taking into account the premium paid up for the
shares. The amount paid up on account of a share which has not yet been
called for payment or fallen due for payment and upon which the Company
pays interest to the shareholder shall not be deemed, for the purposes of
this Article, to be a sum paid on account of the share.
(b) Whenever the rights attached to any shares or the terms of issue of
the shares do not provide otherwise, shares which are fully paid up or
which are credited as fully or partly paid within any period which in
respect thereof dividends are paid shall entitle the holders thereof to a
dividend in proportion to the amount paid up or credited as paid up in
respect of the nominal value of such shares and to the date of payment
thereof (pro rata temporis).
55. Interest. No dividend shall carry interest as against the Company.
56. Payment in Specie. Upon the recommendation of the Board of
Directors approved by Ordinary Resolution of the Company, the Company (i)
may cause any moneys, investments, or other assets forming part of the
undivided profits of the Company, standing to the credit of a reserve fund,
or to the credit of a reserve fund for the redemption of capital, or in the
hands of the Company and available for dividends, or representing premiums
received on the issuance of shares and standing to the credit of the share
premium account, to be capitalized and distributed among such of the
shareholders as would be entitled to receive the same if distributed by way
of dividend and in the same proportion, on the footing that they become
entitled thereto as capital, or may cause any part of such capitalized fund
to be applied on behalf of such shareholders in paying up in full, either
at par or at such premium as the resolution may provide, any unissued
shares or debentures or debenture stock of the Company which shall be
distributed accordingly, in payment, in full or in part, of the uncalled
liability on any issued shares or debentures or debenture stock; and (ii)
may cause such distribution or payment to be accepted by such shareholders
in full satisfaction of their interest in the said capitalized sum.
57. Implementation of Powers under Article 56. For the purpose of
giving full effect to any resolution under Article 56, and without
derogating from the provisions of Article 7(b) hereof, the Board of
Directors may settle any difficulty which may arise in regard to the
distribution as it thinks expedient, and, in particular, may issue
fractional certificates, and may fix the value for distribution of any
specific assets, and may determine that cash payments shall be made to any
shareholders upon the footing of the value so fixed, or that fractions of
less value than the nominal value of one share may be disregarded in order
to adjust the rights of all parties, and may vest any such cash, shares,
debentures, debenture stock or specific assets in trustees upon such trusts
for the persons entitled to the dividend or capitalized fund as may seem
expedient to the Board of Directors. Where requisite, a proper contract
shall be filed in accordance with Section 291 of the Companies Law, and the
Board of Directors may appoint any person to sign such contract on behalf
of the persons entitled to the dividend or capitalized fund.
58. Dividends on Unpaid Shares. Without derogating from Article 54
hereof, the Board of Directors may give an instruction which shall prevent
the distribution of a dividend to the holders of shares the full nominal
amount of which has not been paid up.
59. Retention of Dividends. (a) The board of Directors may retain any
dividend or other moneys payable or property distributable in respect of a
share on which the Company has a lien, and may apply the same in or toward
satisfaction of the debts, liabilities, or engagements in respect of which
the lien exists.
(b) The Board of Directors may retain any dividend or other moneys
payable or property distributable in respect of a share in respect of which
any person is, under Articles 21 or 22, entitled to become a shareholder,
or which any person is, under said Articles, entitled to transfer, until
such person shall become a shareholder in respect of such share or shall
transfer the same.
60. Unclaimed Dividends. All unclaimed dividends or other moneys
payable in respect of a share may be invested or otherwise made use of by
the Board of Directors for the benefit of the Company until claimed. The
payment by the Directors of any unclaimed dividend or such other moneys
into a separate account shall not constitute the Company a trustee in
respect thereof. The principal (and only the principal) of any unclaimed
dividend of such other moneys shall be if claimed, paid to a person
entitled thereto.
61. Mechanics of Payment. Any dividend or other moneys payable in cash
in respect of a share may be paid by check or warrant sent through the post
to, or left at, the registered address of the person entitled thereto or by
transfer to a bank account specified by such person (or, if two or more
persons are registered as joint holders of such share or are entitled
jointly thereto in consequence of the death or bankruptcy of the holder or
otherwise, to the joint holder whose name is registered first in the
Register of Shareholders or his bank account or the person who the Company
may then recognize as the owner thereof or entitled thereto under Article
21 or 22 hereof, as applicable, or such person's bank account), or to such
person and at such other address as the person entitled thereto may by
writing direct. Every such check or warrant shall be made payable to the
order of the person to whom it is sent, or to such person as the person
entitled thereto as aforesaid may direct, and payment of the check or
warrant by the banker upon whom it is drawn shall be a good discharge to
the Company.
62. Receipt from a Joint Holder. If two or more persons are registered
as joint holders of any share, or are entitled jointly thereto in
consequence of the death or bankruptcy of the holder or otherwise, any one
of them may give effectual receipts for any dividend or other moneys
payable or property distributable in respect of such share.
ACCOUNTS
63. Books of Account. The Board of Directors shall cause accurate books
of account to be kept in accordance with the provisions of the Companies
Ordinance and of any other applicable law. Such books of account shall be
kept at the Registered Office of the Company, or at such other place or
places as the Board of Directors may think fit, and they shall always be
open to inspection by all Directors. No shareholder, not being a Director,
shall have any right to inspect any account or book or other similar
document of the Company, except as conferred by law or authorized by the
Board of Directors or by Ordinary Resolution of the Company.
64. Audit. At least once in every fiscal year the accounts of the
Company shall be audited and the correctness of the profit and loss account
and balance sheet certified by one or more duly qualified auditors.
65. Auditors. The appointment, authorities, rights and duties of the
auditor(s) of the Company, shall be regulated by applicable law, provided,
however, that in exercising its authority to fix the remuneration of the
auditor(s), the shareholders in General Meeting may, by Ordinary
Resolution, act (and in the absence of any action in connection therewith
shall be deemed to have so acted) to authorize the Board of Directors to
fix such remuneration subject to such criteria or standards, and if no such
criteria or standards are so provided, such remuneration shall be fixed in
an amount commensurate with the volume and nature of the services rendered
by such auditor(s).
SUPPLEMENTARY REGISTERS
66. Supplementary Registers. Subject to and in accordance with the
provisions of Sections 138 to 139, inclusive, of the Companies Law and to
all orders and regulations issued thereunder, the Company may cause
supplementary registers to be kept in any place outside Israel as the Board
of Directors may think fit, and, subject to all applicable requirements of
law, the Board of Directors may from time to time adopt such rules and
procedures as it may think fit in connection with the keeping of such
branch registers.
67. [Reserved]
EXEMPTION, INDEMNITY AND INSURANCE
68. Exemption. The Company may exempt any Office Holder from his or her
liability to the Company for breach of duty of care, to the maximum extent
permitted by law, before or after the occurrence giving rise to such
liability.
68A. Indemnification. (a) The Company may undertake with any Office
Holder to indemnify such Office Holder, to the maximum extent permitted by
law, against any liabilities he or she may incur in such capacity, provided
that such undertaking is limited (i) with respect to categories of events
that can be expected as determined by the Board of Directors when
authorizing such undertaking, and (ii) with respect to such amounts
determined by the Board of Directors as reasonable in the circumstances.
(b) The Company may indemnify any past or present Office Holder, to the
maximum extent permitted by law, with respect to any past occurrence,
whether or not the Company is obligated under any agreement to indemnify
such Office Holder in respect of such occurrence.
68B. Insurance. The Company may procure, and/or undertake to procure,
insurance covering any past or present Office Holder against any liability
which he or she may incur in such capacity, including the Company for
indemnifying such Office Holder, to the maximum extent permitted by law.
68C. Limitations on Exemption, Indemnity and Insurance. Articles 68,
68A and 68B above notwithstanding, the Company shall not procure insurance,
indemnify or exempt any Office Holder with respect to the events described
in Subsections 263(1) through 263(4) of the Companies Law or any successor
or amendment thereof, as may from time to time be in effect.
WINDING UP
69. Winding Up. If the Company is wound up, then, subject to applicable
law and to the rights of the holders of shares with special rights upon
winding up. The assets of the Company available for distribution among the
shareholders shall be distributed to them in proportion to the nominal
value of their respective holdings of the shares in respect of which such
distribution is being made.
MERGERS
69A. Approval of Merger. Notwithstanding Section 327 of the Companies
Law, the Company may approve any merger under Part Eight, Chapter One of
the Companies Law by an Ordinary Resolution.
RIGHTS OF SIGNATURE, STAMP AND SEAL
70. Rights of Signature, Stamp and Seal. (a) The Board of Directors
shall be entitled to authorize any person or persons (who need not be
Directors) to act and sign on behalf of the Company, and the acts and
signature of such person(s) on behalf of the Company shall bind the Company
insofar as such person(s) acted and signed within the scope of his or their
authority.
(b) The Board of Directors may provide for a seal. If the Board of
Directors so provides, it shall also provide for the safe custody thereof.
Such seal shall not be used except by the authority of the Board of
Directors and in the presence of the person(s) authorized to sign on behalf
of the Company, who shall sign every instrument to which such seal is
affixed.
(c) The Company may exercise the powers conferred by Section 102 of the
Companies Ordinance regarding a seal for use abroad, and such powers shall
be vested in the Board of Directors.
NOTICES
71. Notices. (a) Any written notice or other document may be served by
the Company upon any shareholder either personally or by sending it by
prepaid mail (airmail if sent internationally) addressed to such
shareholder at his address as described in the Register of Shareholders or
such other address as he may have designated in writing for the receipt of
notices and other documents. Any written notice or other document may be
served by any shareholder upon the Company by tendering the same in person
to the Secretary or the General Manager of the Company at the principal
office of the Company or by sending it by prepaid registered mail (airmail
if posted outside Israel) to the Company at its Registered Office. Any such
notice or other document shall be deemed to have been served forty-eight
(48) hours after it has been posted (seven (7) business days if sent
internationally), or when actually received by the addressee if sooner than
forty-eight hours or seven days, as the case may be, after it has been
posted, or when actually tendered in person, to such shareholder (or to the
Secretary or the General Manager). Notice sent by cablegram, telex, or
facsimile shall be deemed to have been served two business days after the
notice is so sent to such shareholder (or by the Company). If a notice is,
in fact, received by the addressee, it shall be deemed to have been duly
served, when received, notwithstanding that it was defectively addressed or
failed, in some other respect, to comply with the provisions of this
Article 71(a).
(b) All notices to be given to the shareholders shall, with respect to
any share to which persons are jointly entitled, be given to whichever of
such persons is named first in the Register of Shareholders, and any notice
so given shall be sufficient notice to the holders of such share.
(c) Any shareholder whose address is not described in the Register of
Shareholders, and who shall not have designated in writing an address for
the receipt of notices, shall not be entitled to receive any notice from
the Company.
(d) Notwithstanding anything to the contrary contend herein, notice by
the Company of a General Meeting which is published in at least two daily
newspapers in the State of Israel within the time otherwise required for
giving notice of such meeting under Article 25 hereof and containing the
information required to be set forth in such notice under such Article,
shall be deemed to be notice of such meeting duly given, for purposes of
these Articles, to any shareholder whose address as registered in the
Register of Shareholders is located in the State of Israel.
* * * *
