SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
INFORMATION STATEMENT
PURSUANT TO SECTION 14(C)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
SCHEDULE 14C
(RULE 14C-101)
Information Statement Pursuant to Section 14(c) of the Securities Exchange Act
of 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[ X ] Definitive Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
GLOBUS GROWTH GROUP, INC.
(Name of Registrant As Specified In Its Charter)
Payment of Filing Fee (Check the Appropriate Box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which the transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials
[ ] check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
GLOBUS GROWTH GROUP, INC.
44 WEST 24TH STREET
NEW YORK, NY 10010
INFORMATION STATEMENT
PURSUANT TO SECTION 14 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED, AND REGULATION 14C AND SCHEDULE 14C THEREUNDER
WE ARE NOT ASKING YOU FOR A PROXY
AND YOU ARE REQUESTED NOT TO SEND US A PROXY
INTRODUCTION
This notice and information statement (the "Information Statement") was mailed
on or about August 4, 2004 to the stockholders of record, as of July 29, 2004,
of Globus Growth Group, Inc., a New York corporation (the "Company") pursuant to
Section 14(c) of the Exchange Act to inform such stockholders that the majority
stockholders of the Company executed a written consent dated July __, 2004
providing for a reincorporation of the Company to the State of Delaware, through
a merger (which we refer to as the "Merger") of the Company with and into its
wholly owned subsidiary China Biopharmaceuticals Holdings, Inc. (the
"Subsidiary"), and certain other transactions and developments contemplated
thereby or incidental thereto. This notice and information statement attached
hereto shall be considered the notice required under Section 616 of the New York
Business Corporation Law (the "BCL").
Our board of directors has unanimously approved the Merger and all the
transactions and developments contemplated by the Agreement and Plan of Merger
(the "Merger Agreement") entered into by and between the Company and the
Subsidiary and dated July 3, 2004, as have stockholders representing a majority
of our issued and outstanding shares of common stock. Accordingly, your approval
is not required and is not being sought.
Please read this notice carefully. It describes the essential terms of the
Merger, with the attendant five for seven (5 for 7) reverse stock split and
contains certain information concerning the Merger. The Merger Agreement is
attached to this Information Statement as Annex A. Additional information about
the Company is contained in its periodic and current reports filed with the
United States Securities and Exchange Commission (the "Commission"). These
reports, their accompanying exhibits and other documents filed with the
Commission may be inspected without charge at the Public Reference Section of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549.
Copies of such material may also be obtained from the Commission at prescribed
rates. The Commission also maintains a Web site that contains reports, proxy and
information statements and other information regarding public companies that
file reports with the Commission. Copies of these reports may be obtained from
the Commission's EDGAR archives at HTTP://WWW.SEC.GOV/INDEX.HTM.
The principal executive office of the Company is located at 44 West 24th Street
New York, NY 10010. The Company's telephone number is (212) 243-1000.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND NO STOCKHOLDERS' MEETING
WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN.
GLOBUS GROWTH GROUP, INC.
44 WEST 24TH STREET
NEW YORK, NY 10010
INFORMATION STATEMENT
PURSUANT TO SECTION 14 OF THE SECURITIES EXCHANGE ACT OF 1934
AND REGULATION 14C AND SCHEDULE 14C THEREUNDER
To our Stockholders:
NOTICE IS HEREBY GIVEN that the following action was taken pursuant to a Written
Consent of the Majority Stockholders of the Company:
1. Approval the Agreement and Plan of Merger and all transactions and
developments contemplated thereby, the purpose of which is to change
the state of incorporation of the Company from New York to Delaware
(the "Merger").
The Board of Directors has fixed the close of business on July 29,
2004, as the Record Date for determining the Stockholders entitled to Notice of
the foregoing.
The Company has asked brokers and other custodians, nominees and
fiduciaries to forward this Information Statement to the beneficial owners of
the Common Stock held of record by such persons and will reimburse such persons
for out-of-pocket expenses incurred in forwarding such material.
This Information Statement will serve as written Notice to
stockholders pursuant to Section 615 of the BCL.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND NO STOCKHOLDERS' MEETING
WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN.
By order of the Board of Directors,
August 4, 2004 Stephen E. Globus
Chairman & CEO
TABLE OF CONTENTS
Page
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS .........................ii
THE MERGER ................................................................ 1
Description of the Merger ................................................. 1
Summary Term Sheet ........................................................ 1
Material Terms of the Merger .............................................. 4
Terms of the Merger Agreement ............................................. 4
Certain United States Federal Income Tax Consequences ..................... 5
Accounting Treatment ...................................................... 5
Appraisal Rights .......................................................... 6
Interest of Certain Persons in the Merger ................................. 6
Recent Events ............................................................. 6
Security Ownership of Certain Beneficial Owners and Management ............ 7
Description of Securities ................................................. 8
Comparison of Rights of Security-holders .................................. 9
SOLICITATION OF PROXIES ...................................................13
SHAREHOLDER PROPOSALS .....................................................13
ANNEX A - Merger Agreement ................................................
ANNEX B - Certificate of Incorporation of the Subsidiary ..................
ANNEX C - Bylaws of the Subsidiary ........................................
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Information included in this Information Statement may contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended and Section 21E of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). This information may involve known and unknown
risks, uncertainties and other factors which may cause our actual results,
performance or achievements to be materially different from our future results,
performance or achievements expressed or implied by any forward-looking
statements. Forward-looking statements, which involve assumptions and describe
the our future plans, strategies and expectations, are generally identifiable by
use of the words "may," "will," "should," "expect," "anticipate," "estimate,"
"believe," "intend" or "project" or the negative of these words or other
variations on these words or comparable terminology. These forward-looking
statements are based on assumptions that may be incorrect, and there can be no
assurance that these projections included in these forward-looking statements
will come to pass. Our actual results could differ materially from those
expressed or implied by the forward-looking statements as a result of various
factors. We undertake no obligation to update publicly any forward-looking
statements for any reason, even if new information becomes available or other
events occur in the future.
THE MERGER
DESCRIPTION OF THE MERGER
On July 3, 2004, an Agreement and Plan of Merger was signed by and
between our company and China Biopharmaceuticals Holdings, Inc., a
corporation incorporated in the State of Delaware (which we refer to as the
"Subsidiary"). The Agreement and Plan of Merger is referred to in this
Information Statement as the Merger Agreement and is attached as Annex A hereto.
The Merger Agreement provides for a tax-free reorganization pursuant to
the provisions of Section 368 of the Internal Revenue Code, whereby we will be
merged with and into the Subsidiary, our separate corporate existence shall
cease, and the Subsidiary shall continue as the surviving corporation of the
merger (the "Merger"). In the Merger, all issued and outstanding shares of our
common stock shall be converted into shares of common stock of the Subsidiary
with no action required on the part our shareholders on the basis of seven for
five (7 for 5).
Our board has approved a resolution that our state of incorporation be
changed from New York to Delaware and shareholders holding the requisite
majority of the voting power of our shares of our common stock have consented in
writing to the Reincorporation in approving the terms of the Merger and the
Merger Agreement. While, the Reincorporation in Delaware will not result in any
change in our business, management, assets, liabilities or net worth, your
attention is specifically directed to the section entitled "Recent Events"
below. Reincorporation in Delaware will allow us to take advantage of certain
provisions of the corporate laws of Delaware.
The following are answers to some of the questions about the Merger
that you, as one of our shareholders, may have. We urge you to read this
Information Statement, including the Merger Agreement, carefully because the
information in this section is not complete.
Summary Term Sheet
Who are we Merging with?
We are merging with China Biopharmaceuticals Holdings, a Delaware
corporation to which we refer as the Subsidiary.
Has the Board of Directors approved the Merger?
Yes. The Merger Agreement was executed on July 3, 2004. Our board of
directors approved the Merger Agreement, and all transactions and developments
contemplated thereby and obtained the requisite written consent of our majority
shareholders therefor on July 3, 2004.
How will the Merger work?
The Merger will be a very simple, straight-forward transaction.
We will merge with and into the Subsidiary and cease to exist as a separate
entity. The Subsidiary will be the surviving corporation.
Do I have the right to vote on the Merger?
No, you do not. The requisite shareholder approval has already been
obtained by our board of directors.
How do I exchange my shares of common stock?
You do not. Your shares will automatically be converted into shares
of common stock of the Subsidiary without any action taken on your part.
How many shares will I have after the Merger?
The number of shares you own will be multiplied by the quotient derived
by dividing 5 by 7, or
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approximately 71.43% of the number of shares you own today.
What is the conversion ratio?
The ratio is five-for-seven.
Is any shareholder receiving different treatment from any other shareholder?
No. All shareholders are being treated equally.
What are the benefits of the reincorporation?
The purpose of the reincorporation is to change the state of our
incorporation of from New York to Delaware. The reincorporation is intended to
permit us to be governed by the Delaware General Corporation Law (which we refer
to as the "GCL") rather than by the New York Business Corporation Law (which
we refer to as the "BCL").
The principal reasons that led our board of directors to determine
that reincorporation in Delaware is in the best interests of our shareholders
are outlined below:
(i) The State of Delaware has long been the leader in adopting,
construing and implementing comprehensive, flexible
corporation laws that are conducive to the operational needs
and independence of corporations domiciled in that State;
(ii) The corporation law of Delaware is widely regarded as the most
extensive and well-defined body of corporate law in the United
States;
(iii) Both the legislature and the courts in Delaware have
demonstrated an ability and a willingness to act quickly and
effectively to meet changing business needs, and
(iv) The Delaware judiciary has acquired considerable expertise in
dealing with complex corporate issues. Moreover, the Delaware
courts have repeatedly shown their willingness to accelerate
the resolution of complex corporate issues to meet the needs
of parties engaged in corporate litigation.
We anticipate that the GCL will continue to be interpreted and construed
in significant court decisions, thus lending greater predictability and guidance
in managing and structuring the internal affairs of our company and its
relationships and contacts with others. In addition, see "Comparison of Rights
of Security-holders" below.
What are the disadvantages of the reincorporation?
Despite the belief of our board that the reincorporation is in the best
interests of our company and that of our shareholders, the BCL and the GCL
differ in some respects. The GCL may not afford stockholders the same rights as
the BCL. On balance, however, we believe it is favorable for us to reincorporate
in Delaware.
What is the effect of the reincorporation on our company?
The reincorporation has been unanimously approved by our board of
directors, and we have obtained the requisite written consent of our majority
shareholders for the Merger Agreement. The Merger will become effective when a
certificate of merger is filed with each of the Secretary of State of Delaware
and the Secretary of State of New York, respectively. This filing is anticipated
to be made as soon as permitted by the notice requirements of the Exchange Act
or as early as practicable thereafter. At the effective time of the Merger:
We will merge with and into the Subsidiary, with the Subsidiary being the
surviving corporation;
The number of our shares of common stock issued and outstanding will be
reduced from 3.5 million to 2.5 million, or by approximately 71.43%;
We will operate under the name China Biopharmaceuticals Holdings, Inc.;
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We will cease to be governed by the BCL and will be governed by the GCL;
and
The Subsidiary will be governed by its certificate of incorporation and
bylaws, which we have attached as Annex B and Annex C, respectively, to this
information statement.
Will our ticker symbol change after the reincorporation?
Yes, it will, because our name will change. However, we are not presently
aware of the symbol that the Subsidiary will be assigned. Our shares of common
stock are currently traded on the pink sheets under the symbol "GPIX."
Will the charter documents be amended in the Merger?
The Subsidiary's certificate of incorporation will not be materially
different from that of our certificate of incorporation with the exception that
the certificate of incorporation of the Subsidiary will provide for the
authorization of preferred shares and permit its board of directors to issue
such shares.
How do the rights of shareholders compare before and after the reincorporation?
Each share of the Subsidiary's common stock outstanding after the
effective time of the Merger will entitle the holder thereof to voting rights,
dividend rights and liquidation rights substantially equivalent to the rights of
holders of our common stock prior to the effective time of the Merger (except as
provided below - see "Comparison of Rights of Security-holders"), subject to the
diminution in their number resulting from the Conversion Ratio.
We are organized as a corporation under the laws of New York. After the
effective time of the Merger, we will be a corporation incorporated under the
laws of Delaware. As a New York corporation, we are governed by; the BCL, our
certificate of incorporation and our bylaws. As a Delaware corporation we will
be governed by; the GCL, the Subsidiary's certificate of incorporation, attached
to this information statement as Annex B, as may be ------- further amended from
time to time and the Subsidiary's bylaws, attached to this information statement
as Annex C, ------- as may be further amended from time to time.
Certain material differences between the applicable New York and
Delaware law and among these documents are summarized below. The comparison of
certain rights of our shareholders before and after the reincorporation set
forth below is not complete and is subject to and qualified in its entirety by
reference to New York law, Delaware law, the Subsidiary's certificate of
incorporation, the Subsidiary's bylaws, and our certificate of incorporation and
our bylaws, copies of which may be obtained from us by writing us at 44 West
24th Street New York, NY 10010, attention Secretary.
Will the shares to be issued in the Merger be freely trading?
The shares that are not currently freely trading will remain restricted.
No shares will be "issued" as that term is typically understood. Rather,
currently outstanding shares will be converted into shares of the Subsidiary in
accordance with the Conversion Ratio. We do not anticipate that the Merger will
in any way affect the status of our shares that are currently freely trading.
When do you expect the Merger to be completed?
We hope to complete the Merger as soon as possible, assuming that all the
conditions to the closing of the Merger as set forth in the Merger Agreement are
completed to the satisfaction of the parties.
What are the tax consequences of the Merger?
The Merger is intended to qualify as a tax-free reorganization for United
States federal income tax purposes. If the Merger does so qualify, no gain or
loss would generally be recognized by our U.S. shareholders upon conversion of
their shares of common stock in our company into shares of common stock in the
Subsidiary pursuant to the Merger. We believe, but cannot assure you, that there
will no tax consequences for holders of our shares. You are urged to consult
your own tax advisor for tax implications related to your particular situation.
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Who can help answer my questions?
If you have more questions about the Merger you should contact Arthur S.
Marcus, Esq., at:
Gersten, Savage, Kaplowitz, Wolf & Marcus, LLP
101 East 52nd Street, 9th Floor
New York, NY 10022
Telephone No.: (212) 752-9700
Facsimile No.: (212) 980-5192
If you have questions about our business, you should contact Stephen E. Globus,
CEO, at:
Globus Growth Group, Inc.
44 West 24th Street
New York, NY 10010.
Telephone No.: (212) 243-1000
Facsimile No.: (212) 645-0332
Material Terms of the Merger
In order to effect the reincorporation (sometimes referred to as the
"Reincorporation") of Globus Growth Group, Inc. (the "Company") to Delaware, the
Company will be merged with and into China Biopharmaceuticals Holdings, a newly
formed company incorporated in Delaware (the "Subsidiary"). Prior to the merger
(the "Merger"), the Subsidiary will not have engaged in any activities except in
connection with the proposed transaction. The mailing address and telephone
number of the Subsidiary and its telephone number are the same as those of the
Company. As part of its approval of the Company's reincorporation in Delaware,
the board of directors of the Company (the "Board") has approved, and has
recommended the approval to its shareholders (the "Shareholders"), the Agreement
and Plan of Merger (the "Merger Agreement") pursuant to which the Company will
be merged with and into the Subsidiary. The Company has obtained the requisite
approval of its shareholders to consummate the Merger.
The full texts of the Merger Agreement, the certificate of
incorporation (the "Certificate") and bylaws (the "Bylaws") of the successor
Delaware corporation under which the Company's business will be conducted after
the Merger are attached hereto as Annex A, Annex B and Annex C respectively. The
discussion contained in this Information Statement is qualified in its entirety
by reference to such Annexes.
According to the terms of the Merger Agreement by and between the
Company on the one side and the Subsidiary on the other side, the Company and
the Subsidiary have determined that the Merger is in the best interests of the
Shareholders. The Merger is to be effected through a conversion of the shares of
common stock currently issued and outstanding (the "Common Shares") into shares
of common stock of the Subsidiary (the "Common Stock") according to the
conversion ratio of five shares of Common Stock for seven Common Shares (the
"Conversion Ratio").
The Certificate provides for so-called "blank check" preferred stock
(the "Blank Check Preferred Stock"). The Board believes that it is advisable and
in the best interests of the Subsidiary and its stockholders (the
"Stockholders") to have available for issuance such shares in order to provide
the Subsidiary with greater flexibility in financing its continued operations
and undertaking capital restructuring, financing and future acquisitions. The
Board believes that Blank Check Preferred Stock will provide the Subsidiary with
a capital structure better suited to meet its short and long term capital needs.
Having the Blank Check Preferred Stock will permit the Subsidiary to negotiate
the precise terms of an equity instrument by simply creating a new series of
preferred stock without
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incurring the cost and delay in obtaining stockholder approval. This will, in
the anticipation of the Board, allow the Subsidiary to more effectively
negotiate with, and satisfy the precise financial criteria of, any investor or
transaction in a timely manner.
Consequently, once authorized, the dividend or interest rates, conversion rates,
voting rights, redemption prices, maturity dates and similar characteristics of
such preferred stock will be determined by the Subsidiary's board of directors
(the "New Board"), without the necessity of obtaining approval of the
Stockholders.
The terms of the Merger Agreement are more fully described below.
Terms of the Merger Agreement
The following discussion summarizes the material terms of the Merger Agreement
but does not purport to be a complete statement of all provisions of the Merger
Agreement and is qualified in its entirety by reference to the Merger Agreement,
a copy of which is attached to this Information Statement as Annex A.
Shareholders are urged to read the Merger Agreement carefully as it is the legal
document governing the Merger.
The Merger. Subject to the terms and conditions of the Merger Agreement, the
Company shall be merged with and into the Subsidiary, the Company's separate
legal existence shall cease and the Subsidiary shall continue as the surviving
corporation.
Effect of the Merger. The presently issued and outstanding Common Shares shall
be converted on a five-for-seven basis into shares of Common Stock. The
Subsidiary, as the surviving corporation, shall continue unaffected and
unimpaired by the Merger with all of its purposes and powers. The Subsidiary
shall be governed by the GCL and succeed to all rights, assets, liabilities and
obligations of the Company in accordance with the GCL.
Certificate of Incorporation and Bylaws of the Subsidiary Following the Merger.
The Merger Agreement provides that the Certificate of Incorporation and Bylaws
of the Subsidiary, as in effect at the Effective Time, will be the Certificate
of Incorporation and Bylaws, respectively, of the surviving corporation
following the Merger.
Directors of the Subsidiary Following the Merger. The Merger Agreement
provides that the sole director of the Subsidiary as of the Effective Time shall
remain the sole director of the Subsidiary, who shall serve as such until his
successor is duly elected or appointed and qualified. Stephen E. Globus, our
chairman and chief executive officer, is presently the sole director and chief
executive officer of the Subsidiary.
Certain United States Federal Income Tax Consequences
The following summary of certain material federal income tax consequences of the
Merger does not purport to be a complete discussion of all of the possible
federal income tax consequences and is included for general information only.
Further, it does not address any state, local, foreign or other income tax
consequences, nor does it address the tax consequences to shareholders that are
subject to special tax rules, such as banks, insurance companies, regulated
investment companies, personal holding companies, foreign entities, nonresident
alien individuals, broker-dealers and tax-exempt entities. The discussion is
based on the United States federal income tax laws as of the date of this
Information Statement. Such laws are subject to change retroactively as well as
prospectively. This summary also assumes that the Common Shares are held as
"capital assets," as defined in the Internal Revenue Code of 1986, as amended.
The tax treatment of a shareholder may vary depending on the facts and
circumstances of such shareholder.
EACH SHAREHOLDER IS URGED TO CONSULT WITH SUCH SHAREHOLDER'S TAX ADVISOR WITH
RESPECT TO THE PARTICULAR TAX CONSEQUENCES OF THE MERGER.
The Merger is intended to qualify for federal income tax purposes as a
"reorganization" within the meaning of Section 368(a)(1)(F) of the Code. In
general, no gain or loss will be recognized for federal income tax purposes by
holders of Common Shares with respect thereto on the conversion of their Common
Shares into shares of Common
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Stock and no gain or loss will be recognized for federal income tax purposes by
the Company or the Subsidiary. No gain or loss should be recognized by a
shareholder as a result of the Reverse Split. The aggregate tax basis of the
shares received in the Reverse Split will be the same as the shareholder's
aggregate tax basis in the shares exchanged. The shareholder's holding period
for the shares received in the Reverse Split will include the period during
which the shareholder held the shares surrendered as a result of the Reverse
Split.
The Company's views regarding the tax consequences of the Merger and the Reverse
Split are not binding upon the Internal Revenue Service or the courts, and there
is no assurance that the Internal Revenue Service or the courts would accept the
positions expressed above. The state and local tax consequences of the Merger
and the Reverse Split may vary significantly as to each shareholder, depending
on the state in which such shareholder resides.
Accounting Treatment
The transaction is expected to be accounted for as a reverse acquisition in
which the Company is the accounting acquiror and the Subsidiary is the legal
acquiror. The management of the Company will be the management of the
Subsidiary. Since the Merger is expected to be accounted for as a reverse
acquisition and not a business combination, no goodwill is expected to be
recorded in connection therewith and the costs incurred in connection with the
Merger are expected to be accounted for as a reduction of additional paid-in
capital.
Appraisal Rights
Pursuant to the BCL, the holders of the Common Shares are not entitled to
dissenters' rights in connection with the Reincorporation. Furthermore, the
Company does not intend to independently provide those stockholders with any
such rights.
Interests of Certain Persons in the Merger
No director, executive officer, associate of any director or executive officer,
or any other person has any substantial interest, direct or indirect, by
security holdings or otherwise, resulting from the Merger, which is not shared
by all other Shareholders pro rata, and in accordance with their respective
interests.
Recent Events
Share Exchange
As reported in the Company's Form 10-K filed with the Commission on June 14,
2004, the Company entered into a share exchange agreement dated June 8, 2004
(the "Exchange Agreement") entered into by: (i) the Company; (ii) the
Subsidiary; (iii) China Biopharmaceuticals Corp., a British Virgin Islands
company ("CBC"), the holding company which shall own a 90% ownership interest in
NanJing Keyuan Pharmaceutical R&D Co., Ltd. ("Keyuan"); (iv) Keyuan, a company
established in the People's Republic of China and engaged in the drug discovery
and manufacturing business in China, and (v) Peng Mao as the sole shareholder of
CBC (the "CBC Shareholder"). The closing of the Exchange Agreement is subject to
the Company's due diligence review and obtaining the necessary approvals for the
transactions contemplated thereby (the "Exchange"). Pursuant to the terms of the
Exchange Agreement, CBC is to become a wholly-owned subsidiary of the Subsidiary
in consideration for the issuance to the CBC Shareholder of 90% of the issued
and outstanding shares of Common Stock of the Subsidiary, on a fully diluted
basis. The Subsidiary shall in consideration therefor be issued 100% of the
shares of capital stock of CBC on a fully diluted basis. The Exchange Agreement
provides that the Exchange is to become effective immediately subsequent to the
closing of the Merger.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of the date of this Information Statement, the Company's authorized
capitalization consisted of 4,500,000 Common Shares, par value $.01 per share.
As of the date of this Information Statement, there were 2,335,757 Common Shares
outstanding, all of which were fully paid, non-assessable and entitled to vote.
Each Common Share entitles its holder to one vote on each matter submitted to
the Shareholder.
The following table sets forth, as of the date of this Information
Statement, the number of Common Shares of the Company owned by (i) each person
who is known by the Company to own of record or beneficially five percent (5%)
or more of the Company's outstanding shares, (ii) each director of the Company,
(iii) each of the executive officers, and (iv) all directors and executive
officers of the Company as a group. Unless otherwise indicated, each of the
persons listed below has sole voting and investment power with respect to the
shares beneficially owned.
Number of Common Shares Percentage of Common Shares
Name and Address of Beneficial Owner(1) Beneficially Owned Beneficially Owned
- --------------------------------------- ------------------ ------------------
Stephen E. Globus 514,750(2) 22%
Richard D. Globus 513,750 22%
Ronald P. Globus 500,000 21%
Ronald J. Frank 1,000 *
Stanley Wunderlich - - - - - -
Joseph Mancuso - - - - - -
Jane Globus (3) 312,292 13%
All Directors and Officers as a group 1,044,500 45%
(6 persons)
- ---------
*less than one percent
(1) Beneficial ownership is determined in accordance with the Rule 13d-3(a) of
the Exchange Act, and generally includes voting or investment power with respect
to securities. Pursuant to the rules and regulations of the Commission, shares
of common stock that an individual or group has a right to acquire within 60
days pursuant to the exercise of options or warrants are deemed to be
outstanding for the purposes of computing the percentage ownership of such
individual or group, but are not deemed to be outstanding for the purposes of
computing the percentage ownership of any other person shown in the table.
Except as subject to community property laws, where applicable, the person named
above has sole voting and investment power with respect to all shares of the
Company's common stock shown as beneficially owned by him.
(2) Includes 1,000 Common Shares held for benefit of Mr. Stephen Globus' son and
as to which Mr. Globus disclaims beneficial ownership.
(3) Jane Globus is the mother of the three Globus brothers, all of whom disclaim
any beneficial ownership of the shares owned by her.
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DESCRIPTION OF SECURITIES
Common Stock
The Company is authorized to issue 4,500,000 shares of common stock, par value
$0.01 per share (the "Common Shares"), of which as of the date hereof 2,335,757
Common Shares are outstanding. All outstanding Common Shares are validly
authorized and issued, fully paid, and non-assessable.
The holders of the Common Shares are entitled to one vote for each share held of
record on all matters submitted to a vote of Shareholders. Holders of the Common
Shares are entitled to receive ratably dividends as may be declared by the Board
out of funds legally available therefor. In the event of a liquidation,
dissolution or winding up of the Company, holders of the Common Shares are
entitled to share ratably in all assets remaining, if any, after payment of
liabilities. Holders of the Common Shares have no preemptive rights and have no
rights to convert their Common Shares into any other securities.
Preferred Stock
The Company is authorized to issue 500,000 shares of preferred stock; no such
shares are presently issued or outstanding.
The Subsidiary is authorized to issue 200,000 shares of Common Stock and
10,000,000 shares of "blank check" preferred stock, par value $.001 per share
("Blank Check Preferred Stock"), none of which is issued or currently
contemplated to be issued. The New Board is vested with authority to divide the
shares of Blank Check Preferred Stock into series and to fix and determine the
relative rights and preferences of the shares of any such series.
The Subsidiary was incorporated with the ability to issue shares of Blank Check
Preferred Stock and provisions authorizing the New Board to designate and issue
such shares because the Board believes that it is advisable and in the best
interests of the surviving corporation to have available shares of preferred
stock to provide it with greater flexibility in financing its operations and
undertaking capital restructuring, financing and future acquisitions. The Board
believes that the Blank Check Preferred Stock will provide the Subsidiary with a
capital structure better suited to meet its short and long term capital needs.
Having Blank Check Preferred Stock will permit the New Board to negotiate the
precise terms of an equity instrument by simply creating a new series of
preferred stock without incurring the cost and delay in obtaining stockholder
approval. The Board believes that this will allow the Subsidiary to more
effectively negotiate with, and satisfy the precise financial criteria of, any
investor or transaction in a timely manner.
Consequently, once authorized, the dividend or interest rates, conversion rates,
voting rights, redemption prices, maturity dates and similar characteristics of
such preferred stock will be determined by the New Board, without the necessity
of obtaining approval of the Stockholders. Please see the Certificate attached
as Annex B hereto for the provision authorizing the Blank Check Preferred Stock.
Transfer Agent
The transfer agent of the Common Shares is North American Stock Transfer.,
located at 147 W. Merrick Road, Freeport, NY 11520.
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COMPARISON OF THE RIGHTS OF SECURITY-HOLDERS
General
The Board has recommended that the Company's state of incorporation be changed
from New York to Delaware. Reincorporation in Delaware will not result in any
change in the business, management, assets, liabilities or net worth of the
Company. Reincorporation in Delaware will allow the Company to take advantage of
certain provisions of the corporate laws of Delaware. The purposes and effects
of the proposed change are summarized below.
Upon acceptance for filing of the appropriate certificates of merger by the
Secretary of State of Delaware and the Secretary of State of New York, the
Company will be merged with and into the Subsidiary pursuant to the Merger
Agreement, resulting in a change in the Company's state of incorporation. The
Company will then be subject to the Delaware General Corporation Law (the "GCL")
and the Certificate of Incorporation and Bylaws set forth in Annex B and Annex
C, respectively. Upon the effective time of the Reincorporation, all outstanding
shares of stock of the Company will automatically be converted into shares of
the corresponding class of stock of the Subsidiary in accordance with the
Conversion Ratio.
IT WILL NOT BE NECESSARY FOR SHAREHOLDERS OF THE COMPANY TO EXCHANGE THEIR
EXISTING STOCK CERTIFICATES FOR CERTIFICATES OF THE SUBSIDIARY. OUTSTANDING
STOCK CERTIFICATES OF THE COMPANY SHOULD NOT BE DESTROYED OR SENT TO THE
COMPANY.
The Board believes that the Reincorporation will provide greater flexibility for
both the management and business of the Company.
Delaware is a favorable legal and regulatory environment in which to operate.
For many years, Delaware has followed a policy of encouraging incorporation in
that state and, in furtherance of that policy, has adopted comprehensive, modern
and flexible corporate laws which are periodically updated and revised to meet
changing business needs. As a result, many major corporations have initially
chosen Delaware for their domicile or have subsequently reincorporated in
Delaware. The Delaware courts have developed considerable expertise in dealing
with corporate issues, and a substantial body of case law has developed
construing Delaware law and establishing public policies with respect to
Delaware corporations thereby providing greater predictability with respect to
corporate legal affairs. In addition, many investors and securities
professionals are more familiar and comfortable with Delaware corporations than
corporations governed by the laws of other jurisdictions, even where the laws
are similar.
The Company is a New York corporation and the New York Business Corporation Law
(the "BCL") and the Certificate of Incorporation and the Bylaws of the Company
govern the rights of its shareholders. The Subsidiary is a Delaware corporation
and the rights of it shareholders are governed by the GCL and the Certificate of
Incorporation and Bylaws of the Subsidiary.
Significant Differences Between the Corporation Laws of New York and
Delaware
Differences Related Primarily to Charter Documents
Authorized Capital
The Company. The authorized capital stock of the Company consists of 4,500,000
shares of $0.01 par value common stock (the "Common Shares") and 500,000 shares
of preferred stock. There are 2,335,757 such Common Shares issued and
outstanding as of the date hereof and no shares of preferred stock issued or
outstanding.
The Subsidiary. The authorized capital stock of the Subsidiary consists of
200,000,000 shares of common stock,
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par value $0.01 per share (the "Common Stock"), and 10,000,000 shares of blank
check preferred stock, par value $0.01 per share (the "Blank Check Preferred
Stock"). As of the date of the Merger Agreement, the Subsidiary's issued and
outstanding share capital consisted of one share of Common Stock, held in the
name of the Company. The Subsidiary's certificate of incorporation (the
"Certificate") authorizes its board of directors to issue shares of Blank Check
Preferred Stock in one or more series and to fix the designations, preferences,
powers and rights of the shares to be included in each series (see "Description
of Securities").
Voting Power of Common Stock
The Company. Each holder of Common Shares has the right to cast one vote for
each such Common Share held of record on all matters voted on by the
Shareholders, including the election of directors. Shareholders have no
cumulative voting rights
The Subsidiary. Each holder of shares of Common Stock has the right to cast one
vote for each share of Common Stock held of record on all matters voted on by
the Stockholders, including the election of directors. Stockholders have no
cumulative voting rights.
Board of Directors
The Company. The Company's bylaws do not require that a specific number of
directors shall serve on its board. The Company's board presently consists of
five (5) directors. Directors are elected at the annual meeting of shareholders,
and at each annual meeting thereafter. Directors are elected by a majority of
the votes cast at a meeting of shareholders by such shareholders as are entitled
to vote on the election of directors.
The Subsidiary. The Subsidiary's bylaws do not require that a specific number of
directors shall serve on its board. The Subsidiary's board presently consists of
one (1) director. Directors are elected at the annual meeting of stockholders,
and at each annual meeting thereafter. Directors are elected by a majority of
the votes cast at a meeting of stockholders by such stockholders as are entitled
to vote on the election of directors.
CERTAIN DIFFERENCES BETWEEN NEW YORK AND DELAWARE CORPORATE LAWS
New York law and Delaware law differ in many respects. Certain of the
significant differences that could materially affect the rights of the
Shareholders are discussed below.
REMOVAL OF DIRECTORS
Delaware law provides that any or all of the directors may be removed, with or
without cause, by the affirmative vote of the holders of a majority of the
shares of common stock entitled to vote in an election of directors. Under New
York law, directors may be removed for cause by vote of the shareholders. The
certificate of incorporation or by-laws may grant the board of directors the
power to remove a director for cause, unless the director to be removed was
elected by (1) cumulative voting, (2) the holders of the shares of any class or
series or (3) the holders of bonds voting as a class.
AMENDMENT TO BY-LAWS
Under Delaware law, the power to amend the Subsidiary's by-laws is vested solely
in its common stockholders; the Subsidiary's certificate of incorporation,
however, authorizes its board of directors to make, alter or repeal the by-laws,
as permitted by Delaware law. Under New York law, a corporation's by-laws may be
amended by a majority of the votes of shares then entitled to vote in the
election of directors or, when so provided in the corporation's certificate of
incorporation or by-laws, by the board of directors.
STOCKHOLDER LISTS AND INSPECTION RIGHTS
Under Delaware law, any stockholder may inspect the Subsidiary's stock ledger, a
list of its stockholders and its other books and records for any proper purpose
reasonably related to such person's interest as a stockholder. A list of
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stockholders is to be open to the examination of any stockholder, for any
purpose germane to a meeting of stockholders, during ordinary business hours,
for a period of at least 10 days prior to such meeting. The list is also to be
produced and kept at the place of the meeting during the entire meeting, and may
be inspected by any stockholder who is present. New York law provides that a
shareholder of record has a right to inspect the Company's shareholder minutes
and record of shareholders, during usual business hours, on at least five days'
written demand. The examination of the shareholder minutes and record of
shareholders must be for a purpose reasonably related to the shareholder's
interest as a shareholder.
CORPORATION'S BEST INTERESTS
Delaware law does include a specific provision regarding actions by the
directors in the corporation's best interests. Under New York law, a director of
a New York corporation, in taking action, including any action which may involve
a change in control of the corporation, is entitled to consider both the
long-term and short-term interests of the corporation and its shareholders and
the effects that the corporation's actions may have in the short-term or
long-term upon any of the following: - the prospects of growth, development,
productivity and profitability of the corporation, - the corporation's current
employees, - the corporation's retired employees and others receiving or
entitled to receive retirement, welfare or similar benefits from or pursuant to
any plan sponsored, or agreement entered into, by the corporation, - the
corporation's customers and creditors, and - the ability of the corporation to
provide, as a going concern, goods, services, employment opportunities and
employment benefits and otherwise contribute to the communities in which it does
business.
AUTHORIZATION OF CERTAIN ACTIONS
Delaware law requires the approval of the board of directors of a Delaware
corporation and of at least a majority of such corporation's outstanding shares
entitled to vote thereon to authorize a merger or consolidation, except in
certain cases where such corporation is the surviving corporation and its
securities being issued in the merger do not exceed 20% of the shares of common
stock of such corporation outstanding immediately prior to the effective date of
the merger. A sale of all or substantially all of a Delaware corporation's
assets or a voluntary dissolution of a Delaware corporation requires the
affirmative vote of the board of directors and at least a majority of such
corporation's outstanding shares entitled to vote thereon. Under New York law,
the consummation of a merger, consolidation, dissolution or disposition of
substantially all of the assets of a New York corporation (such as the Company)
requires the approval of such corporation's board of directors and two-thirds of
all outstanding shares of the corporation entitled to vote thereon and, in
certain situations, the affirmative vote by the holders of a majority of all
outstanding shares of each class or series of shares.
INDEMNIFICATION AND LIMITATION OF LIABILITY OF DIRECTORS AND OFFICERS
Section 145 of GCL permits a Delaware corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than one by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, against
judgements, fines, amounts paid in settlement and reasonable expenses, including
attorneys' fees actually and necessarily incurred as a result of such action or
proceeding, if such director or officer acted, in good faith, for a purpose
which he reasonably believed to be in or not opposed to the best interests of
the corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful. Section 102 of the
GCL permits a corporation to include in its certificate of incorporation a
provision eliminating or limiting a director's liability to a corporation or its
stockholders for monetary damages for breaches of fiduciary duty. GCL Section
102 provides, however, that liability for breaches of the duty of loyalty, acts
or omissions not in good faith or involving intentional misconduct, or knowing
violation of the law, and the unlawful purchase or redemption of stock or
payment of unlawful purchase or redemption of stock or payment of unlawful
dividends or the receipt of improper personal benefits cannot be eliminated or
limited in this manner.
With certain limitations, Sections 721 through 726 of the BCL permit a
corporation to indemnify its directors and officers made, or threatened to be
made, a party to an action or proceeding by reason of the fact that such person
was a director or
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officer of such corporation unless a judgement or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the result of active and deliberative dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact financial profit or other advantage to which he or she
was not legally entitled. Section 402(b) of the BCL permits New York
corporations to eliminate or limit the personal liability of directors to the
corporation or its shareholders for damages for any breach of duty in such
capacity except liability (i) of a director (a) whose acts or omissions were in
bad faith, involved intentional misconduct or a knowing violation of law, (b)
who personally gained a financial profit or other advantage to which he or she
was not legally entitled or (c) whose acts violated certain other provisions of
New York law or (ii) for acts or omissions prior to May 4, 1988.
DIVIDENDS
Delaware law generally provides that the directors of every corporation, subject
to any restrictions contained in its certificate of incorporation, may declare
and pay dividends out of surplus or, when no surplus exists, out of net profits
for the fiscal year in which the dividend is declared and/or the preceding
fiscal year. Dividends may not be paid out of net profits if the capital of the
corporation is less than the amount of capital represented by the issued and
outstanding stock of all classes having a preference upon the distribution of
assets.
New York law generally provides that a corporation, subject to any restrictions
contained in its certificate of incorporation, may declare and pay dividends on
its outstanding shares, except when the corporation is insolvent or would
thereby be made insolvent. Dividends may be declared or paid out of surplus
only, so that net assets of the corporation after such declaration or payment
shall at least equal the amount of its stated capital.
BUSINESS COMBINATIONS
In general, Delaware law prohibits an interested stockholder of a Delaware
corporation (generally defined as a person who owns 15% or more of a
corporation's outstanding voting stock) from engaging in a business combination
with that corporation for three years following the date he or she became an
interested stockholder. The three-year moratorium is not applicable when: (i)
prior to the date the stockholder became an interested stockholder, the board of
directors of the corporation approved either the business combination or the
transaction that resulted in the stockholder becoming an interested stockholder,
(ii) upon consummation of the transaction which resulted in the stockholder
becoming an interested stockholder, he or she owned at least 85% of the
outstanding voting stock of the corporation (excluding shares owned by directors
who are also officers of the corporation and by certain employee stock plans),
or (iii) at or subsequent to such time, the business combination is approved by
the board of directors of the corporation and by the stockholder affirmative
vote at a meeting of stockholders of at least two-thirds of the outstanding
voting stock entitled to vote thereon, excluding shares owned by the interested
stockholder. These restrictions of Delaware law generally do not apply to
business combinations with an interested stockholder that are proposed
subsequent to the public announcement of, and prior to the consummation or
abandonment of, certain mergers, sales of 50% or more of a corporation's assets
or tender offers for 50% or more of a corporation's voting stock.
New York law prohibits certain business combinations between a New York
corporation and an "interested shareholder" for five years after the date that
the interested shareholder becomes an interested shareholder unless, prior to
that date, the board of directors of the corporation approved the business
combination or the transaction that resulted in the interested shareholder
becoming an interested shareholder. After five years, such business combination
is permitted only if (1) it is approved by a majority of the shares not owned by
the interested shareholder or (2) certain statutory fair price requirements are
met. An "interested shareholder" is any person who beneficially owns, directly
or indirectly, 20% or more of the outstanding voting shares of the corporation.
the Company's certificate of incorporation provides that certain transactions
with interested shareholders require the affirmative vote of two-thirds of the
voting stock of the Company, excluding any shares beneficially owned, directly
or indirectly, by any interested shareholder. An "interested shareholder" is
defined in the Company's certificate of incorporation as any person who
beneficially owns, directly or indirectly, 10% or more of the outstanding voting
shares of the Company.
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SOLICITATION OF PROXIES
The Company is making the making the mailing and will bear the costs associated
therewith. There will be no solicitations made. The Company will reimburse
banks, brokerage firms, other custodians, nominees and fiduciaries for
reasonable expenses incurred in sending this Information Statement to beneficial
owners of the Common Shares.
SHAREHOLDER PROPOSALS
There will be no further annual meetings of shareholders of the Company held.
By Order of the Board of Directors,
/s/ Stephen E. Globus,
Stephen E. Globus,
Chairman & CEO
August 4, 2004
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into on June 24, 2004, pursuant to Section 905 of the New York Business
Corporation Law (the "BCL") and Section 253 of the General Corporation Law of
the State of Delaware (the "GCL") by and between Globus Growth Group, Inc., a
New York corporation (the "Parent Corporation"), and China Biopharmaceuticals
Holdings, Inc., a Delaware corporation (the "Subsidiary Corporation"), being
sometimes referred to herein individually as the "Constituent Corporation" and
collectively as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, the Parent Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of New York
with an authorized capital stock (the "Parent Corporation Capital Stock")
consisting of 4,500,000 shares of common stock, $.01 par value (the "Parent
Corporation Common Stock") and 500,000 shares of preferred stock, $.01 par value
(the "Parent Corporation Preferred Stock"), of which 2,499,000 shares of Parent
Corporation Common Stock are issued and outstanding on the date hereof and no
shares of Parent Corporation Preferred Stock are issued and outstanding on the
date hereof;
WHEREAS, the Parent Corporation has no options (the "Parent Options")
or warrants (the "Parent Warrants") issued and outstanding;
WHEREAS, the Subsidiary Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
with an authorized capital stock consisting of 200,000,000 shares of common
stock $.01 par value (the "Subsidiary Corporation Common Stock") and 10,000,000
shares of "blank check" preferred stock $.01 par value (the "Subsidiary
Corporation Preferred Stock"), of which one share of the Subsidiary Corporation
Common Stock is issued and outstanding on the date hereof and held by the Parent
Corporation;
WHEREAS, the Subsidiary Corporation has no options (the "Subsidiary
Options") or warrants (the "Subsidiary Warrants") issued and outstanding;
WHEREAS, the Board of Directors of the Parent Corporation has
determined that, for purposes of effecting the reincorporation of the Parent
Corporation in the State of Delaware, it is advisable and in the best interests
of the Parent Corporation that the Parent Corporation merge with and into the
Subsidiary Corporation upon the terms and conditions set forth herein;
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have authorized and approved the merger of the Parent Corporation
with and into the Subsidiary Corporation subject to and upon the terms and
conditions of this Merger Agreement (the "Merger") and Section 905 of the BCL
and Section 253 of the DGCL, and have approved this Merger Agreement and
directed that it be executed by the undersigned officers and that it be
submitted to the shareholders of the Parent Corporation for their approval; and
WHEREAS, it is the intention of the Constituent Corporations that the
Merger shall be a tax-free reorganization within the meaning of Section 368 (a)
(1) (F) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE in consideration of the premises, which are hereby
incorporated into the terms hereof, and the mutual covenants and agreements
herein contained, and for the purpose of stating the terms and conditions of the
merger, the mode of effectuating the same, and other details and provisions that
are deemed desirable, the parties have agreed and do hereby agree, subject to
the terms and conditions set forth as follows:
ARTICLE I. TERMS OF MERGER
1.1 MERGER. On the Effective Time (as hereinafter defined), in
accordance with the provisions of
Section 905 of the BCL, Section 253 of the DGCL and Section 368(a)(1)(F) of the
Code, the Parent Corporation shall be merged with and into the Subsidiary
Corporation, which shall be sometimes referred to herein as the "Surviving
Corporation" upon the terms and conditions set forth in the subsequent
provisions of this Merger Agreement.
1.2 APPROVAL. This Merger Agreement shall be submitted for approval by
the stockholders of the Parent Corporation as provided by the laws of the states
of New York. After the approval or adoption thereof by the stockholders of the
Parent Corporation, in accordance with the requirements of the applicable laws,
all required documents shall be executed, filed, and recorded and all required
acts shall be done in order to accomplish the Merger under the provisions of the
laws of the states of New York and Delaware.
1.3 EFFECTIVE TIME. The Merger shall become effective when the last to
occur of the following actions shall have been completed:
(a) This Merger Agreement and the Merger shall have been adopted and
approved by the shareholders of the Parent Corporation in accordance with the
requirements of the BCL and the Subsidiary Corporation shall have taken all
requisite corporate action to effect the Merger pursuant to the GCL;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Merger Agreement shall have been satisfied or duly waived; and
(c) Executed Certificates of Merger meeting the requirements of the BCL
and the GCL shall have been filed with the Secretary of State of the State of
New York and the Secretary of State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Time."
1.4 EFFECT OF MERGER.
(a) As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of Parent Corporation Common
Stock, the presently issued and outstanding shares of Parent Corporation Common
Stock shall be converted on a five-for-seven (5 for 7) basis (the "Conversion
Ratio") into shares of Surviving Corporation Common Stock.
(b) The Subsidiary Corporation, as the Surviving Corporation in the
Merger, will continue to be governed by the laws of the State of Delaware and
the separate corporate existence of the Subsidiary Corporation and all of its
rights, privileges, immunities and franchises, public or private, and all of its
duties and liabilities as a corporation organized under the DGCL will continue
unaffected and unimpaired by the Merger.
(c) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of Parent Corporation
Common Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of Subsidiary Corporation Common Stock into which the
shares of Parent Corporation Common Stock represented by such certificates have
been converted in accordance with the Conversion Ratio and shall be so
registered on the books and records of the Subsidiary Corporation or its
transfer agent. The registered owner of any such outstanding stock certificate
shall, until such certificate shall have been surrendered for transfer, or
otherwise accounted for to Subsidiary Corporation or its transfer agent, have
and be entitled to exercise any voting or other right with respect to and to
receive any dividend or other distribution upon the shares of Subsidiary
Corporation Common Stock evidenced by such outstanding certificate as above
provided.
(d) At the close of business on the Effective Time, the existence of
the Parent Corporation as a distinct entity shall cease. At that time all
rights, franchises and interests of the Parent Corporation, respectively, in and
to every type of property, whether real, personal or mixed, of the Parent
Corporation and the Subsidiary Corporation, and all debts due to the Parent
Corporation or the Subsidiary Corporation on whatever account, and all other
things in action or belonging to each of said corporations, shall be vested in
the Subsidiary Corporation. All property, rights, privileges, powers and
franchises, and all and every other interest of the Parent Corporation or the
Subsidiary Corporation as of the Effective Date, including, but not limited to,
all patents, trademarks, licenses, registrations, and
all other intellectual properties, shall thereafter be the property of the
Subsidiary Corporation to the same extent and effect as such was of the
respective Constituent Corporations prior to the Effective Date, and the title
to any real estate vested by deed or otherwise in the Parent Corporation and the
Subsidiary Corporation shall not revert or be in any way impaired by reason of
the Merger; provided, however, that all rights of creditors and all liens upon
any property of the Parent Corporation or the Subsidiary Corporation shall
thenceforth attach to the Subsidiary Corporation and may be enforced against it
to the same extent as if said debts, liabilities, and duties had been incurred
or contracted by the Subsidiary Corporation. Neither the rights of creditors nor
any liens or security interests upon the property of either of the Constituent
Corporations shall be impaired by the Merger.
(e) The Subsidiary Corporation shall carry on business with the assets
of the Parent Corporation and the Subsidiary Corporation. The established
offices and facilities of the Parent Corporation immediately prior to the Merger
shall become the established offices and facilities of the Subsidiary
Corporation.
(f) The presently issued and outstanding share of Subsidiary
Corporation Common Stock held by the Parent Corporation shall be cancelled.
(g) All corporate acts, plans, employee benefits, policies,
resolutions, approvals and authorizations of the shareholders, board of
directors, committees elected or appointed by the Board of Directors, officers
and agents of the Parent Corporation, which were valid and effective immediately
prior to the Merger shall be taken for all purposes as the acts, plans,
policies, resolutions, approvals and authorizations of the Surviving Corporation
and shall be as effective and binding thereon as the same were with respect to
the Parent Corporation. The employees of the Parent Corporation shall become the
employees of the Surviving Corporation and continue to be entitled to the same
rights and benefits which they enjoyed as employees of the Parent Corporation.
1.5 CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. The
Certificate of Incorporation of the Subsidiary Corporation as in effect
immediately prior to the Effective Time shall continue in full force and effect
as the Certificate of Incorporation of the Surviving Corporation until duly
amended in accordance with the provisions thereof and applicable law.
1.6 BY-LAWS OF SURVIVING CORPORATION. The By-Laws of the Subsidiary
Corporation as in effect immediately prior to the Effective Time shall continue
in full force and effect as the By-Laws of the Surviving Corporation until
altered, amended or repealed as provided in the By-Laws or as provided by
applicable law.
1.7 DIRECTORS OF THE SURVIVING CORPORATION. The directors of the
Subsidiary Corporation subsequent to the Merger shall be the current member of
the Subsidiary Corporation's Board of Directors, until the earlier of his death,
resignation or removal or until his respective successors are duly appointed and
qualified.
ARTICLE II. CONDITIONS TO MERGER
The obligations of the Constituent Corporations to consummate the
Merger are subject to satisfaction of the following conditions:
2.1 CONSENTS, APPROVALS. The Parties shall have obtained all necessary
consents and approvals of their respective boards of directors, their
stockholders (including any applicable classes thereof) and all consents,
approvals and authorizations required under their respective charter documents,
and all material consents, including any material consents and waivers by the
Parties' respective lenders and other third-parties, if necessary, to the
consummation of the transactions contemplated by this Agreement.
2.2 ABSENCE OF CERTAIN LITIGATION. No action or proceeding shall be
threatened or pending before any governmental entity or authority which, in the
reasonable opinion of counsel for the Parties, is likely to result in a
restraint, prohibition or the obtaining of damages or other relief in connection
with this Agreement or the consummation of the Merger.
ARTICLE III. GENERAL PROVISIONS
3.1 BINDING AGREEMENT. This Merger Agreement shall be binding upon and
shall inure to the benefit
of the parties and their respective successors and assigns; provided, however,
that this Merger Agreement may not be assigned by any party without the written
consent of the other party.
3.2 AMENDMENTS. The Board of Directors of the Parent Corporation and
the Subsidiary Corporation may amend this Merger Agreement at any time prior to
the filing of this Merger Agreement (or a certificate in lieu thereof) with the
Secretary of State of Delaware, provided that an amendment made subsequent to
the adoption of this Merger Agreement by the shareholders of either the Parent
Corporation or the Subsidiary Corporation shall not: (i) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of the Parent Corporation or the Subsidiary Corporation,
(ii) alter or change any term of the Certificate of Incorporation of the
Surviving Corporation to be effected by the Merger, or (iii) alter or change any
of the terms and conditions of this Merger Agreement if such alteration or
change would adversely affect the holders of any class or series of capital
stock of either the Parent Corporation or the Subsidiary Corporation.
3.3 FURTHER ASSURANCES. From time to time, as and when required by the
Subsidiary Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of the Parent Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by the Parent
Corporation such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or confirm of record or otherwise by the
Subsidiary Corporation the title to and possession of all the property, rights,
privileges, powers, franchises, assets, immunities and authority of the Parent
Corporation and otherwise to carry out the purposes of this Merger Agreement.
The Officers and Directors of the Subsidiary Corporation are fully authorized in
the name and on behalf of the Parent Corporation or otherwise to take any and
all such action and to execute and deliver any and all such deeds or other
instruments.
3.4 ABANDONMENT. At any time before the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either the Parent Corporation or the
Subsidiary Corporation, or by both, by the adoption of appropriate resolutions
and written notification thereof to the other party to the Merger,
notwithstanding the approval of this Merger Agreement by the shareholders of the
Parent Corporation or the Subsidiary Corporation, or by both. In the event of
the termination of this Merger Agreement and the abandonment of the Merger
pursuant to the provisions of this section, this Merger Agreement shall become
void and have no effect, without any liability on the part of either of the
Constituent Corporations or their respective officers, directors or shareholders
in respect thereof.
3.5 GOVERNING LAW. This Merger Agreement shall be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the BCL.
IN WITNESS WHEREOF, each of the undersigned corporations has caused
this Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the date first written above.
GLOBUS GROWTH GROUP, INC.
By:_________________________________
Name: Steve Globus
Title: Chief Executive Officer
CHINA BIOPHARMACEUTICALS HOLDINGS, INC.
By:_________________________________
Name: Steve Globus
Title: Chief Executive Officer
CERTIFICATE OF INCORPORATION
OF
CHINA BIOPHARMACEUTICALS HOLDINGS, INC.
* * * *
FIRST: The name of the corporation is China Biopharmaceuticals
Holdings, Inc. (the "Corporation").
SECOND: The address of its registered office in the State of Delaware
is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of its registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose or purposes of the Corporation shall be to engage
in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The aggregate number of shares which the Corporation is
authorized to issue is two hundred and ten million
(210,000,000), divided into classes as follows:
A. Two hundred million (200,000,000) shares of common
stock, $.01 par value per share (hereinafter called
the "Common Stock"), divided into two classes as
follows;
B. Ten million (10,000,000) shares of preferred stock,
$.01 par value per share, to be issued in series (the
"Preferred Stock").
The following is a statement of the
designations, powers, preferences and rights, and the
qualifications, limitations or restrictions with
respect to the Preferred Stock of the Corporation:
The shares of Preferred Stock may be issued in one or
more series, and each series shall be so designated
as to distinguish the shares thereof from the shares
of all other series. Authority is hereby expressly
granted to the Board of Directors of the Corporation
to fix, subject to the provisions herein set forth,
before the issuance of any shares of a particular
series, the number, designations and relative rights,
preferences, and limitations of the shares of such
series including (1) voting rights, if any, which may
include the right to vote together as a single class
with the Common Stock and any other series of the
Preferred Stock with the number of votes per share
accorded to shares of such series being the same as
or different from that accorded to such other shares,
(2) the dividend rate per annum, if any, and the
terms and conditions pertaining to dividends and
whether such dividends shall be cumulative, (3) the
amount or amounts payable upon such voluntary or
involuntary liquidation, (4) the redemption price or
prices, if any, and the terms and conditions of the
redemption, (5) sinking fund provisions, if any, for
the redemption or purchase of such shares, (6) the
terms and conditions on which such shares are
convertible, in the event the shares are to have
conversion rights, and (7) any other rights,
preferences and limitations pertaining to such series
which may be fixed by the Board of Directors pursuant
to the Delaware General Corporation Law.
FIFTH: In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to
make, alter or repeal the by-laws of the Corporation.
SIXTH: A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director except for
liability (i) for any breach of the director's duty of loyalty
to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section
174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived any improper
personal benefit.
SEVENTH: The name and address of the sole incorporator is: Henry
Nisser, c/o Gersten, Savage, Kaplowitz, Wolf & Marcus, LLP,
101 East 52nd Street, New York, New York 10022.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the General
Corporation Law of the State of Delaware, do make this certificate, hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hands this 8th day of
June, 2004.
/s/ Henry Nisser
Henry Nisser, Sole Incorporator
Gersten, Savage, Kaplowitz, Wolf & Marcus, LLP
101 East 52nd Street
New York, New York 10022
BYLAWS OF
CHINA BIOPHARMACEUTICALS HOLDINGS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
ARTICLE I
OFFICES AND RECORDS
Section 1.1. DELAWARE OFFICE. The principal office of China
Biopharmaceuticals Holdings, Inc. (the "Corporation") in the State of Delaware
shall be located in the City of Wilmington, County of New Castle, and the name
and address of its registered agent is The Corporation Trust Company, 1209
Orange Street, Wilmington, Delaware.
Section 1.2. OTHER OFFICES. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
Section 1.3. BOOKS AND RECORDS. The books and records of the
Corporation may be kept at the Corporation's headquarters or at such other
locations outside the State of Delaware as may from time to time be designated
by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1. ANNUAL MEETINGS. An annual meeting of stockholders shall
be held for the election of directors at such date, time and place, either
within or without the State of Delaware, as may be designated by resolution of
the Board of Directors from time to time. Any other proper business may be
transacted at the annual meeting.
Section 2.2. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board or a
majority of the members of the Board of Directors.
Section 2.3. NOTICE OF MEETINGS. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given that shall state the place, date and hour of the meeting and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the written notice of any meeting shall be given not less than ten
or more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the records of the
Corporation.
Section 2.4. ADJOURNMENTS. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof is announced at the meeting at which the adjournment is taken.
At the adjourned meeting the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.5. QUORUM. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and
sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided in Section 2.4 of these Bylaws until a quorum shall attend.
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, held by it in a fiduciary capacity.
Section 2.6. ORGANIZATION. Meetings of stockholders shall be presided
over by the Chairman of the Board, or in his or her absence by the President, or
in the absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.7. VOTING.
(a) Except as otherwise provided by law, the Certificate of
Incorporation, or these Bylaws, any corporate action, other than the election of
Directors, the affirmative vote of the majority of shares entitled to vote on
that matter and represented either in person or by proxy at a meeting of
stockholders at which a quorum is present shall be the act of the stockholders
of the Corporation.
(b) Unless otherwise provided for in the Certificate of
Incorporation of the Corporation, Directors will be elected by a majority of the
votes cast by the shares, present in person or by proxy, entitled to vote in the
election at a meeting at which a quorum is present and each stockholder entitled
to vote has the right to vote the number of shares owned by him or her for as
many persons as there are Directors to be elected. The Board of Directors may at
any time amend this provision to reduce the number of votes cast for the
election of a director to a plurality of the votes cast in the manner provided
immediately above.
(c) Except as otherwise provided by statute, the Certificate
of Incorporation, or these Bylaws, at each meeting of stockholders, each
stockholder of the Corporation entitled to vote thereat, shall be entitled to
one vote for each share registered in his or her name on the books of the
Corporation.
Section 2.8 PROXIES. Each stockholder entitled to vote or to express
consent or dissent without a meeting, may do so either in person or by proxy, so
long as such proxy is executed in writing by the stockholder himself or herself,
or by his or her attorney-in-fact thereunto duly authorized in writing. Every
proxy shall be revocable at will unless the proxy conspicuously states that it
is irrevocable and the proxy is coupled with an interest. A telegram, telex,
cablegram, or similar transmission by the stockholder, or as a photographic,
photostatic, facsimile, shall be treated as a valid proxy, and treated as a
substitution of the original proxy, so long as such transmission is a complete
reproduction executed by the stockholder. No proxy shall be valid after the
expiration of three years from the date of its execution, unless otherwise
provided in the proxy. Such instrument shall be exhibited to the Secretary at
the meeting and shall be filed with the records of the Corporation.
Section 2.9 ACTION WITHOUT A MEETING. Unless otherwise provided for in
the Certificate of Incorporation of the Corporation, any action to be taken at
any annual or special stockholders' meeting, may be taken without a meeting,
without prior notice and without a vote if a written consent or consents is/are
signed by the stockholders of the Corporation having not less than the minimum
number of votes necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereat were present and voted is delivered by hand
or by certified or registered mail, return receipt requested, to the Corporation
to its principal place of business or an officer or agent of the Corporation
having custody of the books in which proceedings of stockholders' meetings are
recorded.
Section 2.10. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (i) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting and (ii) in the case of any
other action, shall not be more than sixty days prior to such other action. If
no record date
is fixed: (i) the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held and (ii) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 2.11. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary
shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. The stock ledger
shall be the only evidence as to which stockholders are entitled to examine the
stock ledger, the list of stockholders or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.
Section 2.12. CONDUCT OF MEETINGS. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board of Directors or the chairman of
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 2.13. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution may appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act, or if all inspectors or alternates who have been appointed are
unable to act, at a meeting of stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall have the duties prescribed by the
General Corporation Law of the State of Delaware. The chairman of the meeting
shall fix and announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a
meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, by the
Certificate of Incorporation or by these Bylaws required to be exercised or done
by the stockholders.
Section 3.2. NUMBER; QUALIFICATIONS. The Board of Directors need not be
composed of a particular number of members nor must such number be within any
particular range, unless the Certificate of Incorporation, an amendment to these
Bylaws or the Board of Directors shall otherwise provide. The number of
Directors shall until such time, if ever, be determined from time to time by
resolution of the Board of Directors. Directors need not be stockholders or
residents of the State of Delaware.
Section 3.3. ELECTION, RESIGNATION. The first Board of Directors shall
hold office until the first annual meeting of stockholders and until their
successors have been duly elected and qualified or until there is a decrease in
the number of Directors. Thereafter, each Director will be elected at the annual
meeting of stockholders and shall hold office until the annual meeting of the
stockholders next succeeding his or her election, or until his or her prior
death, resignation or removal. Any Director may resign at any time upon written
notice to the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall be effective upon receipt unless the notice
specifies a later time for that resignation to become effective.
Section 3.4. VACANCIES. Any newly created directorship resulting from
an increase in the authorized number of Directors or any vacancy occurring in
the Board of Directors by reason of death, resignation, retirement,
disqualification, removal from office or any other cause may be filled by the
affirmative vote of the remaining members of the Board of Directors, though less
than a quorum of the Board of Directors, and each Director so elected shall hold
office until the expiration of the term of office of the Director whom he or she
has replaced or until his or her successor is elected and qualified. If there
are no Directors in office, then an election of Directors may be held in the
manner provided by statute. No decrease in the number of Directors constituting
the whole Board shall shorten the term of any incumbent Director.
Section 3.5. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined notices thereof need not be given.
Section 3.6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the Chairman of the Board, the President, the
Secretary, or by any two members of the Board of Directors. Notice of the date,
time and place of a special meeting of the Board of Directors shall be delivered
by the person or persons calling the meeting personally, by facsimile or by
telephone to each Director or sent by first-class mail or telegram, charges
prepaid, addressed to each Director at that Directors' address as it is shown on
the records of the Corporation. If the notice is mailed, it shall be deposited
in the United States mail at least four days before the time of the holding of
the meeting. If the notice is delivered personally or by telephone or telegraph,
it shall be delivered at least forty-eight hours before the time of the holding
of the special meeting. If by facsimile transmission, such notice shall be
transmitted at least twenty-four hours before the time of holding of the special
meeting. Any oral notice given personally or by telephone may be communicated
either to the Director or to a person at the office of the Director who the
person giving the notice has reason to believe will promptly communicate it to
the Director. The notice need not specify the purpose or purposes of the special
meeting or the place of the special meeting, if the meeting is to be held at the
principal office of the Corporation.
Section 3.7. TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting thereof by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Bylaw shall constitute presence in person at such meeting.
Section 3.8. QUORUM; VOTE REQUIRED FOR ACTION; ADJOURNMENT. At all
meetings of the Board of Directors a majority of the whole Board of Directors
shall constitute a quorum for the transaction of business. Except in cases in
which the Certificate of Incorporation or these Bylaws otherwise provide, the
vote of a majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. A majority of the Directors
present, whether or not a quorum, may adjourn any meeting to another time and
place. Notice of the time and place of holding an adjourned meeting need not be
given unless the meeting is adjourned for more than twenty-four hours. If the
meeting is adjourned for more than twenty-four hours, then notice of the time
and place of the adjourned meeting shall be given to the Directors who were not
present at the time of the
adjournment in the manner specified in Section 3.6.
Section 3.9. ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, or in his or her absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 3.10. INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or such committee.
Section 3.11. FEES AND COMPENSATION OF DIRECTORS. Directors and members
of committees may receive such compensation, if any, for their services and such
reimbursement of expenses as may be fixed or determined by resolution of the
Board of Directors. This Section 3.11 shall not be construed to preclude any
Director from serving the Corporation in any other capacity as an officer,
agent, employee or otherwise and receiving compensation for those services.
Section 3.12 REMOVAL. One or more or all the Directors of the
Corporation may be removed for cause at any time by the stockholders, at a
special meeting of the stockholders called for that purpose, provided however,
such Director shall not be removed if the Certificate of Incorporation or Bylaws
provides that its Directors shall be elected by cumulative voting and there are
a sufficient number of shares cast against his or her removal, which if
cumulatively voted at an election of Directors would be sufficient to elect him
or her.
ARTICLE IV
COMMITTEES
Section 4.1. COMMITTEES. The Board of Directors may designate from
among its members one or more standing or special committees, each committee to
consist of one or more of the Directors of the Corporation. The Board of
Directors may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of the committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
permitted by law and to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it.
Section 4.2. COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article III of these Bylaws.
Section 4.3. MINUTES OF MEETINGS. All committees appointed in
accordance with Section 4.1 shall keep regular minutes of their meetings and
shall cause them to be recorded in books kept for that purpose in the office of
the Corporation.
ARTICLE V
OFFICERS
Section 5.1. DESIGNATIONS. The officers of the Corporation shall be a
Chairman of the Board, a President, a Secretary, Chief Financial Officer and, at
the discretion of the Board of Directors, one or more Directors and one or more
Vice-Presidents (one or more of whom may be Executive Vice-Presidents). The
Board of Directors shall appoint all officers. Any two or more offices may be
held by the same individual.
Section 5.2. APPOINTMENT AND TERM OF OFFICE. The officers of the
Corporation shall be appointed annually by the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of the
stockholders. Each officer shall hold office until a successor shall have been
appointed and qualified, or until such officer's earlier death, resignation or
removal.
Section 5.3. POWERS AND DUTIES. If the Board appoints persons to fill
the following positions, such officers shall have the power and duties set forth
below:
(a) THE CHAIRMAN: The Chairman shall have general control and
management of the Board of Directors and may also be the President of the
Corporation. He or she shall preside at all meetings of the Board of Directors
at which he or she is present. He or she shall have such other powers and
perform such other duties as from time to time may be conferred or imposed upon
him or her by the Board of Directors.
(b) THE PRESIDENT: The President of the Corporation shall be
generally responsible for the proper conduct and the day to day operations of
the business of the Corporation. He or she shall possess power to sign all
certificates, contracts and other instruments of the Corporation. In the absence
of the Chairman, he or she shall preside at all meetings of the stockholders. He
or she shall perform all such other duties as are incident to his or her office
or are properly required of him or her by the Board of Directors.
(c) CHIEF FINANCIAL OFFICER: The Chief Financial Officer shall
keep or cause to be kept adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings, and shares. The books of account shall at all reasonable
times be open to inspection by any Director. The Chief Financial Officer shall
(1) deposit corporate funds and other valuables in the Corporation's name and to
its credit with depositories designated by the Board of Directors; (2) make
disbursements of corporate funds as authorized by the Board of Directors; (3)
render a statement of the corporation's financial condition and an account of
all transactions conducted as chief financial officer whenever requested by the
President or the Board of Directors; and (4) have other powers and perform other
duties as prescribed by the President or the Board of Directors or the Bylaws.
Unless the board of directors has elected a separate Treasurer, the Chief
Financial Officer shall be deemed to be the treasurer for purposes of giving any
reports or executing any certificates or other documents.
(d) VICE PRESIDENT: Each Vice-President shall have such powers
and discharge such duties as may be assigned to him or her from time to time by
the President or the Board of Directors.
(e) SECRETARY AND ASSISTANT SECRETARIES: The Secretary shall
issue notices for all meetings, shall keep minutes of all meetings, shall have
charge of the seal and the corporate books, and shall make such reports and
perform such other duties as are incident to his or her office, or are properly
required of him or her by the Board of Directors. The Assistant Secretary, if
any, or Assistant Secretaries in order designated by the Board of Directors,
shall perform all of the duties of the Secretary during the absence or
disability of the Secretary, and at other times may perform such duties as are
directed by the President or the Board of Directors.
Section 5.4. DELEGATION. In the case of the absence or inability to act
of any officer of the Corporation and of any person herein authorized to act in
such officer's place, the Board of Directors may from time to time delegate the
powers or duties of such officer to any other officer or any Director or other
person whom it may in its sole discretion select.
Section 5.5. VACANCIES. Vacancies in any office arising from any cause
may be filled by the Board of Directors at any regular or special meeting of the
Board. The appointee shall hold office for the unexpired term and
until his or her successor is duly elected and qualified.
Section 5.6. OTHER OFFICERS. The Board of Directors, or a duly
appointed officer to whom such authority has been delegated by Board resolution,
may appoint such other officers and agents as it shall deem necessary or
expedient, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors.
Section 5.7. RESIGNATION. An officer may resign at any time by
delivering notice to the Corporation. Such notice shall be effective when
delivered unless the notice specifies a later effective date. Any such
resignation shall not affect the Corporation's contract rights, if any, with the
officer.
Section 5.8. REMOVAL. Any officer elected or appointed by the Board of
Directors may be removed at any time, with or without cause, by the affirmative
vote of a majority of the whole Board of Directors, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Section 5.9. BONDS. The Board of Directors may, by resolution, require
any and all of the officers to give bonds to the Corporation, with sufficient
surety or sureties, conditioned for the faithful performance of the duties of
their respective offices, and to comply with such other conditions as may from
time to time be required by the Board of Directors.
ARTICLE VI
STOCK
Section 6.1. ISSUANCE OF SHARES. No shares of the Corporation shall be
issued unless authorized by the Board of Directors or a duly constituted
committee thereof. Such authorization shall include the number of shares to be
issued, the consideration to be received and a statement regarding the adequacy
of the consideration.
Section 6.2. CERTIFICATES. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
of the Board of Directors, if any, or the President or a Vice President, and the
Secretary or an Assistant Secretary, of the Corporation certifying the number of
shares owned by him or her in the Corporation. Any of or all the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 6.3. LOST, STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF
NEW CERTIFICATES. The Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his or her legal representative, to give the
Corporation indemnification or a bond sufficient to indemnify it against any
claim that may be made against it on account of the alleged loss, theft or
destruction of any such certificate or the issuance of such new certificate.
Section 6.4. TRANSFERS OF STOCK.
(a) Transfers of stock shall be made only upon the stock
transfer records of the Corporation, which records shall be kept at the
registered office of the Corporation or at its principal place of business, or
at the office of its transfer agent or registrar. The Board of Directors may, by
resolution, open a share register in any state of the United States, and may
employ an agent or agents to keep such register and to record transfers of
shares therein.
(b) Shares of certificated stock shall be transferred by
delivery of the certificates therefor, accompanied either by an assignment in
writing on the back of the certificates or an assignment separate from the
certificate, or by a written power of attorney to sell, assign and transfer the
same, signed by the holder of said certificate. No shares of certificated stock
shall be transferred on the records of the Corporation until the outstanding
certificates therefor have been surrendered to the Corporation or to its
transfer agent or registrar.
Section 6.5. SHARES OF ANOTHER CORPORATION. Shares owned by the
Corporation in another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the Board of Directors may determine or, in the
absence of such determination, by the President of the Corporation.
ARTICLE VII
INDEMNIFICATION
Section 7.1. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Notwithstanding the preceding sentence, the Corporation shall be
required to indemnify a person in connection with a proceeding (or part thereof)
initiated by such person only if the proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
Section 7.2. PREPAYMENT OF EXPENSES. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition; provided, however, that the payment of
expenses incurred by a Director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
Director or officer to repay all amounts advanced if it should be ultimately
determined that the Director or officer is not entitled to be indemnified under
this Article VII or otherwise.
Section 7.3. CLAIMS. If a claim for indemnification or payment of
expenses under this Article VII is not paid in full within sixty days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 7.4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article VII shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or
Directors or otherwise.
Section 7.5. OTHER INDEMNIFICATION. The Corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
Section 7.6. AMENDMENT OR REPEAL. Any repeal or modification of the
foregoing provisions of this Article VII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors. Unless otherwise determined
by the Board of Directors, the fiscal year end shall be December, 31 of each
year.
Section 8.2. SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 8.3. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS
AND COMMITTEES. Any written waiver of notice, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the stockholders, Directors or members of a
committee of Directors need be specified in any written waiver of notice.
Section 8.4. INTERESTED DIRECTORS; QUORUM. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or her or their
votes are counted for such purpose, if: (i) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders. Common or interested Directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 8.5. BOOKS AND RECORDS. The Corporation shall maintain
appropriate accounting records and shall keep as permanent records minutes of
all meetings of its stockholders and Board of Directors, a record of all actions
taken by the Board of Directors without a meeting and a record of all actions
taken by a committee of the Board of Directors. In addition, the Corporation
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its stockholders, giving
the names and addresses of all stockholders in alphabetical order by class of
shares showing the number and class of the shares held by each. Any books,
records and minutes may be in written form or any other form capable of being
converted into written form within a reasonable time.
Section 8.6. AMENDMENT OF BYLAWS. In furtherance and not in limitation
of the powers conferred upon it by law, the Board of Directors is expressly
authorized to adopt, repeal or amend the Bylaws of the Corporation by the vote
of a majority of the entire Board of Directors. The Bylaws of the Corporation
shall be subject to alteration or repeal, and new Bylaws may be made, by a
majority vote of the stockholders at the time entitled to vote in the election
of Directors even though these Bylaws may also be altered, amended or repealed
by the Board of Directors.