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Exhibit 3.3
ARTICLES OF ASSOCIATION
Under section 15 of the Companies Law, 1999
of
RADVIEW SOFTWARE LTD.
A limited liability company
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GENERAL
1. DEFINITION AND INTERPRETATION
1.1. The following terms in these Articles of Association shall have the
respective meanings ascribed to them below:
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ARTICLES The Articles of Association of the Company,
as set forth herein or as amended.
BOARD The Board of Directors of the Company.
BUSINESS DAY Sunday to Thursday, inclusive, with the
exception of holidays and officials days of rest in
the State of Israel.
COMPANIES LAW The Companies Law, 1999, as may be amended
from time to time.
COMPANIES REGULATIONS Regulations issued pursuant to the Companies Law.
COMPANY Radview Software Ltd.
DIRECTOR A Director of the Company in accordance with the
definition of the Companies Law.
GENERAL MEETING A general meeting of the Shareholders of the Company.
LAW The provisions of any law ("din") as defined in the
Interpretation Law, 1981.
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ORDINARY MAJORITY More than fifty percent (50%) of the votes of the
Shareholders who are entitled to vote and who actually
voted in a General Meeting in person, by means
of proxy or by means of a deed of vote.
SECURITIES Shares, bonds, capital notes or securities
convertible, exchangeable or exercisable into shares,
and certificates conferring a right in such securities,
issued by the Company.
SECURITIES LAW The Securities Law, 1968.
SECURITIES REGULATIONS Regulations issued pursuant to the Securities
Law.
SHAREHOLDER Anyone registered as a shareholder in the
Shareholder Register of the Company.
SIGNIFICANT SHAREHOLDER A Shareholder who holds five percent (5%) or more
of the Company's issued share capital or of
the voting rights in the Company.
SPECIAL MAJORITY A majority of at least three quarters of the Shareholders
who are entitled to vote and who actually voted in a General
Meeting in person, by means of a proxy or by means of a deed
of vote.
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1.2. Unless the subject or the context otherwise requires, each word and
expression not specifically defined herein and defined in the Companies
Law as in effect on the date when these Articles first became effective
shall have the same meaning herein, and to the extent that no meaning is
attached to it in the Companies Law, the meaning ascribed to it in the
Companies Regulations, and if no meaning is ascribed thereto in the
Companies Regulations, the meaning ascribed to it in the Securities Law or
Securities Regulations; words and expressions importing the singular shall
include the plural and vice versa; words and expressions importing the
masculine gender shall include the feminine gender; and words and
expressions importing persons shall include corporate entities.
1.3. The captions in these Articles are for convenience only and shall not be
deemed a part hereof or affect the construction of any provision hereof.
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2. PUBLIC COMPANY
The Company is a public company.
3. THE PURPOSE OF THE COMPANY
The purpose of the Company is to operate in accordance with business
considerations to generate profits; provided, however, that the Company
may donate reasonable amounts to worthy causes, as the Board may determine
in its discretion, even if such donations are not within the framework of
business considerations.
4. RESERVED.
5. LIMITED LIABILITY
The liability of the Shareholders of the Company is limited, each one up
to the full amount he undertook to pay for the shares of the Company
allotted to him.
SHARE CAPITAL
6. SHARE CAPITAL
The registered share capital of the Company is two hundred and fifty
thousand New Israeli Shekels (NIS 250,000), divided into twenty-five
million (25,000,000) ordinary shares of a nominal value of One Agora (NIS
0.01) each (the "ORDINARY SHARES").
7. INCREASE OF REGISTERED SHARE CAPITAL
7.1. The Company may, from time to time, by a resolution of the General
Meeting adopted by an Ordinary Majority, whether or not all the shares
then registered have been issued, and whether or not all the shares
theretofore issued have been called up for payment, increase its
registered share capital by the creation of new shares. 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
resolution of the General Meeting shall provide.
7.2. Except to the extent otherwise provided in such resolution of the
General Meeting, such new shares shall be subject to all the provisions
applicable to the shares of the original capital.
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8. SPECIAL RIGHTS; MODIFICATIONS OF RIGHTS
8.1. The rights attached to any class of unissued shares, unless otherwise
provided by these Articles, may be modified or abrogated by the Company
by a resolution of the General Meeting adopted by an Ordinary Majority.
8.2. The rights attached to any class of issued shares, unless otherwise
provided by these Articles, may be modified or abrogated by the Company
by a resolution of the General Meeting adopted by an Ordinary Majority,
provided that any modification that would directly alter the rights
attached to such class shall require the consent in writing of the
holders of more than fifty percent (50%) of the issued shares of such
class or a resolution of a separate General Meeting of the holders of
the shares of such class adopted by an Ordinary Majority.
8.3. Unless otherwise provided by these Articles, the increase of the
registered number of shares of an existing class of shares, or the
issuance of additional shares thereof, shall not be deemed, for purposes
of this Article 8, to alter the rights attached to the previously issued
shares of such class or of any other class.
8.4. Subject to the provisions of the Memorandum of Association of the
Company, and these Articles, when effecting an increase of the
registered share capital under Article 7, or when modifying rights of
shares under Article 8, the Company may 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 the
adopted resolutions.
9. CONSOLIDATION, SUBDIVISION, CANCELLATION AND REDUCTION OF SHARE CAPITAL
9.1. The Company may, from time to time, by a resolution of the General
Meeting adopted by an Ordinary Majority (subject, however, to the
provisions of Article 8.2 hereof and to the Companies Law):
(One) Consolidate and divide all or any of its issued or unissued
share capital into shares of larger nominal value than its
existing shares;
(Two) Subdivide its shares (issued or unissued) or any of them,
into shares of smaller nominal value than is fixed by these
Articles (subject to the provisions of the Companies Law), and
the resolution whereby any share is subdivided may determine
that, as among the holders of the shares resulting from such
subdivision, one or more of the shares may, as compared with the
others, have any such preferred or deferred rights or rights of
redemption or other special rights, or be subject to any such
restrictions, as the Company has power to attach to unissued or
new shares.
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(Three) Cancel any shares which, at the date of the adoption
of such resolution of the General Meeting, have not been alloted,
so long as the Company is not under an obligation to allot these
shares, and reduce the amount of its registered share capital by
the amount of the shares so cancelled; or
(Four) Reduce its share capital in any manner, and with and
subject to any incident authorized, and consent required, by Law.
9.2. With respect to any consolidation of issued shares into shares of larger
nominal value, and with respect to any other action which may result in
fractional shares, the Board may settle any difficulty which may arise
with regard thereto, as it deems appropriate, including, INTER ALIA,
resort to one or more of the following actions:
(One) Determine, as to the holder of shares so consolidated, which
issued shares shall be consolidated into each share of larger
nominal value;
(Two) Allot, in contemplation of or subsequent to such
consolidation or other action, such shares or fractional shares
sufficient to preclude or remove fractional share holdings;
(Three) Redeem, in the case of redeemable shares, and
subject to applicable Law, such shares or fractional shares
sufficient to preclude or remove fractional share holdings;
(Four) Cause the transfer of fractional shares by certain
Shareholders to other Shareholders thereof so as to most
expediently preclude or remove any fractional shareholdings, and
cause the transferees to pay the transferors the fair value of
fractional shares so transferred, and the Board is hereby
authorized to act as agent for the transferors and transferees
with power of substitution for purposes of implementing the
provisions of this Article 9.2 (d).
SHARES
10. ISSUANCE OF SHARE CERTIFICATES; REPLACEMENT OF LOST CERTIFICATES
10.1. The Company shall maintain a Shareholder Register and a Register of
Significant Shareholders, to be administered by the Chief Financial
Officer of the Company, subject to the oversight of the Board.
10.2. Share certificates shall bear the signatures, including facsimile
signature, of one Director and the corporate secretary, or of two
Directors, or of any other person or persons authorized thereto by the
Board.
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10.3. Each Shareholder shall be entitled to one numbered certificate for all
the shares of any class registered in his name, and if the Board so
approves, to several certificates, each for one or more of such shares.
Each certificate may specify the serial numbers of the shares
represented thereby and may also specify the amount paid up thereon.
10.4. A share certificate registered in the names of two or more persons shall
be delivered to the person first named in the Shareholder Register in
respect of such co-ownership.
10.5. If a share certificate is defaced, lost or destroyed, it may be
replaced, upon payment of such fee, and upon the furnishing of such
evidence of ownership and such indemnity, as the Board may deem
appropriate.
11. REGISTERED HOLDER
Except as otherwise provided in these Articles, the Company shall be
entitled to treat the registered holder of any share as the absolute owner
thereof, and, shall be entitled to treat the holder of any share in trust
as a Shareholder and to issue to him a share certificate, in condition
that the trustee notify the Company of the identity of the beneficiary,
and, accordingly, shall not, except as ordered by a court of competent
jurisdiction, or as required by Law, be bound to recognize any equitable
or other claim to, or interest in, such share on the part of any other
person.
12. ISSUANCE OF SHARES AND OTHER SECURITIES
12.1. The unissued shares from time to time shall be under the control of the
Board, who shall have the power to allot shares or otherwise dispose of
them to such persons, on such terms and conditions (including INTER ALIA
terms relating to calls as set forth in Article 14 hereof), and either
at par or at a premium, or, subject to the provisions of the Companies
Law, at a discount, and at such times, as the Board may deem
appropriate, 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, during such time and for such consideration
as the Board may deem appropriate.
12.2. The Board may determine to issue a series of bonds or other debt
securities, as part of its authority or to take a loan on behalf of the
Company.
12.3. The Shareholders of the Company at any given time shall not have any
preemptive right or priority or any other right whatsoever with respect
to the acquisition of Securities of the Company. The Board, in its sole
discretion, may decide to offer Securities of the Company first to
existing Shareholders or to any one or more of them.
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12.4. The Company is entitled to pay a commission (including underwriting
fees) to any person, in consideration for underwriting services, or the
marketing or distribution of Securities of the Company, whether reserved
or unreserved, as determined by the Board. Payments, as stated in this
Article 12.4, may be paid in cash or in Securities of the Company, or in
a combination thereof.
13. PAYMENT IN INSTALLMENTS
If by the terms of issuance of any share, the whole or any part of the
price thereof shall be payable in installments, every such installment
shall, when due, be paid to the Company by the then registered holder(s)
of the share or the person(s) entitled thereto.
14. CALLS ON SHARES
14.1. The Board may, from time to time, make such calls as it may deem
appropriate upon Shareholders in respect of any sum unpaid in respect of
shares held by such Shareholders which is not, by the terms of allotment
thereof 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, as
any such time(s) may be thereafter extended and/or such person(s) or
place(s) changed. Unless otherwise stipulated in the resolution of the
Board (and in the notice referred to in Article 14.2), each payment in
response to a call shall be deemed to constitute a pro rata payment on
account of all shares in respect of which such call was made.
14.2. Notice of any call shall be given in writing to the applicable
Shareholder(s) not less than fourteen (14) days prior to the time of
payment, specifying the time and place of payment, and designating the
person to whom and the place where such payment shall be made; provided,
however, that before the time for any such payment, the Board may, by
notice in writing to such Shareholder(s), revoke such call in whole or
in part, extend such time, or alter such designated person and/or place.
In the event of a call payable in installments, only one notice thereof
need be given.
14.3. If, by the terms of allotment of any share or otherwise, any amount is
made payable at any fixed time, every such amount shall be payable at
such time as if it were a call duly made by the Board and of which due
notice had been given, and all the provisions herein contained with
respect to calls shall apply to each such amount.
14.4. The joint holders of a share shall be jointly and severally liable to
pay all calls in respect thereof and all interest payable thereon.
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14.5. Any amount unpaid in respect of a call shall bear interest from the date
on which it is payable until actual payment thereof, at such rate (not
exceeding the then prevailing debitory rate charged by leading
commercial banks in Israel), and at such time(s) as the Board may
prescribe.
14.6. Upon the allotment of shares, the Board may provide for differences
among the allottees of such shares as to the amount of calls and/or the
times of payment thereof.
15. PREPAYMENT
With the approval of the Board, any Shareholder may pay to the Company any
amount not yet payable in respect of his shares, and the Board may approve
the payment 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. The Board 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 15 shall derogate from the right of the
Board to make any call before or after receipt by the Company of any such
advance.
16. FORFEITURE AND SURRENDER
16.1. If any Shareholder fails to pay any amount payable in respect of a call,
or interest thereon as provided herein, on or before the day fixed for
payment of the same, the Company, by resolution of the Board, may at any
time thereafter, so long as such amount or interest remains unpaid,
forfeit all or any of the shares in respect of which such call had been
made. Any expense incurred by the Company in attempting to collect any
such amount or interest, including, INTER ALIA, attorneys' fees and
costs of suit, 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.
16.2. Upon the adoption of a resolution of forfeiture, the Board shall cause
notice thereof to be given to the Shareholder whose shares are the
subject of such forfeiture, which notice shall state that, in the event
of the failure to pay the entire amount so payable within a period
stipulated in the notice (which period shall not be less than fourteen
(14) days and which may be extended by the Board), such shares shall be
IPSO FACTO forfeited, provided, however, that, prior to the expiration
of such period, the Board may nullify such resolution of forfeiture, but
no such nullification shall estop the Board from adopting a further
resolution of forfeiture in respect of the non-payment of such amount.
16.3. Whenever shares are forfeited as herein provided, all distributions
theretofore declared in respect thereof and not actually paid or
distributed shall be deemed to have been forfeited at the same time.
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16.4. The Company, by resolution of the Board, may accept the voluntary
surrender of any share.
16.5. 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 deems appropriate.
16.6. 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 14.5
above, and the Board, in its discretion, may enforce the payment of such
moneys, or any part thereof, but shall not be under any obligation to do
so. In the event of such forfeiture or surrender, the Company, by
resolution of the Board, may accelerate the date(s) of payment of any or
all amounts then owing by the Shareholder in question (but not yet due)
in respect of all shares owned by such Shareholder, solely or jointly
with another, and in respect of any other matter or transaction
whatsoever.
16.7. The Board 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 appropriate, but
no such nullification shall estop the Board from re-exercising its
powers of forfeiture pursuant to this Article 16.
17. LIEN
17.1. 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 which are not fully paid up
(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, securing any sum unpaid in respect of such shares, whether
the period for the payment, fulfillment or discharge of such unpaid sums
shall have actually arrived or not. Such lien shall extend to all
distributions from time to time declared in respect of such shares.
17.2. The Board may cause the Company to sell any shares subject to such lien
when any such debt, liability or engagement has matured, in such manner
as the Board may deem appropriate, 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 Company's intention to
sell shall have been served on such Shareholder, his executors or
administrators.
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17.3. 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 (whether or not the same have matured),
or any specific part of the same, as the Board may determine, and the
balance, if any, shall be paid to the Shareholder, his executors,
administrators or assigns.
18. SALE AFTER FORFEITURE OR SURRENDER OR IN ENFORCEMENT OF LIEN
Upon any sale of shares after forfeiture or surrender or for enforcing a
lien, the Board may appoint a person to execute an instrument of transfer
of the shares so sold and cause the purchaser's name to be entered in the
Shareholder Register in respect of such shares, and the purchaser shall
not be bound to see to the regularity of the proceedings, or to the
application of the purchase money, and after his name has been entered in
the Shareholder Register in respect of such shares, the validity of the
sale shall not be impeached by any person, and the remedy of any person
aggrieved by the sale shall be in damages only and against the Company
exclusively.
19. REDEEMABLE SHARES
The Company may, subject to applicable Law, issue redeemable shares and
redeem the same.
20. TRANSFER OF SHARES
20.1. The shares of the Company are freely transferable. However, no transfer
of shares shall be registered unless the Company receives a deed of
transfer or other proper instrument of transfer, in form and substance
satisfactory to the Board, together with the share certificate(s) and
such other evidence of title as the Board may reasonably require. Until
the transferee has been registered in the Shareholder Register in
respect of the shares so transferred, the Company may continue to regard
the transferor as the owner thereof. The Board may, from time to time,
prescribe a fee for the registration of a transfer. A deed of transfer
shall be in the following form or in any substantially similar form,
including any such form as is acceptable to the transfer agent for the
Company's shares, or in any form otherwise approved by the Board.
DEED OF TRANSFER
I, _________, (the "TRANSFEROR") of ________________, do hereby
transfer, in consideration for _____________, to ______________ (the
"TRANSFEREE"), ______________share(s) NIS 0.01 par value each of
Radview Software Ltd. (the "COMPANY") to be held by the Transferee
and/or his executors, administrators and assigns, subject to the same
terms and
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conditions under which I held the same at the time of execution
hereof; and I, the said Transferee, do hereby agree to take the said
share(s) subject to the conditions aforesaid.
In witness whereof we hereby execute this Deed of Transfer, this __
day of ______, 20__.
The Transferor: The Transferee:
Name:________________ Name: _________________
_____________________
Signature: __________ Signature: ______________
_____________________
20.2. Upon the death of a Shareholder, the Company shall recognize the
custodian or administrator of the estate or executor of the will, and in
the absence of such, the lawful heirs of the Shareholder, as the only
holders of the right for the shares of the deceased Shareholder, after
receipt of evidence to the entitlement thereto, as determined by the
Board.
20.3. The Company may recognize the receiver or liquidator of any corporate
Shareholder in liquidation or dissolution, or the receiver or trustee in
bankruptcy of any Shareholder, as being entitled to the shares
registered in the name of such Shareholder, after receipt of evidence to
the entitlement thereto, as determined by the Board.
20.4. A person acquiring a right in shares as a result of being a custodian,
administrator of the estate, executor of a will or the heir of a
Shareholder, or a receiver, liquidator or a trustee in a bankruptcy of a
Shareholder or according to another provision of Law, is entitled, after
providing evidence of his right to the satisfaction of the Board, to be
registered as the Shareholder or to transfer such shares to another
person, subject to the provisions of this Article 20.
21. BEARER SHARE CERTIFICATES
The Company shall not issue bearer share certificates which grant the
bearer rights in the shares specified therein.
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GENERAL MEETINGS
22. THE AUTHORITY OF THE GENERAL MEETING
22.1. MATTERS WITHIN THE AUTHORITY OF THE GENERAL MEETING
The following matters shall require the approval of the General Meeting:
22.1.1. Amendments to the Articles.
22.1.2. The exercise by the General Meeting of the authority of the Board,
subject to the provisions of the Companies Law, if it is resolved
that the Board is incapable of exercising its authority, and that
the exercise of such authority is essential to the orderly
management of the Company.
22.1.3. The appointment or reappointment of the Company's auditor, and the
termination or non-renewal of his service.
22.1.4. The election of Directors (except as specifically set forth
otherwise in these Articles), including external Directors, in
accordance with Article 45.3 hereof.
22.1.5. To the extent required by the provisions of the Companies Law, the
approval of actions and transactions with interested parties and the
approval of an action or a transaction of an Office Holder (as
defined in Article 62) which might constitute a breach of the duty
of loyalty.
22.1.6. Changes in the share capital of the Company, as set forth in
Articles 7, 8 and 9 hereof.
22.1.7. A merger of the Company, as defined in the Companies Law.
22.1.8. A liquidation of the Company.
22.1.9. Distribution of dividends, as set forth in Article 60.2.
22.1.10. Any other matters which the Companies Law requires to be dealt
with at the General Meeting of the Company, or any matters which
were given to the General Meeting in these Articles.
22.2. The General Meeting shall not transfer to another organ of the Company
any of its authorities detailed in Article 22.1 above.
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22.3. The General Meeting, by a resolution adopted by an Ordinary Majority,
may assume the authority which is given to another organ of the Company;
provided however, that such taking of authorities shall be with regard
to a specific issue or for a specific period of time, all as stated in
the resolution of the General Meeting regarding such taking of
authorities.
23. ANNUAL MEETING
23.1. 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. These
General Meetings shall be referred to as "ANNUAL MEETINGS."
23.2. An Annual Meeting shall be convened to discuss the following issues:
23.2.1. The financial statements of the Company, as of the end of the
fiscal year preceding the year of the Annual Meeting, and the report
of the Board with respect thereto.
23.2.2. The report of the Board with respect to the fee paid to the
Company's auditor.
23.2.3. The election of Directors in accordance with Article 45 below.
23.3. The agenda at an Annual Meeting may include the following issues, in
addition to those referred to in Article 23.2:
23.3.1. The appointment of an auditor or the renewal of his office.
23.3.2. Any other issue which was detailed in the agenda for the Annual
Meeting.
24. EXTRAORDINARY MEETINGS
24.1. All General Meetings other than Annual Meetings shall be referred to as
"EXTRAORDINARY MEETINGS." An Extraordinary Meeting shall discuss and
decide in all matters which are not discussed and decided in the Annual
Meeting, and for which the Extraordinary Meeting was convened.
24.2. The Board may, whenever it deems appropriate, convene an Extraordinary
Meeting at such time and place, within or without the State of Israel,
as may be determined by the Board, and shall be obliged to do so upon
the demand of one of the following:
24.2.1. Any two Directors or a quarter of the Directors, whichever is
lower; or
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24.2.2 Any one or more Shareholders, holding alone or together at least
five percent (5%) of the issued share capital of the Company.
24.3. The Board, upon demand to convene an Extraordinary Meeting in accordance
with Article 24.2 above, shall announce the convening of the General
Meeting within twenty one (21) days from the receipt of a demand in that
respect; provided, however, that the date fixed for the Extraordinary
Meeting shall not be more than thirty five (35) days from the
publication date of the announcement of the Extraordinary Meeting, or
such other period as may be permitted by the Companies Law or Companies
Regulations.
25. CLASS MEETINGS
The provisions of these Articles with respect to General Meetings shall
apply, MUTATIS MUTANDIS, to meetings of the holders of a class of shares
of the Company (hereinafter: "CLASS MEETINGS"); provided, however, that
the requisite quorum at any such Class Meeting shall be one or more
Shareholders present in person, by proxy or by deed of vote, and holding
together not less than fifty percent (50%) of the issued shares of such
class.
26. NOTICE OF GENERAL MEETINGS
26.1. Unless a shorter period is permitted by Law (provided that such period
is not less than seven (7) days prior to the date fixed for the General
Meeting), a notice of a General Meeting shall be sent to each
Shareholder of the Company registered in the Shareholder Register and
entitled to attend and vote at such meeting, at least twenty one (21)
days prior to the date fixed for the General Meeting. Subject to the
provisions of any Law, each such notice shall specify the place, the day
and hour of the meeting, the agenda of the meeting, the proposed
resolution(s) or a concise description thereof, the type of the meeting,
the required majority, the determining date with respect to
participation and voting, the telephone number and the address of the
Company's offices and the dates when it is possible to browse the full
text of the resolutions, and the arrangements for voting by means of a
proxy and, if applicable, a deed of vote. Anything herein to the
contrary notwithstanding, with the written consent of all Shareholders
entitled to vote thereon, a resolution may be proposed and passed at
such meeting although a shorter notice than hereinabove prescribed has
been given. A waiver by a Shareholder can also be made in writing after
the fact and even after the convening of the General Meeting.
26.2. Notwithstanding anything to the contrary herein, notice by the Company
of a General Meeting may be effected, in addition to any means provided
in these Articles, by any other means permitted by, and in accordance
with the requirements of, the Companies Law or Companies Regulations.
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26.3. Any accidental omission with respect to the giving of a notice of a
General Meeting to any Shareholder or the non-receipt of a notice with
respect to a meeting or any other notice on the part of any Shareholder
shall not cause the cancellation of a resolution adopted at that
meeting, or the cancellation of acts based on such notice.
PROCEEDINGS AT GENERAL MEETINGS
27. THE AGENDA OF GENERAL MEETINGS
27.1. The agenda of General Meetings shall be determined by the Board and
shall also include issues for which an Extraordinary Meeting is being
convened in accordance with Article 24 above, or as may be required upon
the request of Shareholders in accordance with the provisions of the
Companies Law.
27.2. The General Meeting shall only adopt resolutions on issues which are
on its agenda.
27.3. The General Meeting is entitled to accept or reject a proposed
resolution which is on the agenda of the General Meeting. Subject to
applicable Law, the General Meeting may adopt a resolution which is
different from the description thereof included in the notice of the
General Meeting, provided that such resolution is not materially
different from the proposed resolution.
28. QUORUM
28.1. No business shall be transacted at a General Meeting, or at any
adjournment thereof, unless a lawful quorum is present when the meeting
proceeds to business.
28.2. Subject to the requirements of the Companies Law, the rules of Nasdaq
National Market and any other exchange on which the Company's securities
are or may become quoted or listed, and the provisions of these
Articles, any two or more Shareholders (not in default in payment of any
sum referred to in Article 14 hereof), present in person or by proxy, or
who have delivered to the Company a deed of vote indicating their manner
of voting, and who hold or represent in the aggregate at least thirty
three and one third percent (33 1/3%) of the voting power of the
Company, shall constitute a lawful quorum at General Meetings. A
Shareholder or his proxy, who also serves as a proxy for other
Shareholder(s), shall be regarded as two or more Shareholders, in
accordance with the number of Shareholders he is representing.
28.3. If within 30 minutes from the time appointed for the General Meeting a
quorum is not present, the meeting, if convened by the Board upon demand
under Article 24.2 or, if not convened by the Board, if convened by the
demanding Shareholder(s) in accordance with the provisions of the
Companies Law, shall be dissolved, but in any other case it shall stand
adjourned to the same day in the
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16
next week (or the first Business Day thereafter), 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 a majority of the voting
power represented at the meeting in person or by proxy or by deed of
vote and voting on the question of adjournment, or, if a specific date
for an adjournment of the General Meeting was specified in the notice of
such General Meeting, to such date. 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, any two (2) Shareholders (not in default as aforesaid) present
in person or by proxy or by deed of vote, shall constitute a lawful
quorum.
29. CHAIRMAN
The Chairman of the Board shall preside as Chairman at every General
Meeting. If there is no such Chairman, or if the Chairman is not present
within fifteen (15) minutes after the time fixed for holding such
meeting or is unwilling to act as Chairman, the Shareholders present
shall choose someone of their number or any other person to be Chairman.
The position 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 proxy,
respectively).
30. ADJOURNED MEETING
A General Meeting at which a lawful quorum is present (hereinafter: "THE
ORIGINAL GENERAL MEETING"), may resolve by an Ordinary Majority to
adjourn the General Meeting, from time to time, to another time and/or
place (hereinafter: an "ADJOURNED MEETING"). In the event that a General
Meeting is adjourned for twenty one (21) days or more, a notice of the
Adjourned Meeting shall be given in the same manner as the notice of the
Original General Meeting. With the exception of the aforesaid, a
Shareholder shall not be entitled to receive a notice of an Adjourned
Meeting or of the issues which are to be discussed in the Adjourned
Meeting. The Adjourned Meeting shall only discuss issues that could have
been discussed at the Original General Meeting, and with respect to
which no resolution was adopted.
31. ADOPTION OF RESOLUTIONS AT GENERAL MEETINGS
31.1. All resolutions of the General Meeting, including those with respect to
the matters detailed in Article 22.1, shall be adopted by an Ordinary
Majority, except with respect to Article 22.1.8 which resolution shall
be adopted by a Special Majority, or any other matters with respect to
which a greater majority is required by these Articles or by the
Companies Law.
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17
31.2. Every matter submitted to a General Meeting shall be decided by a show
of hands, but if a written ballot is demanded by any Shareholder present
in person, by proxy or by deed of vote and entitled to vote at the
meeting, the same shall be decided by such ballot. A written ballot may
be demanded before the proposed resolution is voted upon or immediately
after the declaration by the Chairman of the results of the vote by a
show of hands. If a vote by written ballot is taken after such
declaration, the results of the vote by a show of hands shall be of no
effect, and the proposed resolution shall be decided by such written
ballot. The demand for a written ballot may be withdrawn at any time
before the same is conducted, in which event another Shareholder may
then demand such written ballot. The demand for a written ballot shall
not prevent the continuance of the meeting for the transaction of
business other than the question on which the written ballot has been
demanded.
31.3. A declaration by the Chairman of the meeting that a resolution has been
adopted unanimously, or adopted by a particular majority, or rejected,
and an entry to that effect in the minute book of the Company, shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favor of or against such resolution.
32. 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, facsimile or
otherwise), or their oral consent by telephone (provided that a written
summary thereof has been approved and signed by the Chairman of the
Board) shall be deemed to have been unanimously adopted by a General
Meeting duly convened and held. Such resolution could be stated in
several counterparts of the same document, each of them signed by one
Shareholder or by several Shareholders.
33. VOTING POWER
Subject to the provisions of Article 34.1 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, on every resolution, without regard to whether the vote
thereon is conducted in person, by proxy or by deed of vote, by a show
of hands, by written ballot or by any other means.
34. VOTING RIGHTS
34.1. No Shareholder shall be entitled to vote at any General Meeting (or be
counted as a part of the lawful quorum thereat), unless all calls and
other sums then payable by him in respect of his shares in the Company
have been paid, but this Article shall not apply to Class Meetings
pursuant to Article 25.
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18
34.2. A company or other corporate entity being a Shareholder of the Company
may, by resolution of its directors or any other managing body thereof,
authorize any person to be its representative at any General Meeting.
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
General Meeting, written evidence of such authorization, in form
acceptable to the Chairman, shall be delivered to him.
34.3. Any Shareholder entitled to vote may vote either personally (or, if the
Shareholder is a company or other corporate entity, by a representative
authorized pursuant to Article 34.2) or by proxy (subject to Article 37
below), or by deed of vote in accordance with Article 40 below.
34.4. If two or more persons are registered as joint holders of any share, the
vote of the senior who tenders a vote, in person, by proxy or by deed of
vote, shall be accepted to the exclusion of the vote(s) of the other
joint holder(s), and for this purpose seniority shall be determined by
the order in which the names stand in the Shareholder Register.
35. THE DETERMINING DATE WITH RESPECT TO PARTICIPATION AND VOTING
The Shareholders who are entitled to participate and vote at a General
Meeting shall be those Shareholders who are registered in the
Shareholder Register of the Company on the date determined by the Board,
provided that such date not be more than forty (40) days, nor less than
four (4) days, prior to the date of the General Meeting, except as
otherwise permitted by the Companies Regulations.
36. PERSONAL INTEREST IN RESOLUTION
36.1. A Shareholder seeking to vote with respect to a resolution which
requires that the majority for its adoption include at least a certain
percentage of the votes of all those not having a personal interest (as
defined in the Companies Law) in the resolution, shall notify the
Company at least two (2) Business Days prior to the date of the General
Meeting, whether or not he has a personal interest in the resolution, as
a condition for his right to vote and be counted with respect to such
resolution.
36.2. A Shareholder voting on a resolution, as aforesaid, by means of a deed
of vote or a deed of authorization of a proxy, may include his notice
with respect to his personal interest on the deed of vote or deed of
authorization, as the case may be.
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19
PROXIES
37. VOTING BY MEANS OF A PROXY
37.1. A Shareholder registered in the Shareholder Register is entitled to
appoint by deed of authorization a proxy (who is not required to be a
Shareholder of the Company) to participate and vote in his stead,
whether at a certain General Meeting or generally at General Meetings of
the Company, whether personally or by means of a deed of vote.
37.2. In the event that the deed of authorization is not limited to a certain
General Meeting, then the deed of authorization, which was deposited
prior to a certain General Meeting, shall also be good for other General
Meetings thereafter. This Article 37 shall also apply to a Shareholder
which is a corporation, appointing a person to participate and vote in a
General Meeting in its stead.
38. A DEED OF AUTHORIZATION
38.1. The deed of authorization of a proxy shall be in writing and shall be
substantially in the form specified below, or in any usual or common
form or in such other form as may be approved by the Board. It shall be
duly signed by the appointer or his duly authorized attorney or, if such
appointer is a company or other corporate entity, under its common seal
or stamp or the hand of its duly authorized agent(s) or attorney(s).
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20
DEED OF AUTHORIZATION
To: Radview Software Ltd.
Attn: Corporate Secretary
I _____________________ of __________________________________
(Name of Shareholder) (Address of Shareholder)
being a registered holder of __________ Ordinary Shares having a par
value of NIS 0.01 each, of Radview Software Ltd., hereby appoint
________________________ of ____________________________
(Name of Proxy) (Address of Proxy)
as my proxy to participate and vote for me and in my stead and on my
behalf at the General Meeting of the Company to be held on the _____
day of ___________, 20__ and at any adjournment(s) thereof / at any
General Meeting of the Company, until I shall otherwise notify you.
Signed this ______ day of ____________, 20__.
-------------------------
(Signature of Appointer)
38.2. The deed of authorization of a proxy (and the power of attorney or other
authority, if any, under which such instrument has been signed) shall
either be delivered to the Company, at its registered office or at such
place as the Board may specify, not less than two (2) hours (or not less
than twenty four (24) hours with respect to a General Meeting to be held
outside of Israel) before the time fixed for the meeting at which the
person named in the deed of authorization proposes to vote, or presented
to the Chairman at such meeting.
39. EFFECT OF DEATH OF APPOINTER OR REVOCATION OF APPOINTMENT
A vote cast pursuant to a deed of authorization of a proxy shall be valid
notwithstanding the previous death, incapacity or bankruptcy, or if a
company or other corporate entity, the liquidation, of the appointing
Shareholder (or of his attorney-in-fact, if any, who signed such
instrument), or the revocation of the appointment or the transfer of the
share in respect of which the vote is cast, provided no written notice of
any such event shall have been received by the Company or by the Chairman
of the General Meeting before such vote is cast and provided, further,
that the appointing Shareholder, if present in person at said General
Meeting, may revoke the appointment by means of a writing, oral
notification to the Chairman, or otherwise.
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21
DEED OF VOTE
40. GENERAL
40.1. A Shareholder may vote in a General Meeting by means of a deed of vote
on any of the following issues that shall arise in the General Meeting:
40.1.1. All issues detailed in Article 22.1.1 through 22.1.8 above;
40.1.2. Any other issue which the Articles provide can be voted thereon by
means of a deed of vote.
40.1.3. Any other issues which may be permitted by the Companies Law or
the Companies Regulations.
40.2. The deed of vote shall be signed by the Shareholder and shall be in any
form acceptable to the Board.
40.3. To the extent required by the Companies Law and Companies Regulations,
the deed of vote shall be sent by the Company, at its expense, to the
Shareholders of the Company who are entitled to vote in the General
Meeting, together with the notice with respect to the General Meeting.
40.4. A duly executed deed of vote which was received at the registered office
of the Company at least two (2) Business Days prior to the date of the
General Meeting, shall constitute the participation and voting of the
Shareholder who has delivered it, for each and every purpose, including
for the purpose of determining the lawful quorum at a General Meeting. A
deed of vote received by the Company, in accordance with this Article,
with respect to a certain issue which was not voted on at the General
Meeting, shall be viewed as an "abstain" with respect to the resolution
to adjourn the General Meeting and, at any adjourned General Meeting,
shall be counted and voted in accordance with the manner set forth
therein.
41. THE DISQUALIFICATION OF DEEDS OF VOTE AND DEEDS OF AUTHORIZATION
Subject to the provisions of applicable Law, the corporate secretary of
the Company may, in his discretion, disqualify deeds of vote and deeds of
authorization and so notify the Shareholder who submitted a deed of vote
or deeds of authorization in the following cases:
41.1. If there is a reasonable suspicion that they are forged or falsified;
41.2. If they are not duly executed or completed;
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22
41.3. If there is a reasonable suspicion that they are given with respect to
shares for which one or more deeds of vote or deeds of authorization
have been given and not withdrawn;
41.4. If more than one choice is marked for the same resolution; or
41.5. With respect to resolutions which require that the majority for their
adoption include a certain percentage of those not having a personal
interest in the approval of the resolution, where it was not marked, or
otherwise notified to the Company, whether or not the relevant
Shareholder has a personal interest.
42. RECOMMENDATIONS
42.1. The Board, and any other person upon whose lawful demand an
Extraordinary Meeting is convened by the Board, may send to the
Shareholders a recommendation in order to persuade them with respect to
any matter specified in Article 40.1 above, which is on the agenda of
such General Meeting. The recommendation shall be delivered at the
expense of the Company, together with the deed of vote, if so required
by Law. In the event that a General Meeting is convened with respect to
any of the matters specified in Article 40.1 above, any Shareholder may
submit to the Company, no later than fourteen (14) days prior to the
date of the General Meeting, a request that a recommendation be
delivered on his behalf to the other Shareholders, together with the
form of such recommendation. Unless it is otherwise provided by Law,
such recommendation shall be delivered by the Company at the expense of
such Shareholder.
42.2. The Board may send to the Shareholders a recommendation in response to a
recommendation delivered in accordance with the provisions of this
Article, or in response to any other submission to the Shareholders.
Such recommendation shall be delivered at the expense of the Company.
BOARD OF DIRECTORS
43. THE AUTHORITY OF THE BOARD
43.1. The authority of the Board is as specified in the Companies Law and in
the provisions of these Articles.
43.2. The Board may exercise any authority of the Company which is not, by the
Companies Law or by these Articles, required to be exercised by another
organ of the Company.
43.3. Without derogating from the generality of Articles 43.1 and 43.2 above,
the Board's authority shall include the following:
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23
43.3.1. The Board may, from time to time, in 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 in all respects as it deems appropriate,
including, without limitation, by the issuance of bonds, perpetual
or redeemable debentures or other securities, or any mortgages,
charges, or other liens 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.
43.3.2. The Board 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, in its sole discretion, shall deem
appropriate, 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 may from time to
time deem appropriate.
43.3.3. Subject to the provisions of any Law, the Board may, from time to
time, authorize any person to be the representative of the Company
with respect to those objectives and subject to those conditions and
for that time period, as the Board deems appropriate, and may also
grant any such representative the authority to delegate any or all
of the authorities, powers and discretion given to him by the Board.
44. BOARD MEETINGS
44.1. CONVENING MEETINGS OF THE BOARD
44.1.1. The Chairman of the Board may convene a meeting of the Board at
any time; provided that a meeting of the Board be convened at least
once every three (3) months.
44.1.2. The Chairman of the Board shall convene a meeting of the Board at
any time or in any event that such meeting is required by the
provisions of the Companies Law.
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24
44.2. NOTICE OF A MEETING OF THE BOARD
44.2.1. Any notice with respect to a meeting of the Board may be given
orally or in writing, so long as the notice is given at least seven
(7) days prior to the date fixed for the meeting, unless all
Directors or their Alternate Directors (as defined in Article
46.1.1) or their representatives agree on a shorter time period.
Such notice shall be delivered personally, by mail, or transmitted
via facsimile or e-mail or through another means of communication,
to the address, facsimile number or to the e-mail address or to an
address where messages can be delivered through other means of
communication, as the case may be, as the Director informed the
Company in advance.
44.2.2. A notice with respect to a meeting of the Board shall include the
venue, date and time of the meeting of the Board, the issues on its
agenda and any other material that the Chairman of the Board
requests to be included in the notice with respect to the meeting.
44.3. THE AGENDA OF BOARD MEETINGS
The agenda of any meeting of the Board shall be as determined by the
Chairman of the Board, and shall include the following matters:
44.3.1. Matters for which the meeting is required to be convened in
accordance with the Companies Law;
44.3.2. Any matter requested by a Director or by the General Manager to be
included in the meeting within a reasonable time (taking into
account the nature of the matter) prior to the date of the meeting;
44.3.3. Any other matter determined by the Chairman of the Board.
44.4. QUORUM
Unless otherwise unanimously decided by the Board, a quorum at a meeting
of the Board shall be constituted by the presence of a majority of the
Directors then in office who are lawfully entitled to participate in the
meeting (as conclusively determined by the Chairman of the Board ), but
shall not be less than two Directors.
44.5. CONDUCTING A MEETING THROUGH MEANS OF COMMUNICATION
The Board may conduct a meeting of the Board through the use of any
means of communication, provided all of the participating Directors can
hear each other simultaneously. A resolution approved by use of means of
communications as aforesaid, shall be deemed to be a resolution lawfully
adopted at a meeting of the Board.
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25
44.6. VOTING IN THE BOARD
Unless otherwise provided by these Articles, issues presented at
meetings of the Board shall be decided upon by a majority of the votes
of Directors present (or participating, in the case of a vote through a
permitted means of communications) and lawfully entitled to vote thereon
(as conclusively determined by the Chairman of the Board). Each Director
shall have a single vote.
44.7. ADOPTION OF RESOLUTIONS WITHOUT CONVENING
The Board may adopt resolutions without actually convening with the
written consent (given by letter, facsimile, e-mail or otherwise) or
oral consent (provided that such consent has been confirmed in writing
by the Chairman of the Board) of all the Directors then in office and
lawfully entitled (as conclusively determined by the Chairman of the
Board) to participate and to vote thereon. Matters presented in
accordance with this Article 44.7 shall be decided upon by a majority of
the votes of such Directors. Resolutions adopted pursuant to this
Article 44.7 shall be deemed to have been duly adopted by a meeting of
the Board duly convened and held. Minutes of such resolutions shall be
approved and signed by the Chairman of the Board.
44.8. WRITTEN RESOLUTION
A resolution in writing signed by all Directors then in office and
lawfully entitled to vote thereon (as conclusively determined by the
Chairman of the Board) or to which all such Directors have given their
consent (by letter, facsimile, e-mail or otherwise), or their oral
consent by telephone (provided that a written summary thereof has been
approved and signed by the Chairman of the Board), shall be deemed to
have been unanimously adopted by a meeting of the Board duly convened
and held.
45. THE APPOINTMENT OF DIRECTORS
45.1. THE NUMBER OF DIRECTORS
The Board shall consist of such number of Directors, not less than five
(5) nor more than eleven (11).
45.2. DIRECTORS GENERALLY
45.2.1. Subject to the provisions of the Companies Law, a Director may
hold another position in the Company.
45.2.2. A company or other corporate entity may serve as a Director in the
Company, subject to the provisions of Articles 46.2 and 46.3 below.
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26
45.2.3. The Board shall include external Directors as may be required to
comply with the requirements of Companies Law, and independent
Directors (any of whom may serve as an external Director as referred
to above) as may be required to comply with the requirements of the
Nasdaq Stock Market or any other securities exchange on which the
securities of the Company are then quoted or listed.
45.3. THE ELECTION OF DIRECTORS AND THEIR TERMS OF OFFICE
45.3.1. The Directors shall be elected at each Annual Meeting by a
resolution adopted by an Ordinary Majority; provided, however, that
external Directors shall be elected in accordance with the Companies
Law and/or any securities exchange rule applicable to the Company.
The Directors shall commence the terms of their office from the
close of the Annual Meeting at which they are elected, unless a
later date is stated in the resolution with respect to their
appointment, and, subject to the provisions of the Companies Law
with respect to external Directors, shall serve in office until the
close of the next Annual Meeting, unless their office is vacated
earlier in accordance with the provisions of Law or these Articles.
45.3.2. Subject to the provisions of the Companies Law with respect to
external Directors, in each Annual Meeting, the Directors that were
elected in the previous Annual Meeting, and thereafter, in any
Extraordinary Meeting, or otherwise previously appointed to the
Board, shall be deemed to have resigned from their office. A
resigning Director may be reelected.
45.3.3. The General Meeting, by a resolution adopted by an Ordinary
Majority, or the Board, upon approval of the majority of the
Directors of the Company, may elect any person as a Director, to
fill an office which became vacant, and also in any event in which
the number of members of the Board is less than the minimum set in
Article 45.1 above. Any Director elected in such manner shall serve
in office until the next Annual Meeting.
45.4. THE INITIAL STRUCTURE OF THE BOARD
Until otherwise resolved by a resolution of the shareholders of the
Company or by the Board, in accordance with Article 45.3 hereof, the
members of the Board shall be: (i) Ilan Kinreich, (ii) William J. Geary,
(iii) Shai Beilis, (iv) Yehuda Zisapel, (v) Robert Steinkrauss, and (vi)
Christopher M. Stone.
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27
46. ALTERNATE DIRECTORS AND REPRESENTATIVE OF A DIRECTOR THAT IS A COMPANY
46.1. ALTERNATE DIRECTORS
46.1.1. Subject to the provisions of the Companies Law, any Director may,
by written notice to the Company, appoint an alternate for himself
(in these Articles, an "ALTERNATE Director"), dismiss 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, for a certain meeting or a certain period
of time to be specified in the appointment. Any notice given to the
Company pursuant to this Article shall be in writing, delivered to
the Company and signed by the appointing or dismissing Director, and
shall become effective on the date fixed therein, or upon the
delivery thereof to the Company, whichever is later.
46.1.2. Anyone who is not qualified to be appointed as a Director and/or
anyone serving as a Director or as an existing Alternate Director
may not be appointed and may not serve as an Alternate Director.
46.2. REPRESENTATIVE OF A DIRECTOR THAT IS A COMPANY
A Director that is a company or other corporate entity shall appoint an
individual, qualified to be appointed as a Director in the Company, in
order to serve on its behalf, either for a certain meeting or for a
certain period of time or generally and such company or other entity may
also dismiss that individual and appoint another in his stead
(hereinafter: a "DIRECTOR'S REPRESENTATIVE"). Any notice given to the
Company pursuant to this Article shall be in writing, delivered to the
Company and signed by the appointing or dismissing body, and shall
become effective on the date fixed therein, or upon the delivery thereof
to the Company, whichever is later.
46.3. PROVISIONS WITH RESPECT TO ALTERNATE DIRECTORS AND DIRECTOR'S
REPRESENTATIVES
46.3.1. An Alternate Director and a Director's Representative shall have
all the authority of the Director who appointed him, provided,
however, that he may not in turn appoint an alternate or a
representative for himself (unless the instrument appointing him
otherwise expressly provides), and provided further that an
Alternate Director and a Director's Representative shall have no
standing at any meeting of the Board or any committee thereof while
the Director who appointed him is present.
46.3.2. The office of an Alternate Director or a Director's Representative
shall be vacated under the circumstances, MUTATIS MUTANDIS, set
forth in Article 47, and such office shall IPSO FACTO be vacated if
the Director who appointed such Alternate Director or Director's
Representative ceases to be a Director.
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28
47. TERMINATION OF THE TERM OF A DIRECTOR
Subject to the provisions of the Companies Law with respect to external
Directors, the term of a Director shall terminate in any of the following cases:
47.1. If he resigned from his office by way of a signed letter, filed with the
corporate secretary at the Company's office;
47.2. If he is declared bankrupt;
47.3. If he is declared by an appropriate court to be incapacitated;
47.4. Upon his death and, in the event of a company or other corporate entity,
upon the adoption of a resolution for its voluntary liquidation or the
issuance of a liquidation order;
47.5. If he is removed from his office by way of a resolution adopted by the
General Meeting by an Ordinary Majority;
47.6. If he is convicted of a crime requiring his termination pursuant the
Companies Law; or
47.7. If his term of office is terminated by the Board in accordance with the
provisions of the Companies Law.
48. CONTINUING DIRECTORS IN THE EVENT OF VACANCIES
In the event of one or more vacancies in the Board, the continuing
Directors may continue to act in every matter; provided, however, that
if the number of continuing Directors is less than the minimum number
provided for pursuant to Article 45.1 hereof, and unless the vacancy or
vacancies is filled by the Board pursuant to Article 45.3.3, they may
only act for the convening of a General Meeting for the purpose of
electing Director(s) to fill any or all vacancies.
49. COMPENSATION OF DIRECTORS
49.1. Directors who do not hold other positions in the Company and who are not
external Directors shall not receive any compensation from the Company,
unless such compensation and its amount are approved by the General
Meeting, subject to applicable Law.
49.2. The compensation of the Directors may be fixed, as an all-inclusive
payment or as payment for participation in meetings or as any
combination thereof.
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29
49.3. The Company may reimburse expenses incurred by a Director in connection
with the performance of his duties as a Director, to the extent provided
in a resolution of the Board.
50. PERSONAL INTEREST OF A DIRECTOR
Subject to compliance with the provisions of the Companies Law, the
Company may enter into any contract or otherwise transact any business
with any Director and may enter into any contract or otherwise transact
any business with any third party in which contract or business a
Director has a personal interest, directly or indirectly.
51. COMMITTEES OF THE BOARD OF DIRECTORS
51.1. Subject to the provisions of the Companies Law, the Board may delegate
its authorities or any part of them to committees, as it deems
appropriate, and it may from time to time cancel the delegation of any
such authority. Any such committee, while utilizing an authority as
stated, is obligated to fulfil all of the instructions given to it from
time to time by the Board. The Board may adopt a charter, or guidelines,
for any such committee and amend the same from time to time.
51.2. Subject to the provisions of the Companies Law, the rules of the Nasdaq
National Market or any other exchange on which the Company's securities
are or may become quoted or listed, each committee of the Board shall
consist of at least two (2) Directors, of which at least one shall be an
external Director; provided that the audit committee shall consist of at
least three (3) Directors, and all of the external Directors of the
Company shall be members of it.
51.3. The provisions of these Articles with respect to meetings of the Board
shall apply, MUTATIS MUTANDIS, to the meetings and discussions of each
committee of the Board, provided that no other terms are set by the
Board in this matter, and provided that the lawful quorum for the
meetings of the committee, as stated, shall be at least a majority of
the members of the committee, unless otherwise required by Law.
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52. CHAIRMAN OF THE BOARD
52.1. APPOINTMENT
52.1.1. The Board shall choose one of its members to serve as the Chairman
of the Board. Unless otherwise provided in the appointing
resolution, the Chairman of the Board shall be appointed at each
first meeting of the Board held after the General Meeting in which
Directors were appointed to the Company.
52.1.2. In the event that the Chairman of the Board ceases to serve as a
Director in the Company, the Board, in its first meeting held
thereafter, shall appoint one of its members to serve as a new
Chairman who will serve in his position for the term set in the
appointment resolution, and if no period is set, until the
appointment of a new Chairman, as provided in this Article.
52.1.3. In the event that the Chairman of the Board is absent from a
meeting of the Board within fifteen (15) minutes of the time fixed
for the meeting, or if he is unwilling to preside at the meeting,
the Board shall appoint one of the Directors present to preside at
the meeting.
52.2. AUTHORITY
52.2.1. The Chairman of the Board shall preside over meetings of the Board
and shall sign the minutes of the meetings.
52.2.2. In the event of deadlock vote, the Chairman of the Board shall not
have an additional or casting vote.
52.2.3. The Chairman of the Board is entitled, at all times, at his
initiative or pursuant to a resolution of the Board, to require
reports from the General Manager in matters pertaining to the
business affairs of the Company.
52.2.4. The Chairman of the Board shall not serve as the General Manager
of the Company, unless he is appointed in accordance with the
provisions of the Companies Law.
52.2.5. The Chairman of the Board shall not serve as a member of the audit
committee.
53. VALIDITY OF ACTS DESPITE DEFECTS
Subject to the provisions of the Companies Law, all acts done bona fide
at any meeting of the Board, or of a committee of the Board, 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 meetings 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 was no such defect or disqualification.
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MINUTES
54. MINUTES
54.1. Minutes of each General Meeting and of each meeting of the Board shall
be recorded and duly entered in books provided for that purpose. Such
minutes shall set forth all resolutions adopted at the meeting and, with
respect to minutes of Board meetings, the names of the persons present
at the meeting.
54.2. 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.
OFFICERS; AUDITOR
55. THE GENERAL MANAGER
55.1. The Board shall appoint a General Manager, and may appoint more than one
General Manager. Subject to Article 52.2.4, the General Manager may be a
Director. Such appointment(s) as General Manager may be either for a
fixed term or without any limitation of time, and the Board may from
time to time (subject to the provisions of the Companies Law 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.
55.2. THE AUTHORITY OF THE GENERAL MANAGER
55.2.1. The General Manager is responsible for the day-to-day management
of the affairs of the Company within the framework of the policies
set by the Board and subject to its instructions.
55.2.2. The General Manager shall have all managerial and operational
authorities which were not conferred by Law or pursuant to these
Articles to any other organ of the Company, and he shall be under
the supervision of the Board.
55.2.3. In the event the Board appoints more than one General Manager, the
Board may determine the respective positions and functions of the
General Managers and allocate their authorities as the Board may
deem appropriate.
55.2.4. The Board may assume the authority granted to the General Manager,
either with respect to a certain issue or for a certain period of
time.
55.2.5. In the event that the General Manager is unable to exercise his
authority, the Board may exercise such authority in his stead, or
authorize another to exercise such authority.
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55.2.6. The General Manager, with the approval of the Board, may delegate
to his subordinates any of his authority.
56. INTERNAL CONTROLLER
56.1. The Board shall appoint an internal controller to the Company in
accordance with the proposal of the audit committee and with the
provisions of the Companies Law. The internal controller shall report to
the Chairman of the Board, the General Manager and the Chairman of the
audit committee, all to the extent required by Law.
56.2. The internal controller shall file with the Board a proposal for an
annual or other periodic work plan, which shall be approved by the
Board, subject to any changes it deems appropriate.
57. OTHER OFFICERS OF THE COMPANY
The Board may appoint, in addition to the General Manager and the
internal controller, other officers, define their positions and
authorities, and set their compensation and terms of employment. The
Board may authorize the General Manager to exercise any or all of its
authorities stated in this Article.
58. THE AUDITOR
58.1. The Shareholders at the Annual Meeting shall appoint an auditor for a
period until the close of the following Annual Meeting or for a period
not to extend beyond the close of the third Annual Meeting following the
Annual Meeting in which he was appointed. Subject to the provisions of
the Companies Law, the General Meeting is entitled at any time to
terminate the service of the auditor.
58.2. The Board shall fix the compensation of the auditor of the Company for
his auditing activities, and shall also fix the compensation of the
auditor for additional services, if any, which are not auditing
activities, and, in each case, shall report thereon to the Annual
Meeting.
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DISTRIBUTIONS
59. GENERAL
The Company may effect a distribution to its Shareholders to the extent
permitted by the Companies Law. Except as permitted by the Companies Law
or Companies Regulations, distributions shall not be made except from the
profits of the Company legally available therefor.
60. DIVIDEND AND BONUS SHARES
60.1. RIGHT TO DIVIDEND OR BONUS SHARES
60.1.1. A Shareholder shall be entitled to receive dividends or bonus
shares, upon the resolution of the Board of Directors and in
accordance with Article 60.2 below, consistent with the rights
attached to the shares held by such Shareholder.
60.1.2. The Shareholders entitled to receive dividends or bonus shares
shall be those who are registered in the Shareholder Register on the
date of the resolution approving the distribution or allotment, or
on such later date, as may be determined in such resolution.
60.2. RESOLUTION OF WITH RESPECT TO A DIVIDEND OR BONUS SHARES
The resolution of the Board of Directors with respect to the
distribution of a dividend or bonus shares shall be payable only after
the same has been adopted by the General Meeting by an Ordinary
Majority, after presentation of the recommendation of the Board. The
General Meeting may reject or accept the Board's recommendation or
decrease the amount recommended, but may not increase it, provided in
each case the distribution is permitted in accordance with the
provisions of the Companies Law.
60.3. SPECIFIC DIVIDEND
Upon the recommendation of the Board approved by a resolution of the
General Meeting adopted by an Ordinary Majority, a dividend may be paid,
in whole or in part, by the distribution of specific assets of the
Company or by distribution of paid up shares, debentures or other
securities of the Company or of any other companies, or in any
combination thereof.
60.4. DEDUCTIONS FROM DIVIDENDS
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The Board may deduct from any distribution or other moneys payable to
any Shareholder in respect of a share any and all sums of money then
payable by him to the Company on account of calls or otherwise in
respect of shares of the Company and/or on account of any other debt
permitted to be setoff in accordance with applicable law.
60.5. RETENTION OF DIVIDENDS
60.5.1. The Board may retain any dividend, bonus shares 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.
60.5.2. The Board may retain any dividend, bonus shares or other moneys
payable or property distributable in respect of a share in respect
of which any person is, under Article 20.4, 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.
60.6. MECHANICS OF PAYMENT
Any dividend or other moneys payable in cash in respect of a share may
be paid by check sent by registered mail 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 as a result
of the death or bankruptcy of the holder or otherwise, to any one of
such persons or to his bank account), or to such person and at such
address as the person entitled thereto may direct in writing. Every such
check 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 by the banker upon whom it is drawn
shall be a good discharge to the Company. Every such check shall be sent
at the risk of the person entitled to the money represented thereby.
60.7. AN UNCLAIMED DIVIDEND
All unclaimed dividends or other moneys payable in respect of a share
may be invested or otherwise made use of by the Board for the benefit of
the Company until claimed. The payment by the Board of any unclaimed
dividend or such other moneys into a separate account shall not
constitute the Company a trustee in respect thereof, and any dividend
unclaimed after a period of seven (7) years from the date of declaration
of such dividend, and any such other moneys unclaimed after a like
period from the date the same were payable, shall be forfeited and shall
revert to the Company; provided, however, that the Board may, at its
discretion, cause the Company to pay any such dividend or such other
moneys, or any part thereof, to a person who would have been entitled
thereto had the same not reverted to the Company.
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35
60.8. RECEIPT FROM A JOINT HOLDER
If two or more persons are registered as joint holders of any share, or
are entitled jointly thereto as a result of the death or bankruptcy of
the holder or otherwise, any one of them may give effectual receipts for
any dividend, bonus shares or other moneys payable or property
distributable in respect of such share.
60.9. MANNER OF CAPITALIZATION OF PROFITS AND THE DISTRIBUTION OF BONUS SHARES
Upon the recommendation of the Board approved by a resolution of the
General Meeting adopted by an Ordinary Majority, the Company 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 distribution, or representing
premiums received on the issuance of shares and standing to the credit
of the share premium account, to be capitalized and distributed as
capital among such of the Shareholders as would be entitled to receive
the same if distributed by way of dividend and in the same proportion,
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 other securities 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 other securities, and may cause
such distribution or payment to be accepted by such Shareholders in full
satisfaction of their interest in such capitalized sum.
60.10. The Board may settle, as it deems fit, any difficulty arising with
regard to the distribution of bonus shares, distributions referred to in
Articles 60.3 and 60.9 hereof or otherwise, and in particular, to issue
certificates for fractions of shares and sell such fractions of shares
in order to pay their consideration to those entitled thereto, to set
the value for the distribution of certain assets and to determine that
cash payments shall be paid to the Shareholders on the basis of such
value, or that fractions whose value is less than NIS 0.01 shall not be
taken into account. The Board may pay cash or convey these certain
assets to a trustee in favor of those people who are entitled to a
dividend or to a capitalized fund, as the Board shall deem appropriate.
60.11. The provisions of this chapter shall also apply to the distribution of
Securities.
61. ACQUISITION OF SHARES
61.1. The Company is entitled to acquire or to finance an acquisition,
directly or indirectly, of shares of the Company or securities
convertible or exercisable into shares of the Company, including
incurring an obligation to take any of these actions, subject to the
fulfillment of the conditions of a permitted distribution under the
Companies Law. In the event that the Company so acquired any of its
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36
shares, any such share shall become a dormant share, and shall not
confer any rights, so long as it held by the Company.
61.2. A subsidiary or another company controlled by the Company is entitled to
acquire or finance an acquisition, directly or indirectly, of shares of
the Company or securities convertible or exercisable into shares of the
Company, or incur an obligation with respect thereto, to the same extent
that the Company may make a distribution, subject to the terms of, and
in accordance with the Companies Law. In the event a subsidiary or such
controlled company so acquired any of the Company's shares, any such
share shall not confer any voting rights, so long as it is held by such
subsidiary or controlled company.
INSURANCE, INDEMNIFICATION AND RELEASE OF OFFICE HOLDERS
62. DEFINITION
For purposes of Articles 63, 64 and 65 below, the term "Office Holder"
shall have the meaning ascribed to such term in the Companies Law.
63. INSURANCE OF OFFICE HOLDERS
63.1. The Company may, to the extent permitted by the Companies Law including
the receipt of all approvals as required therein or under applicable
law, enter into a contract for the insurance of the liability of an
Office Holder of the Company, in respect of a liability imposed on him
as a result of an act done by him in his capacity as an Office Holder of
the Company, in any of the following:
63.1.1. a breach of his duty of care to the Company or to another person;
63.1.2. a breach of his duty of loyalty to the Company, provided that the
Office Holder acted in good faith and had reasonable grounds to
assume that such act would not harm the Company;
63.1.3. a financial liability imposed on him in favor of another person.
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64. INDEMNIFICATION OF OFFICE HOLDERS
64.1. The Company may, to the extent permitted by the Companies Law including
the receipt of all approvals as required therein or under applicable
law, indemnify an Office Holder of the Company for liability or expense
he incurs as a result of an act done by him in his capacity as an Office
Holder of the Company, as follows:
64.1.1. a financial liability imposed on him in favor of another person by
a court judgment, including a settlement judgment or an arbitrator's
award approved by a court;
64.1.2. reasonable litigation expenses, including attorneys' fees,
expended by an Office Holder or charged to him by a court, in a
proceeding filed against him by the Company or on its behalf or by
another person, or in a criminal charge from which he was acquitted,
or in a criminal charge of which he was convicted of a crime which
does not require a finding of criminal intent.
64.2. The Company may indemnify an Office Holder of the Company pursuant to
this Article 64 retrospectively, and may also undertake in advance to
indemnify an Office Holder of the Company, provided the undertaking is
limited to events of a kind which the Board believes can be anticipated
at the time of such undertaking, and in an amount that the Board
determines is reasonable under the circumstances.
65. RELEASE OF OFFICE HOLDERS
The Company may, to the extent permitted by the Companies Law, release an
Office Holder of the Company, in advance, from his liability, in whole or
in part, for damages resulting from the breach of his duty of care to the
Company.
66. GENERAL
The provisions of Articles 63, 64 and 65 above are not intended, and shall
not be interpreted, to restrict the Company in any manner in respect of
the procurement of insurance and/or in respect of indemnification and/or
release from liability in connection with any person who is not an Office
Holder, including, without limitation, any employee, agent, consultant or
contractor of the Company who is not an Office Holder, or in connection
with any Office Holder to the extent that such insurance and/or
indemnification and/or release from liability is permitted under the Law.
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LIQUIDATION
67. LIQUIDATION
67.1. Subject to the provision of applicable Law, in the event that the
Company is liquidated, whether voluntarily or otherwise, the liquidator,
with the approval of a General Meeting, may make a distribution in kind
to the Shareholders of all or part of the property of the Company, and
he may, with the approval of the General Meeting, deposit any part of
the property of the Company with trustees in favor of the Shareholders,
as the liquidator with the aforementioned approval, deems appropriate.
67.2. Subject to applicable Law and to the rights of shares with special
rights upon liquidation, the assets of the Company available for
distribution among the Shareholders shall be distributed to them in
proportion to the amount paid or credited as paid on the par value of
their respective holdings of the shares in respect of which such
distribution is being made.
ACCOUNTS
68. BOOKS OF ACCOUNT
The Board shall cause accurate books of account to be kept in accordance
with the provisions of the Companies Law 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 may deem
appropriate, 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 or by a resolution of the
General Meeting adopted by an Ordinary Majority.
69. AUDIT
Without derogating from the requirements of any applicable Law, at least
once in every fiscal year the accounts of the Company shall be audited and
the accuracy of the profit and loss account and balance sheet certified by
one or more duly qualified auditors.
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RIGHTS OF SIGNATURE, STAMP AND SEAL
70. RIGHTS OF SIGNATURE, STAMP AND SEAL
70.1. The Board 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.
70.2. The Company shall have at least one official stamp.
70.3. The Board may provide for a seal. If the Board so provides, it shall
also provide for the safe custody thereof. Such seal shall not be used
except by the authority of the Board 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.
NOTICES
71. NOTICES
71.1. Any written notice or other document may be served by the Company upon
any Shareholder either personally or by sending it by prepaid registered
mail (airmail if sent to a place outside Israel) addressed to such
Shareholder at his address as described in the Shareholder Register 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 corporate 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 two (2) Business Days after it has been posted (seven
(7) Business Days if sent internationally), or when actually received by
the addressee if sooner than two days 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 corporate secretary or the General Manager),
provided, however, that notice may be sent by facsimile or other
electronic means and confirmed by registered mail as aforesaid, and such
notice shall be deemed to have been given on the first Business Day
(other than Sunday) after such facsimile or other electronic
communication has been sent or when actually received by such
Shareholder (or by the Company), whichever is earlier. 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 respect, to comply with the provisions of this
Article 71.1. Unless otherwise provided in these Articles, the
provisions of this Article 71.1 shall also apply to written notices
permitted or required to be given by the Company to any Director or by
any Director to the Company.
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71.2. All notices to be given to the Shareholders shall, with respect to any
share held by persons jointly, be given to whichever of such persons is
named first in the Shareholder Register, and any notice so given shall
be sufficient notice to the holders of such share.
71.3. Any Shareholder whose address is not described in the Shareholder
Register, 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.
71.4. Any Shareholder and any Director may waive his right to receive notices
generally or during a specific time period and he may consent that a
General Meeting of the Company or a meeting of the Board, as the case
may be, shall be convened and held notwithstanding the fact that he did
not receive a notice with respect thereto, or notwithstanding the fact
that the notice was not received by him within the required time, in
each case subject to the provisions of any Law prohibiting any such
waiver or consent.
