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EXHIBIT 3(ii)
AMENDED AND RESTATED BY-LAWS
OF
DEMEGEN, INC.
(FORMERLY NAMED DEMETER BIOTECHNOLOGIES LTD.)
(FORMERLY NAMED EXCELSIOR CAPITAL CORP.)
ARTICLE I
Registered Office, Registered Agent
and Corporate Seal
Section 1. Business Offices. The registered office and registered agent of the
Corporation shall be as set forth in the Corporation's Articles of Incorporation
as may be amended from time to timer. Other offices may be established from time
to time by resolution of the Board of Directors, both within and outside the
State of Colorado.
Section 2. Seal. The seal of the Corporation shall have inscribed thereon the
name of the Corporation, and the words "Colorado" and "Seal," and shall be in
such form as may be approved by the Board of Directors, which shall have the
power to alter the same at pleasure.
ARTICLE II
Shares and Transfer Thereof
Section 1. Certificates. The shares of this Corporation shall be represented by
certificates signed by the president or a vice president and the secretary or an
assistant secretary of the Corporation, and may be sealed with the seal of the
Corporation or a facsimile thereof. The signatures of the president or vice
president and the secretary or assistant secretary upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer at the date of its issue.
Section 2. Regulation. The Board of Directors may make such rules and
regulations as it may deem appropriate concerning the issuance, transfer and
registration of certificates for shares of the corporation, including the
appointment of transfer agents and registrars.
Section 3. Cancellation of Certificates. No new certificates evidencing shares
shall be issued unless and until the old certificate or certificates in lieu of
which the new certificate is issued shall be surrendered for cancellation,
except as provided in Section 4 of this Article II.
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Section 4. Lost, Stolen or Destroyed Certificates. In case of loss or
destruction of any certificate of shares, another certificate may be issued in
its place upon satisfactory proof of such loss or destruction, and, at the
discretion of the Corporation, upon giving to the Corporation a satisfactory
bond of indemnity issued by a corporate surety in an amount and for a period
satisfactory to the Board of Directors.
Section 5. Close of Transfer Book and Record Date. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or entitled to receive payment of any
dividend or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may provide that the stock transfer books
shall be closed for a stated period, but not to exceed, in any case, fifty (50)
days. If the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at least ten (10) days immediately preceding such
meeting. In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than fifty (50) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the date
on which the particular action, requiring such determination of shareholders, is
to be taken. If the Board of Directors do not order the stock transfer books
closed, or fix in advance a record date, as provided above, then the record date
for the determination of shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or for the determination of shareholders for any proper
purpose, shall be thirty (30) days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken.
Section 6. Transfer of Shares. Subject to the terms of any shareholder agreement
relating to the transfer of shares or other transfer restrictions contained in
the Articles of Incorporation or authorized therein, shares of the corporation
shall be transferable on the books of the corporation by the holder thereof in
person or by his duly authorized attorney, upon the surrender and cancellation
of a certificate or certificates for a like number of shares. Upon presentation
and surrender of a certificate for shares properly endorsed and payment of all
taxes therefor, the transferee shall be entitled to a new certificate or
certificates in lieu thereof. As against the corporation, a transfer of shares
can be made only on the books of the corporation and in the manner hereinabove
provided, and the corporation shall be entitled to treat the holder of record of
any share as the owner thereof and shall not be bound to recognize any equitable
or other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, save as expressly
provided by the statutes of the State of Colorado.
Section 7. Transfer Agent. Unless otherwise specified by the Board of Directors
by resolution, the Secretary of the corporation shall act as transfer agent of
the certificates representing the shares of stock of the corporation. He shall
maintain a stock transfer book, the stubs in which shall set forth among other
things, the names and addresses of the holders of all issued shares of the
corporation, the number of shares held by each, the certificate numbers
representing such shares, the date of issue of the certificates representing
such shares, and whether or not such shares originate from original issue or
from transfer. Subject to Article III, Section 7, the names
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and addresses of the shareholders as they appear on the stubs of the stock
transfer book shall be conclusive evidence as to who are the shareholders of
record and as such entitled to receive notice of the meetings of shareholders;
to vote at such meetings; to examine the list of the shareholders entitled to
vote at meetings; to receive dividends; and to own, enjoy and exercise any other
property or rights deriving from such shares against the corporation. Each
shareholder shall be responsible for notifying the Secretary in writing of any
change in his name or address and failure to do so will relieve the corporation,
its directors, officers and agents, from liability for failure to direct notices
or other documents, or pay over or transfer dividends or other property or
rights, to a name or address other than the name and address appearing on the
stub of the stock transfer book.
ARTICLE III
Shareholders and
Meetings Thereof
Section 1. Shareholders of Record. Only shareholders of record on the books of
the Corporation shall be entitled to be treated by the Corporation as
holders-in-fact of the shares standing in their respective names, and the
Corporation shall not be bound to recognize any equitable or other claim to, or
interest in, any shares on the part of any other person, firm, or corporation,
whether or not it shall have express or other notice thereof, except as
expressly provided by the laws of Colorado.
Section 2. Meetings. Meetings of shareholders shall be held at the registered
office of the Corporation in the State of Colorado, or any other place
designated by a vote of the majority of directors.
Section 3. Annual Meeting. The annual meeting of shareholders of the corporation
for the election of directors, and for the transaction of such other business as
may properly come before the meeting, shall be held at such time as may be
determined by the Board of Directors by resolution in conformance with Colorado
law. If the election of Directors shall not be held on the day designated herein
for any annual meeting of the shareholders, the Board of Directors shall cause
the election to be held at a special meeting of the shareholders as soon
thereafter as may be convenient.
Section 4. Special Meetings. Special meetings of shareholders may be called by
the president or, in the absence of the president, by the vice president, the
board of directors, or the holders of not less than one-tenth (1/10) of all
shares entitled to vote on the subject matter for which the meeting is called.
Section 5. Notice. Written or printed notice stating the place, day and hour of
the shareholders' meeting, and, in case of a special meeting of shareholders,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten (10) days or more than fifty (50) days before the date of the
meeting, either personally or by mail, by or at the direction of the president,
the secretary, the board of directors, or the officer or persons calling the
meeting, to each
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shareholder of record entitled to vote at such meeting, except that if the
authorized capital stock is to be increased, at least thirty (30) days' notice
shall be given. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the shareholder at his address
as it appears on the stock transfer books of the Corporation, with postage
thereon prepaid. Failure to deliver such notice or obtain a waiver thereof shall
not cause the meeting to be lost, but it shall be adjourned by the shareholders
present for a period not to exceed sixty (60) days until any deficiency in
notice or waiver shall be supplied.
Section 6. Voting of Shares. Each outstanding share entitled to vote on any
matter presented at a meeting shall be entitled to one vote and each fractional
share shall be entitled to a corresponding fractional vote, in person or by
proxy, on each such matter submitted to a vote of such shares at a meeting of
shareholders, subject to the rights of cumulative voting, if any.
Section 7. Voting Record. The officer or agent having charge of the stock
transfer books for shares of this Corporation shall make, at least ten (10) days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof,. arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten (10) days prior to such meeting, shall be kept
on file at the principal office of the Corporation, whether within or outside
Colorado, and shall be subject to inspection by any shareholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original stock transfer
books shall be prima facie evidence as to who are the shareholders entitled to
examine such list or transfer book or to vote at any meeting of shareholders.
Section 8. Quorum. A quorum at any meeting of shareholders shall consist of a
majority of the shares of the Corporation entitled to vote thereat, represented
in person or by proxy. If a quorum is present, the affirmative vote of a
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders, unless the vote of a
greater number of voting by classes is required by law, the Articles of
Incorporation or these By-Laws.
Section 9. Manner of Acting. If a quorum is present, the affirmative vote of the
majority of the shares represented at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders, unless the vote of a
greater proportion or number or voting by classes is otherwise required by
statute or by the Articles of Incorporation or these Bylaws.
Section 10. Proxies. A shareholder may vote either in person or by proxy,
executed in writing by the shareholder, or by his duly authorized attorney in
fact. No proxy shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy. All proxies must be filed
with the Secretary at or before the time of the meeting.
Section 11. Ex-Officio Chairman. The president of the Corporation shall be
ex-officio chairman at all meetings of the shareholders.
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Section 12. Voting of Shares by Certain Holders. Shares standing in the name of
another corporation may be voted by such officer, agent or proxy as the bylaws
of such corporation may prescribe, or, in the absence of such provision, as the
Board of Directors of such other corporation may determine. Shares standing in
the name of a deceased person, a minor ward or an incompetent person, may be
voted by his administrator, executor, court appointed guardian or conservator,
either in person or by proxy without a transfer of such shares into the name of
such administrator, executor, court appointed guardian or conservator. Shares
standing in the name of a trustee may be voted by him, either in person or by
proxy, but no trustee shall be entitled to vote shares held by him without a
transfer of such shares into his name. Shares standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof into his
name if authority so to do be contained in an appropriate order of the court by
which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither shares of its own stock belonging to this corporation, nor shares of its
own stock held by it in a fiduciary capacity, nor shares of its own stock held
by another corporation if the majority of shares entitled to vote for the
election of directors of such corporation is held by this corporation may be
voted, directly or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding shares at any given time. Redeemable
shares which have been called for redemption shall not be entitled to vote on
any matter and shall not be deemed outstanding shares on and after the date on
which written notice of redemption has been mailed to shareholders and a sum
sufficient to redeem such shares has been deposited with a bank or trust company
with irrevocable instruction and authority to pay the redemption price to the
holders of the shares upon surrender or certificates therefor.
ARTICLE IV
Directors, Powers and Meetings
Section 1. Board of Directors. The business and affairs of the Corporation shall
be managed by a board of directors, which shall be comprised of no fewer than
three (3) directors and no more than nine (9), who need not be shareholders of
the Corporation or residents of the State of Colorado and who shall be elected
at the annual meeting of shareholders or some adjournment thereof. Directors
shall hold office until the next succeeding annual meeting or until their
successors shall have been elected and shall qualify; however, no provision of
this section shall be restrictive upon the right of the Board of Directors to
fill vacancies or upon the right of shareholders to remove directors as is
hereinafter provided.
Section 2. Annual Meeting. The annual meeting of the Board of Directors shall be
held at the same place as, and immediately after, the annual meeting of
shareholders, and no notice shall be required in connection therewith. The
annual meeting of the Board of Directors shall be for the purpose of electing
officers and the transaction of such other business as may come before the
meeting.
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Section 3. Special Meetings; Notice. Special meeting of the Board of Directors
may be called at any time by the president, a vice president, or by any
director, and may be held within or outside the State of Colorado at such time
and place as the directors may determine, or as the notice or waiver of notice
may specify. Notice of such meetings shall be given to each director at least
three (3) days prior to the date fixed for the meeting. Special meetings of the
Board of Directors may be held at any time that all directors are present in
person or by telephonic means, and presence of any director at a meeting shall
constitute waiver of notice of such meeting except as otherwise provided by law.
Unless specifically required by law, the Articles of Incorporation or these
By-Laws, neither the business to be transacted at nor the purpose of, any
special meeting of the Board of Directors need be specified in the notice or
waiver of such meeting.
Section 4. Quorum. A quorum at all meetings of the Board of Directors shall
consist of a majority of the number of directors then fixed by these By-Laws,
but a smaller number may adjourn from time to time without further notice until
a quorum be secured. The act of the majority of directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors, unless
the act of a greater number is required by the Statutes of this State or the
Articles of Incorporation or these By-Laws.
Section 5. Special Voting Requirements. A two-thirds (2/3) vote of the Board of
Directors shall be required to amend these By-Laws. A two thirds (2/3) vote of
the Board of Directors shall be required to set salaries, bonuses, dividends,
and directors' fees.
Sections 6. Vacancies. Except as otherwise provided in the Corporation's
Articles of Incorporation, ny vacancy occurring in the Board of Directors,
including a vacancy resulting from an increase in the number of directors, may
be filled by the affirmative vote of a majority of the remaining directors even
though there be less than a quorum at any meeting of the Board of Directors
called to fill that vacancy. A director elected to fill a vacancy of a
predecessor director shall be elected for the unexpired term of his predecessor
in office, and shall hold such office until his successor is duly elected and is
qualified.
Section 7. Fees and Expenses. Directors may receive such fees as may be
established by appropriate resolution of the Board of Directors for attendance
at such regular and special meetings of the board, and, in addition thereto,
shall receive reasonable traveling expense, if any is required, for attendance
at such meetings.
Section 8. Removal of Directors. The shareholders may, at a meeting called for
the express purpose of removing directors, remove the entire board or any lesser
number with or without cause by a vote of the holders of the majority of the
shares then entitled to vote at an election of directors.
Section 9. Participation by Electronic Means. Except as may be otherwise
provided by the Articles of Incorporation or Bylaws, members of the Board of
Directors or any committee designated by such Board may participate in a meeting
of the Board or committee by means of conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear each other at the same time. Such participation shall constitute presence
in person at the meeting.
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Section 10. Presumption of Assent. A director of the corporation who is present
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the person acting as the Secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
ARTICLE V
Officers
Section 1. Officers-Elections. The elective officers of the Corporation shall be
a president, one or more vice presidents, a secretary, and a treasurer, who
shall be elected by the Board of Directors at its first meeting after the annual
meeting of shareholders. Unless removed in accordance with procedures
established by law and these By-Laws, the said officers shall serve until the
next succeeding annual meeting of the Board of Directors and until their
respective successors are elected and shall qualify. Any two offices, but not
more than two, may be held by the same person at the same time, except that one
person may not simultaneously hold the offices of president and vice president,
or that of president and secretary.
Section 2. Additional Officers. The board may elect or appoint a general
manager, one or more assistant secretaries and one or more assistant treasurers
as it may deem advisable, who shall hold office during the pleasure of the
board, and shall be paid such compensation as may be directed by the board.
Section 3. Powers. All officers of the Corporation shall, respectively, exercise
and perform such powers, duties, and functions as are generally exercised by the
like officers in corporation affairs and as may be directed by the Board of
Directors.
Section 4. Compensation. All officers of the Corporation may receive salaries or
other compensation if so ordered and fixed by the Board of Directors. The board
shall have authority to fix salaries in advance for stated periods or render the
same retroactive, as the board may deem advisable.
Section 5. Delegation of Duties. In the event of absence or inability of any
officer to act, the Board of Directors may delegate the powers or duties of such
officer to any other officer, director or person whom it may select.
Section 6. Removal of Officers. An officer or agent may be removed by a
two-thirds (2/3) vote of the Board of Directors at a meeting called for that
purpose whenever in its judgment the best interests of the Corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
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ARTICLE VI
Finance
Section 1. Reserve Funds. The Board of Directors, in its uncontrolled
discretion, may set aside, from time to time, out of the net profit or earned
surplus of the Corporation, such sum or sums as it deems expedient as a reserve
fund to meet contingencies, for equalizing dividends, for maintaining any
property of the Corporation, and for any other purpose.
Section 2. Banking. The monies of the Corporation shall be deposited in the name
of the Corporation in such bank or banks or trust company or trust companies, as
the Board of Directors shall designate, and may be drawn out only on checks
signed in the name of the Corporation by such person or persons as the Board of
Directors by appropriate resolution may direct. Notes and commercial paper, when
authorized by the board, shall be signed in the name of the Corporation by such
officer or officers or agent or agents as shall thereunto be authorized from
time to time by the Board of Directors.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be determined
by an appropriate resolution of the Board of Directors.
Section 4. Dividends. Subject to the provisions of the Articles of Incorporation
and the laws of the State of Colorado, the Board of Directors may declare
dividends whenever, and in such amounts, as in the Board's opinion the condition
of the affairs of the corporation shall render such advisable.
ARTICLE VII
Contracts, Loans and Checks
Section 1. Execution of Contracts. Except as otherwise provided by statute or by
these Bylaws, the Board of Directors may authorize any officer or agent of the
corporation to enter into any contract, or execute and deliver any instrument in
the name of, and on behalf of the corporation. Such authority may be general or
confined to specific instances and, unless so authorized, no officer, agent or
employee shall have any power to bind the corporation for any purpose, except as
may be necessary to enable the corporation to carry on its normal and ordinary
course of business.
Section 2. Loans. No loans shall be contracted on behalf of the corporation and
no negotiable paper shall be issued in its name unless authorized by the Board
of Directors. When so authorized, any officer or agent of the corporation may
effect loans and advances at any time for the corporation from any bank, trust
company or institution, firm, corporation or individual. An agent so authorized
may make and deliver promissory notes or other evidence of indebtedness of the
corporation and may mortgage, pelage, hypothecate or transfer any real or
personal property held by the corporation as security for the payment of such
loans. Such authority, in the Board of Directors' discretion, may be general or
confined to specific instances.
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Section 3. Checks. Checks, notes, drafts, and demands for money or other
evidence of indebtedness issued in the name of the corporation shall be signed
by such person or persons as designated by the Board of Directors and in the
manner the Board of Directors prescribes.
Section 4. Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or Taher depositories as the Board of Directors may select.
ARTICLE VIII
Waiver of Notice
Any shareholder, officer or director may waive, in writing, any notice required
to be given by law or under these By-Laws, whether before or after the time
stated therein.
ARTICLE IX
Action by Directors or Shareholders
Without a Meeting
Nothing in these By-Laws contained shall be construed so as to prevent any
action required to be taken at a meeting of the directors or shareholders of
this Corporation, or any action which may be taken at a meeting of directors or
shareholders, to be taken without a meeting if a consent in writing, setting
forth the action so taken shall be signed by all of the directors or
shareholders entitled to vote with respect tot he subject matter thereof.
ARTICLE X
Amendments
These By-Laws may be altered, amended, or repealed at any regular
meeting of the Board of Directors or a special meeting of the Board of Directors
called for that purpose upon a proper motion and adequate vote.
The above Amended and Restated By-Laws approved and adopted by the
Board of Directors June 28, 2001.