UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14C
(RULE
14c−101)
SCHEDULE
14C INFORMATION
INFORMATION
STATEMENT PURSUANT TO SECTION 14(c) OF THE SECURITIES
EXCHANGE
ACT OF 1934
Check the
appropriate box:
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Preliminary
Information Statement
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Confidential,
for Use of the Commission Only (as permitted by Rule
14c−5(d)(2))
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Definitive
Information Statement
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HEPALIFE
TECHNOLOGIES, INC.
(Name
of Registrant As Specified in Charter)
Payment
of Filing Fee (Check the appropriate box):
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14c−5(g) and
0−11.
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(1) Title
of each class of securities to which transaction applies:
(2) Aggregate
number of securities to which 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:
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Fee
paid previously with preliminary materials.
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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.
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(1) Amount
Previously Paid:
(2) Form,
Schedule or Registration Statement No.:
(3) Filing
Party:
(4) Date
Filed:
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HepaLife
Technologies, Inc.
850 Third
Avenue,
Suite
1801,
New York,
NY 10022
Telephone:
646-218-1400
To our
Shareholders:
On May 7,
2010, holders of a majority of the voting shares of HepaLife Technologies, Inc.
(the “Company”), acted by written consent
in lieu of a special meeting of shareholders, among other things,
to:
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adopt
an amendment to the Company’s Articles of Incorporation in the form
attached hereto as Exhibit A (the “Articles of Amendment”)
to (i) increase the number of shares of Common Stock, $0.001 par value per
share (the “Common
Stock”) which the Company is authorized to issue from 300,000,000
shares to 500,000,000 shares; (ii) change the par value of the
Company's authorized Preferred Stock from $0.10 to $0.001 per share;
and (iii) provide for the classification of the Company’s Board of
Directors and to further provide for staggered terms of service for each
class of directors; and
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adopt
the Amended and Restated By-laws of the Company, as attached hereto as
Exhibit
B.
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The
enclosed Information Statement is being furnished to inform you that the
foregoing action has been approved by shareholders representing a majority of
the voting power of the Company’s outstanding shares of Common Stock. The Board
of Directors is not soliciting your proxy or consent in connection with the
adoption of the Articles of Amendment or the amended and restated bylaws.
Pursuant to the regulations of the Securities and Exchange Commission, this
Information Statement must be sent to shareholders at least 20 calendar days
prior to the earliest date on which the proposed corporate action may be
taken.
The
Information Statement is being mailed on or about May 17, 2010 to shareholders
of record as of May 7, 2010, the record date for determining the Company’s
shareholders eligible to consent in writing to the adoption of the Articles of
Amendment or the amended and restated bylaws and entitled to notice of this
corporate action. The actions taken by the consenting shareholders will not
become effective until at least 20 days after the initial mailing of this
Information Statement.
The
accompanying Information Statement is for informational purposes
only. However, we urge you to read the Information Statement in its
entirety for a more complete description of the transactions referenced above
and the actions taken by the Company’s Board of Directors and the holders of a
majority of the Company’s outstanding Common Stock at the time of the approval
of the transaction.
Sincerely,
/s/ Richard
Rosenblum
Richard
Rosenblum
President
IMPORTANT NOTICE
REGARDING THE AVAILABILITY OF INFORMATION STATEMENT MATERIALS IN CONNECTION WITH
THIS NOTICE OF SHAREHOLDER ACTION BY WRITTEN CONSENT: THE INFORMATION STATEMENT
IS AVAILABLE AT: www.hepalife.com.
850 Third
Avenue,
Suite
1801,
New York,
NY 10022
Telephone:
646-218-1400
Information
Statement
Dated
May 7, 2010
Filed
and Delivered Pursuant to Section 14(c) of the
Securities
Exchange Act of 1934 and Rule 14c-2 Thereof
We
Are Not Asking You for Your Proxy or Consent and You are Requested Not to Send
Us Your Proxy or Consent.
HepaLife
Technologies, Inc. (the “Company,” “we,” “us,” “our”) is sending you this
Information Statement to inform you of the written consent of certain of the
Company’s shareholders (the “Consenting Shareholders”)
representing a majority of the Company’s issued and outstanding shares of Common
Stock, par value $0.001 per share (the “Common Stock”), delivered to
us on May 7, 2010.
Pursuant
to the regulations of the Securities and Exchange Commission (the “Commission”), this Information
Statement must be sent to shareholders at least 20 calendar days prior to the
earliest date on which the proposed corporate action may be taken. The Board of
Directors is not soliciting your proxy or consent in connection with the
adoption of the Articles of Amendment and the adoption of the Amended and
Restated Bylaws and proxies and consents are not requested from
shareholders.
We are
distributing this Information Statement to shareholders of record as of
May 7, 2010 (the “Record
Date”) for determining the Company’s shareholders eligible to consent in
writing to the adoption of the Articles of Amendment and the adoption of the
Amended and Restated By Laws; and, accordingly, entitled to notice of these
corporate actions in satisfaction of any notice requirements we may have under
the Florida Business Corporation Act (the “FBCA”) and as required by the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules
and regulations promulgated thereunder. No dissenters’ rights under the FBCA
are afforded to you as a result of the adoption of the Articles of
Amendment and the adoption of the Amended and Restated Bylaws or
the changes effected thereby. We will pay the expenses incurred in
connection with the distribution of this Information Statement.
NO
ADDITIONAL ACTION IS REQUIRED BY OUR SHAREHOLDERS IN CONNECTION WITH AMENDING
THE ARTICLES OF INCORPORATION AND BY LAWS. HOWEVER, REGULATION 14C
PROMULGATED UNDER THE EXCHANGE ACT REQUIRES THE MAILING TO THE COMPANY’S
SHAREHOLDERS OF THE INFORMATION SET FORTH IN THIS INFORMATION STATEMENT AT LEAST
20 DAYS PRIOR TO THE EARLIEST DATE ON WHICH THE APPROVED CORPORATE ACTION
MAY BE TAKEN.
EFFECTIVE
DATE OF THE ACTIONS
The
Articles of Amendment will become effective upon the filing, with the Florida
Secretary of State, of articles of amendment (the “Articles of Amendment”) to the
Company’s Articles of Incorporation, as amended. Pursuant to Rule
14c-2 under the Exchange Act, the foregoing amendment to our Articles of
Incorporation, as amended and the adoption of the Amended and Restated By Laws
may not become effective until a date that is at least 20 days after the date on
which this Information Statement has been mailed to our shareholders
of record as of the Record Date, which mailing is expected to occur on or about
May 17, 2010.
DISSENTERS’
RIGHT OF APPRAISAL
Under the
applicable provisions of the FBCA, our Articles of Incorporation, and our
Bylaws, shareholders do not have any right to dissent with respect to the
actions taken, and no shareholder is entitled to appraisal of or payment for
their shares of Common Stock by virtue of such action.
NO
MEETING OF SHAREHOLDERS REQUIRED
We are
not soliciting any votes with regard to the Articles of Amendment or the
adoption of the Amended and Restated Bylaws. The Consenting
Shareholders that have consented to the Articles of Amendment and the adoption
of the Amended and Restated Bylaws own a majority of the total issued and
outstanding shares of voting capital stock and, accordingly, such Consenting
Shareholders own sufficient shares of Common Stock to approve the Articles of
Amendment and the Amended and Restated Bylaws.
OUTSTANDING
VOTING SECURITIES OF THE COMPANY
On May 7,
2010, the Record Date, the Company had 101,494,158 shares of
Common Stock issued and outstanding, and there were no shares of Preferred Stock
issued and outstanding. Each share of outstanding Common Stock is entitled to
one vote on matters submitted for shareholder approval.
On May 7,
2010, the holders of 53,381,779 shares (or approximately 53% of the
101,494,158 shares of
Common Stock then outstanding) executed and delivered to the Company a written
consent approving the Articles of Amendment and the filing of the Articles of
Amendment. As the actions were approved by the Consenting Shareholders, no
proxies are being solicited with this Information Statement.
THE
REASON FOR THE ARTICLES OF AMENDMENT
Our
Amended and Restated Articles of Incorporation currently provide for authorized
capital stock consisting of 300,000,000 shares of Common Stock, par value $0.001
per share. As of May 7, 2010, we had 101,494,158 shares of Common
Stock issued and outstanding. On May 4, 2010, our Board of Directors
unanimously approved, subject to shareholder approval, an amendment to our
Articles of Incorporation to increase the number of authorized shares of Common
Stock from 300,000,000 to 500,000,000. The Board of Directors set May 7,
2010 as the “Record Date” for determining which shareholders were entitled to
consent in writing to the Articles of Amendment.
Our Board
of Directors believes that an increase in our Common Stock is advisable because
such increase will provide us with the flexibility to meet our business needs as
they arise, to take advantage of favorable opportunities and to respond to a
changing corporate environment.
The
increased reserve of shares available for issuance would give us the flexibility
of using Common Stock to raise capital and/or as consideration in acquiring
other businesses. The increased reserve of shares available for issuance
may be used to facilitate public or private financings. We have previously
stated in our recent annual and quarterly reports that if required operating
funds cannot be generated by operations, we may need to, among other things,
issue and sell shares of our Common Stock in either registered or unregistered
offerings, or securities convertible into Common Stock in private
transactions. While our Board of Directors is presently considering all
financing options, including but not limited to a registered public offering of
our Common Stock, at this time we have no agreements in place for such a
registered public offering or any other definitive plans or agreements in place
for any other financing. Moreover, such transactions might not be
available on terms favorable to us, or at all. We may sell Common
Stock at prices less than the public trading price of our Common Stock at the
time, or we may grant additional contractual rights to purchase our Common Stock
not available to other holders of Common Stock, such as warrants to purchase
shares of Common Stock.
In
addition, the increased reserve of shares available for issuance may be used for
our equity incentive plans for grants to the Company’s employees, consultants
and directors, and those of the our subsidiaries. Our Board of Directors
believes that it is important for our continued growth to incentivize our
officers and employees, and those of our subsidiaries, to enhance development of
our technologies, increase our revenues and profitability, and as a result, the
Company’s market value, through equity incentive awards. Such equity incentive
plans may also be used to attract and retain employees or in connection with
potential acquisitions if we grant options to the employees of the acquired
companies. Our Board of Directors believes that our ability to achieve our
growth strategy may be impaired without additional shares of authorized Common
Stock that could be used to provide such equity incentives.
The
flexibility of the Board of Directors to issue additional shares of Common Stock
could also enhance our ability to negotiate on behalf of our shareholders in a
takeover situation and have an anti-takeover effect. The authorized but
unissued shares of Common Stock could be used by our Board of Directors to
discourage, delay or make more difficult a change in the control. For
example, such shares could be privately placed with purchasers who might align
themselves with the Board of Directors in opposing a hostile takeover
bid. The issuance of additional shares could serve to dilute the stock
ownership of persons seeking to obtain control and thereby increase the cost of
acquiring a given percentage of our outstanding Common Stock. Shareholders
should therefore be aware that the approval of the Articles of Amendment by the
Consenting Shareholders could facilitate future efforts by our Board of
Directors to deter or prevent changes in control, including transactions in
which the shareholders might otherwise receive a premium for their shares over
then current market prices. The increase in our authorized Common Stock,
however, is not being proposed in response to any effort of which we are aware
to accumulate shares of our Common Stock or to otherwise obtain control of the
Company. The availability of additional shares of Common Stock is particularly
important in the event that our Board of Directors needs to undertake any of the
foregoing actions on an expedited basis and therefore needs to avoid the time
(and expense) of seeking shareholder approval in connection with the
contemplated action.
The
additional authorized but unissued shares of Common Stock resulting from the
Articles of Amendment may generally be issued from time to time for such proper
corporate purposes as may be determined by the Board of Directors, without
further action or authorization by the Company’s shareholders, except for some
limited circumstances where shareholder approval is required by law or the
listing standards of any stock exchange on which our Common Stock may be listed
at such time. Our Board of Directors does not intend to solicit further
shareholder approval prior to the issuance of any additional shares of Common
Stock, except as may be required by applicable law or rules.
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diluting
the voting power of the current holders of Common
Stock;
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diluting
the market price of the Common Stock, to the extent that the shares of
Common Stock are issued and sold at prices below current trading prices of
the Common Stock, or if the issuance consists of equity securities
convertible into Common Stock, to the extent that the securities provide
for the conversion into Common Stock at prices that could be below current
trading prices of the Common Stock;
and
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diluting
the earnings per share, if any, and book value per share of the
outstanding shares of Common Stock.
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We intend
to file the Articles of Amendment, in form and substance so as to comply with
the then applicable laws of the State of Florida, reflecting the Articles of
Amendment and increasing the Company’s authorized shares of Common Stock no
earlier than twenty (20)
days following the filing of this Information Statement with the
Commission. The Articles of Amendment will become effective upon filing
with the Florida Secretary of State.
DESCRIPTION
OF THE AMENDMENT REGARDING THE STAGGERED BOARD OF DIRECTORS
The
election of directors of HepaLife is currently governed by our
Bylaws, which provide that all directors are to be
elected annually for a term of one year, to hold office until the next annual
meeting of shareholders and until their successors are duly elected
and qualified. This amendment to our Articles of Incorporation and
bylaws provides for the division of the board of
directors into three classes to allow for staggered terms
of office, with one class of directors elected each year and each
director so elected serving for a term of two years. Section
607.0806 of the FBCA permits either the articles of incorporation or the bylaws
of a corporation to provide for the classification of directors for staggered
terms of office. Neither our Articles of Incorporation nor our
Bylaws, in their current form, contain any such provision.
The
proposed amendments provide for the creation of three classes of directors, as
nearly equal in size as possible. Upon their initial election, the Class I
directors will hold office until the 2010 annual meeting of
shareholders; Class II directors will hold office for a term
expiring in one year, at the 2011 annual meeting of shareholders; and Class III
directors will hold office for a term expiring in
two years, at the 2012 annual meeting of
shareholders. Commencing at the 2012 annual meeting of shareholders, the
shareholders will elect only one class of directors each year, beginning with
Class I directors, with each director so elected holding office for a two-year
term. The result of this process is that approximately one-third of the
board of directors will be up for election each year.
Although
the creation of a staggered board of directors is designed as a
protective measure for our shareholders, the creation of a staggered
board of directors may have the effect of preventing shareholders from realizing
an opportunity to sell their shares of capital stock at higher
than market prices by deterring unsolicited
takeover offers or other efforts to obtain control of
us.
In
addition, staggered board provisions will generally delay, deter or impede
changes in control of the board of directors or
the approval of certain shareholder proposals that might have the
effect of facilitating changes in control of the board of
directors, even if the holders of a majority of our
voting securities believe the changes or actions would be in our best
interest and the best interests of our shareholders. For
example, staggering terms of the members of the board of
directors would operate to increase the time
required for someone to obtain control of us without the
cooperation or approval of the incumbent board of directors, even if that person
holds or acquires a majority of the voting
power. Moreover, by possibly deterring future takeover offers,
the creation of a staggered board of directors might have the
incidental effect of inhibiting certain changes in
incumbent management, some or all of whom may be replaced in
the course of a change in control of our board of directors.
Our
Board of Directors has considered the
potential adverse impact of the proposed amendment
and concluded that such adverse effects are outweighed by the
benefits the amendment would afford us and our shareholders.
Filling
Board Vacancies and Removal Of Directors
The
Articles of Amendment (and the Amended and Restated Bylaws) also
provide that any vacancy on the Board of Directors,
whether by reason of removal, resignation,
death or otherwise shall be filled exclusively by a vote of no
less than a majority of the remaining directors. Any director
appointed by a majority of the remaining directors shall hold office for the
remainder of the full term of the class of directors in which the vacancy
occurred and until such director's successor is elected and
qualified.
Permitting
directors rather than shareholders to fill vacancies is consistent
with, and supportive of, the purposes of adopting a staggered board
since together the two provisions tend to moderate
the pace at which our Board of Directors could be changed and is a
further deterrent to the strategy of removing existing
directors and replacing them with persons chosen by a takeover
bidder. In addition, because the board of directors
fixes the number of directors, it would also prevent those seeking majority
representation on our board of directors
from attempting to obtain such
representation through expanding the size of the board of directors and
filling the new directorships with their nominees. Directors may not be removed
from office without the affirmative vote of sixty-six and two thirds percent (66
2/3%) of the voting power of all of the then outstanding shares of the capital
stock of the Corporation entitled to vote generally in the election
of directors.
This
amendment to our Articles of Incorporation shall become effective on or after
the 20th day following the date on which this information
statement is sent to our shareholders.
ADOPTION
OF THE AMENDED AND RESTATED BYLAWS
The
Consenting Shareholders also adopted and ratified the Amended and Restated By
Laws which incorporate the provisions of the Articles of Amendment as to the
classification of our Board of Directors and providing for staggered three year
terms.
The
Amended and Restated By Laws also provide for the Board of Directors to set the
compensation, if any, of the directors. The Consenting Shareholders
ratified all payments made to directors through May 7, 2010 and all resolutions
providing for the payment of fees to directors and severance compensation to
resigning directors in compensation for their services as
directors.
The
Amended and Restated Bylaws shall become effective on or after the 20th day
following the date on which this information statement is sent to our
shareholders.
MARKET
FOR COMPANY’S COMMON EQUITY, RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES
Market
Information
Our
Common Stock is traded on the Over the Counter Bulletin Board (the “OTCBB”) under the symbol
“HPLF.”
The
following table sets forth the high and low closing sale prices for our Common
Stock for each quarter during the past two fiscal years as reported by the
OTCBB:
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High
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Low
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Fiscal
Year Ended December 31, 2009
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First
Quarter 2009 (January 1 – March 31, 2009)
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$
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0.30
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$
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0.13
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Second
Quarter 2009 (April 1 – June 30, 2009)
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$
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0.35
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$
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0.16
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Third
Quarter 2009 (July 1 – September 30, 2009)
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$
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0.22
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$
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0.16
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Fourth
Quarter 2009 (October 1 – December 31, 2009)
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$
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0.30
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$
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0.15
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Fiscal
Year Ended December, 2008
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First
Quarter 2008 (January 1 – March 31, 2008)
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$
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0.47
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$
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0.31
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Second
Quarter 2008 (April 1 – June 30, 2008)
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$
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0.73
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$
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0.45
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Third
Quarter 2008 (July 1 – September 30, 2008)
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$
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0.48
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$
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0.18
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Fourth
Quarter 2008 (October 1 – December 31, 2008)
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$
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0.31
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$
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0.14
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On May 7,
2010, the closing price of our Common Stock on the OTCBB was $0.18 per share. As
of May 7, 2010, there were approximately 76 shareholders of record of our Common
Stock.
Dividend
Policy
We do not
have a history of paying dividends on our Common Stock, and there can be no
assurance that we will pay any dividends in the foreseeable future. The Company
intends to use any earnings, which may be generated, to finance the growth of
its businesses. Our Board of Directors has the right to authorize the issuance
of Preferred Stock, without further shareholder approval, the holders of which
may have preferences over the holders of the Common Stock as to payment of
dividends.
INFORMATION
ON CONSENTING SHAREHOLDERS
Pursuant
to the our Bylaws and the FBCA, a vote by the holders of at least a majority of
the voting shares is required to approve the Articles of Amendment and the
filing of the Articles of Amendment and the adoption of the Amended and Restated
By Laws. As of the Record Date, we had 101,494,158 voting shares issued and
outstanding and entitled to vote, which for voting purposes are entitled to one
vote per share. Accordingly, the affirmative vote of at least 50,747,080 shares
was required to approve the Articles of Amendment. A total of 53,381,779 shares
were voted in favor of the Articles of Amendment.
As of May
7, 2010, the Consenting Shareholders were the beneficial owners of a total of
53,381,779 shares of our Common Stock, which represented approximately 53% of
the total number of voting shares. The Consenting Shareholders voted in favor of
the Articles of Amendment and the filing of the Articles of Amendment
and
the adoption of the Amended and Restated Bylaws in a written
consent, dated May 5, 2010. No consideration was paid for the consent. The
Consenting Shareholders’ name, affiliation with us, beneficial holdings of
Common Stock as of May 7, 2010, and the number of shares of Common Stock voted
in favor of the Articles of Amendment and the
adoption of the Amended and Restated Bylaws on May 7, 2010 is as
follows:
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Title
of Class
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Name
and Address of Beneficial Owner
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Number
of Shares Beneficially Owned(1)
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Percentage
of Class (1)
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Number
of Shares Voted In Favor of the Articles of Amendment
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Percentage
of Class (1)
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Common
Stock
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1420525
Alberta Ltd (2)
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34,261,174
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34%
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34,261,174
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34%
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Common
Stock
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1420524
Alberta Ltd (3)
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4,400,000
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4.3%
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4,400,000
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4.3%
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Common
Stock
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1420468
Alberta Ltd. (4)
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4,400,000
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4.3%
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4,400,000
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4.3%
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Common
Stock
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1420527
Alberta Ltd. (5)
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3,000,000
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2.9%
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3,000,000
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2.9%
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Common
Stock
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1422688
Alberta Ltd. (6)
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1,250,000
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1.2%
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1,250,000
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1.2%
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Common
Stock
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Jasvir
S. Rayat
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3,200,000
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3.1%
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3,200,000
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3.1%
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Common
Stock
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Herdev
S. Rayat
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2,870,605
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2.8%
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2,870,605
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2.8%
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Total
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53,381,779
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52.6%
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52.6%
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(1) Beneficial
ownership is calculated based on 101,494,158 shares of Common Stock issued and
outstanding as of May 7, 2010. Beneficial ownership is determined in accordance
with Rule 13d-3 under the Exchange Act. The persons and entities named in the
table have sole voting and sole investment power with respect to the shares set
forth opposite that person’s name, subject to community property laws, where
applicable.
(3) 1420524
Alberta Ltd. is a private Alberta corporation, wholly owned by David Ernest
Jenkins, as the trustee under the KJR Family Trust dated August 28, 2008, for
the benefit of Kalen Jai Rayat. Mr. Harmel Rayat is not a beneficiary of the
trust.
(4) 1420468
Alberta Ltd., is a private Alberta corporation, wholly owned by Jasbinder
Chohan, as the trustee under the TJR Family Trust dated August 28, 2008, for the
benefit of Talia Jevan Rayat. Mr. Harmel Rayat is not a beneficiary of the
trust.
(5) 1420527
Alberta Ltd., is a private Alberta corporation, wholly owned by Amritpal Kaur
Tanda, as the trustee under the Heritage Family Trust dated August 28, 2008, for
the benefit of Mehar Singh Bhogal.
(6) 1422688
Alberta Ltd., is a private Alberta corporation, wholly owned by Gurmeet Singh
Sidhu, as the trustee under the DS Sidhu Family Trust dated August 28, 2008, for
the benefit of Dayan Singh Sidhu.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of May 7, 2010, the beneficial ownership
of our Common Stock by each director and executive officer of the Company
and each person known by us to beneficially own more than 5% of the Company's
Common Stock outstanding as of such date and the executive officers and
directors of our as a group.
The
percentages of our Common Stock beneficially owned are reported on the basis of
regulations of the Securities and Exchange Commission governing the
determination of beneficial ownership of securities. Under the rules of the
Securities and Exchange Commission, a person is deemed to be a beneficial owner
of a security if that person has or shares voting power, which includes the
power to vote or to direct the voting of the security, or investment power,
which includes the power to dispose of or to direct the disposition of the
security. Except as indicated in the footnotes to this table, each beneficial
owner named in the table below has sole voting and sole investment power with
respect to all shares beneficially owned.
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Number
of Shares of
Common Stock
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Percent
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Amit
S. Dang
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0
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0%
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60
State Street, Suite 700
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Boston,
MA 02109
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Javier
Jimenez (1)
|
10,000
(1)
|
<1%
|
|
60
State Street, Suite 700
|
|
|
|
Boston,
MA 02109
|
|
|
|
|
|
|
|
Jatinder
S. Bhogal (2)
|
2,010,000
|
2.0%
|
|
60
State Street, Suite 700
|
|
|
|
Boston,
MA 02109
|
|
|
|
|
|
|
|
Joseph
Sierchio(3)
|
110,000
|
<1%
|
|
60
State Street, Suite 700
|
|
|
|
Boston,
MA 02109
|
|
|
|
|
|
|
|
1420525
Alberta Ltd.(4)
|
34,261,174
|
34%
|
|
216-1628
West First Avenue
|
|
|
|
Vancouver,
B.C.
|
|
|
|
V6J
1G1 Canada
|
|
|
|
|
|
|
|
Directors
and Executive Officers
|
2,130,000
|
2.1%
|
|
as
a group (5 persons)
|
|
|
(1) Represents
shares issuable upon exercise of vested options.
(2) Represents
2,000,000 shares held by Ranjit Bhogal, Mr. Bhogal’s wife and 10,000 shares
issuable upon exercise of vested options.
(3) This
amount includes 10,000 shares issuable upon exercise of vested
options.
(4) This
amount includes 31,057,980 shares held by 1420525 Alberta Ltd., a private
Alberta company wholly-owned by Mr. Rayat, and 3,203,194 shares held
by Tajinder Chohan, Mr. Rayat’s wife. In his capacity as the sole
shareholder of 1420525 Alberta Ltd. and its President, Mr. Rayat may be
deemed to have beneficial ownership of the shares owned by 1420525 Alberta
Ltd.
DESCRIPTION
OF CAPITAL STOCK
We are
currently authorized to issue 300,000,000 shares of Common Stock, $0.001 par
value per share, and 1,000,000 shares of Preferred Stock, $0.10 par value per
share.
Common
Stock
The
holders of our Common Stock are entitled to one vote per share on all matters to
be voted on by the shareholders. Subject to preferences that may be applicable
to any shares of Preferred Stock that may be outstanding from time to time,
holders of Common Stock are entitled to receive ratably such dividends as may be
declared by the board of directors out of funds legally available therefore. In
the event we liquidate, dissolve or wind up, holders of Common Stock are
entitled to share ratably in all assets remaining after payment of liabilities
and the liquidation preferences of any outstanding shares of Preferred Stock.
Holders of Common Stock have no preemptive, conversion, or subscription rights.
There are no redemption or sinking fund provisions applicable to the Common
Stock.
Preferred
Stock
Under our
Articles of Incorporation, our board of directors has the authority, without
further action by our shareholders, to issue up to 1,000,000 shares of Preferred
Stock in one or more series and to fix the rights, preferences, privileges,
qualifications and restrictions granted to or imposed upon such Preferred Stock,
including dividend rights, conversion rights, voting rights, rights and terms of
redemption, liquidation preference and sinking fund terms, any or all of which
may be greater than the rights of the Common Stock. The issuance of Preferred
Stock could adversely affect the voting power of holders of Common Stock and
reduce the likelihood that such holders will receive dividend payments and
payments upon liquidation. Such issuance could have the effect of decreasing the
market price of the Common Stock. The issuance of Preferred Stock or even the
ability to issue Preferred Stock could also have the effect of delaying,
deterring or preventing a change in control. We have no present plans to issue
any shares of Preferred Stock.
Options
As of May
7, 2010 there were 250,000 options to purchase shares outstanding (of which
30,000 have vested) under our approved stock option plan and 37,548,000 shares
were available for future grants under our stock option plan. Holders of options
do not have any of the rights or privileges of our shareholders, including
voting rights, prior to exercise of the options. The number of shares of Common
Stock for which these options are exercisable and the exercise price of these
options are subject to proportional adjustment for stock splits and similar
changes affecting our Common Stock. We have reserved sufficient shares of
authorized Common Stock to cover the issuance of Common Stock subject to the
options.
Warrants
As of May
7, 2010 there were 825,000 outstanding share purchase warrants; each warrant
entitles the holder thereof to purchase one share of Common Stock at an
adjusted exercise price of $1.34 per share as of May 3, 2010. These warrants
expire on May 11, 2012.
Potential
Anti-Takeover Effect of Provisions of Florida Law and Our Bylaws
We are
subject to several anti-takeover provisions under Florida law that apply to
public corporations organized under Florida law, unless the corporation has
elected to opt out of those provisions in its articles of incorporation or
bylaws. We have not elected to opt out of those provisions. The FBCA prohibits
the voting of shares in a publicly-held Florida corporation that are acquired in
a “control share acquisition” unless the holders of a majority of the
corporation’s voting shares (exclusive of shares held by officers of the
corporation, inside directors, or the acquiring party) approve the granting of
voting rights as to the shares acquired in the control share acquisition. A
“control share acquisition” is defined in the FBCA as an acquisition that
immediately thereafter entitles the acquiring party to vote in the election of
directors within each of the following ranges of voting power: one-fifth or more
but less than one-third of such voting power, one-third or more but less than a
majority of such voting power, and more than a majority of such voting power.
However, an acquisition of a publicly held Florida corporation’s shares is not
deemed to be a control-share acquisition if it is either (i) approved by such
corporation’s board of directors, or (ii) made pursuant to a merger agreement to
which such a Florida corporation is a party.
The FBCA
also contains an “affiliated transaction” provision that prohibits a
publicly-held Florida corporation from engaging in a broad range of business
combinations or other extraordinary corporate transactions with any person who,
together with affiliates and associates, beneficially owns more than 10% of the
corporation’s outstanding voting shares, otherwise referred to as an “interested
shareholder,” unless:
|
|
•
|
the
transaction is approved by a majority of disinterested directors before
the person becomes an interested
shareholder,
|
|
|
|
the
interested shareholder has owned at least 80% of the corporation’s
outstanding voting shares for at least five years,
or
|
|
|
|
the
transaction is approved by the holders of two-thirds of the corporation’s
voting shares other than those owned by the interested
shareholder.
|
Our
Articles of Incorporation also permit our board of directors to issue up to
1,000,000 shares of Preferred Stock, with such rights, preferences, privileges,
and restrictions as are fixed by the board of directors. This gives our board of
directors the ability to issue shares of Preferred Stock which could include the
right to approve or not approve an acquisition or other transaction that could
result in a change in control.
INTEREST
OF CERTAIN PERSONS IN OR OPPOSITION TO MATTERS TO BE ACTED UPON
No
officer, director or director nominee has any substantial interest in the
matters to be acted upon, other than his role as an officer, director or
director nominee.
DELIVERY
OF DOCUMENTS TO SECURITY HOLDERS SHARING AN ADDRESS
Only one
Information Statement is being delivered to multiple shareholders sharing an
address unless we received contrary instructions from one or more of any such
shareholders. We shall deliver promptly, upon written or oral request, a
separate copy of the Information Statement to a shareholder at a shared address
to which a single copy of the document was delivered. A shareholder can
notify us that the shareholder wishes to receive a separate copy of the
Information Statement by sending a written request to us at:
HepaLife
Technologies, Inc.
850 Third
Avenue,
Suite
1801
New York,
NY 10022
Telephone:
646-218-1400
A
shareholder may utilize the same address and telephone number to request either
separate copies or a single copy for a single address for all future information
statements, proxy statements and annual reports.
PROPOSALS
BY SECURITY HOLDERS
No
security holder has requested us to include any additional proposals in this
Information Statement.
MISCELLANEOUS
MATTERS
The
entire cost of furnishing this Information Statement will be borne by us. We
will request brokerage houses, nominees, custodians, fiduciaries and other like
parties to forward this Information Statement to the beneficial owners of the
Common Stock held of record by them and will reimburse such persons for their
reasonable charges and expenses in connection therewith.
ADDITIONAL
INFORMATION
We are
subject to the informational requirements of the Exchange Act, and in accordance
therewith files reports, proxy statements and other information including annual
and quarterly reports on Form 10-K and 10-Q (the “1934 Act Filings”) with the
Commission. The 1934 Act Filings and other reports filed by the Company
can be inspected and copied at the public reference facilities maintained at the
Commission at Room 1024, 100 F Street, N.E., Washington, DC 20549. Copies of
such material can be obtained upon written request addressed to the Commission,
Public Reference Section, 100 F Street, N.E., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a web site on the Internet
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding issuers that file electronically with the Commission
through the Electronic Data Gathering, Analysis and Retrieval
System.
CONCLUSION
As a
matter of regulatory compliance, we are sending you this Information Statement
which describes the purpose and effect of the above actions. Your consent to the above action is
not required and is not being solicited in connection with this action.
This Information Statement is intended to provide the Company’s
shareholders information required by the rules and regulations of the Exchange
Act.
WE ARE
NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. THE
ATTACHED MATERIAL IS FOR INFORMATIONAL PURPOSES ONLY.
Exhibit
A
Articles
of Amendment
To The
Articles of Incorporation
Of
Hepalife
Technologies, Inc. Adopted
Pursuant
to Section 607.1003 of the
Florida
Business Corporation Act
------------------------------------------------
Pursuant
to the provisions of Section 607.1006 of the Florida Business Corporation Act,
Hepalife Technologies, Inc. (the “Corporation”), a corporation
organized and existing under and by virtue of the Florida Business Corporation
Act, does hereby certify that it has adopted the following Articles of Amendment
to its Articles of Incorporation:
FIRST: Amendment(s)
adopted:
“Article
IV. Board of Directors” is hereby amended to read in its entirety as
follows:
“The
affairs of the Corporation shall be managed by a Board of Directors determined
as follows:
A. NUMBER
OF DIRECTORS. Subject to the rights if any, of the holders of any series
of Preferred Stock to elect additional directors under
specified circumstances, the number of directors shall be
fixed from time to time exclusively by the Board
of Directors pursuant to resolution adopted by a
majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board").
B. ELECTION
AND TERMS OF DIRECTORS. Directors shall be elected by a majority of
the votes cast, and the directors of this Corporation shall be divided
into three classes (Class I, Class II and Class III), with respect to the time
that they severally hold office, as nearly equal in
number as possible, with the initial term of office of the Class I
directors to expire at the 2010 annual meeting of shareholders of the
Corporation and until their respective
successors are elected and qualified, the initial
term of office of the Class II directors to expire at the
2011 annual meeting of shareholders of the Corporation and
until their respective successors are elected and qualified and the
initial term of office of the Class III directors to expire at the 2012 annual
meeting of shareholders of the Corporation and until their
respective successors are elected and
qualified. Commencing with the 2010 annual meeting
of shareholders of the Corporation, directors
elected to succeed those directors whose terms have thereupon expire shall
be elected for a term of office to expire at the
third succeeding annual meeting of shareholders of the
Corporation after their election
and until their respective successors are elected and
qualified
C. NEWLY
CREATED DIRECTORSHIPS AND VACANCIES.
(2) Subject
to the rights of the holders of any series of
Preferred Stock, newly created
directorships resulting from any increase in the
authorized number of directors or any vacancies on the
Board of Directors resulting
from death, resignation, retirement, disqualification,
removal from office or other cause (other than a
vacancy resulting from removal by the shareholders, in which
case such vacancy shall
be filled by the shareholders) shall be filled
only by a majority vote of the directors then in office, though less
than a quorum, and a director so chosen shall hold office for
the unexpired portion of the term of the class in which such director was chosen
to serve and until his successor is elected and
qualified. No decrease in the number of authorized directors constituting
the entire Board of Directors shall shorten the term of any
incumbent director.
D. AMENDMENTS
TO THIS ARTICLE IV. The affirmative vote of the holders
of sixty-six and two thirds percent (66 2/3%) of the voting power of
all of the then outstanding shares of the capital stock of
the Corporation entitled to vote generally in the
election of directors (the "Voting Stock"),
voting together as a single class, shall be
required to amend or repeal, or
to adopt any provision inconsistent with
this Article.”
“Article
V. Capital Stock” is hereby amended to read in its entirety as
follows:
“The
Corporation shall have the authority to issue 500,000,000 shares of Common
Stock, par value $0.001 per share. The Corporation shall have the
authority to issue 1,000,000 shares of Preferred Stock, par value $0.001 per
share, which may be divided into series and with the preferences, limitations
and relative rights determined by the Board of Directors.
SECOND: The
date of each amendment’s adoption by the Corporation’s shareholders was May 7,
2010.
THIRD: The
Amendment to the Articles of Incorporation of
the Corporation effected by these Articles of Amendment was duly
authorized by the Board of Directors of the Corporation in
accordance with the provisions of Section 607.1003 of
the Florida Business Corporation Act (the “FBCA”), and by the affirmative
vote of the holders of a majority of the Corporation's outstanding
capital stock entitled to vote thereon by written consent in
accordance with the provisions of Section 607.1003 of the
FBCA.
IN WITNESS WHEREOF, the
Corporation has caused this Articles of Amendment to be signed and acknowledged
by its President on this _____ day of May, 2010.
Hepalife Technologies,
Inc.
By:
________________________________
Name: Richard
Rosenblum
Title: President
Exhibit
B
Amended
and Revised
Bylaws
of
HepaLife
Technologies, Inc.
(formerly
Zeta Corporation)
ARTICLE
I. DIRECTORS
Section 1. Power;
Number; Classification; Term of Office; Election Procedures. The following provisions are
inserted for the management of the business and for the conduct of the affairs
of the Corporation, and for further definition, limitation and regulation of the
powers of the Corporation and of its directors and shareholders:
Subject
to the Corporation’s Articles of Incorporation, as amended, the number,
classification, and terms of the Board of Directors of the Corporation and the
procedures to elect directors, to remove directors, and to fill vacancies in the
Board of Directors shall be as follows:
(a) Unless
otherwise provided in the Charter, the number of directors that shall constitute
the whole Board of Directors shall from time to time be fixed exclusively by the
Board of Directors by a resolution adopted by a majority of the whole Board of
Directors serving at the time of that vote. Except in the event of a vacancy
contemplated by Section 1(c)
of this Article I, in no
event shall the number of directors that constitute the whole Board of Directors
be fewer than three. No decrease in the number of directors shall have the
effect of shortening the term of any incumbent director. Directors of the
Corporation need not be elected by written ballot unless the Bylaws of the
Corporation otherwise provide. Unless otherwise provided in the Charter,
directors need not be shareholders of the Corporation or residents of the State
of Florida.
(b) The
Board of Directors of the Corporation shall be divided into three classes
designated Class I, Class II, and Class III, respectively, all as nearly equal
in number as possible, with each director then in office receiving the
classification that at least a majority of the Board of Directors designates.
The initial term of office of directors of Class I shall expire at the annual
meeting of shareholders of the Corporation in 2010, of Class II shall expire at
the annual meeting of shareholders of the Corporation in 2011, and of Class III
shall expire at the annual meeting of shareholders of the Corporation in 2012,
and in all cases as to each director until his successor is elected and
qualified or until his earlier death, resignation or removal. At each annual
meeting of shareholders beginning with the annual meeting of shareholders in
2010, each director elected to succeed a director whose term is then expiring
shall hold his office until the third annual meeting of shareholders after his
election and until his successor is elected and qualified or until his earlier
death, resignation or removal. If the number of directors that constitutes the
whole Board of Directors is changed as permitted by this Article I, the majority
of the whole Board of Directors that adopts the change shall also fix and
determine the number of directors comprising each class; provided, however, that
any increase or decrease in the number of directors shall be apportioned among
the classes as equally as possible.
(c) Vacancies
in the Board of Directors resulting from death, resignation, retirement,
disqualification or removal from office may be filled by no less than a majority
vote of the remaining directors (or, if only one director remains, the vote of
such director) then in office, though less than a quorum. Each director so
chosen shall represent the same class or classes of shareholders that such
vacant directorship had represented, and each director so chosen shall also
receive the classification of such vacant directorship to which he has been
appointed.
(d) A
directorship to be filled by reason of an increase in the number of directors
may be filled by (i) the affirmative vote of the holders of a majority of
the outstanding shares entitled to vote thereon at an annual or special meeting
of shareholders called for that purpose or (ii) the Board of Directors for
a term of office continuing only until the next election of one or more
directors by the shareholders; provided, that the Board of Directors may not
fill more than two such directorships during the period between any two
successive annual meetings of shareholders. Any newly created directorship shall
receive the classification that at least a majority of the Board of Directors
designates.
(e) A
director of any class of directors of the Corporation may be removed before the
expiration date of that director’s term of office, by an affirmative vote of the
holders of not less than a majority of the votes of the outstanding shares of
the class or classes or series of stock then entitled to be voted at an election
of directors of that class or series, voting together as a single class, cast at
the annual meeting of shareholders or at any special meeting of shareholders
called by a majority of the whole Board of Directors for this
purpose.
Section 2. Quorum; Required Vote for Director
Action. Unless otherwise
required by law or provided in the Charter or these Bylaws, a majority of the
total number of directors shall constitute a quorum for the transaction of
business of the Board of Directors, and 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.
Section 3. Meetings; Order of
Business.
Meetings of the Board of Directors may be held at such place or places as shall
be determined from time to time by resolution of the Board of Directors. At all
meetings of the Board of Directors business shall be transacted in such order as
shall from time to time be determined by the Chairman of the Board (if any), or
in his absence by the Chief Executive Officer (if he is a director), or in the
absence of the Chairman of the Board and the Chief Executive Officer, by the
President (if the President is director), or by resolution of the Board of
Directors.
Attendance
of a director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened
Section 4. First
Meeting. In
connection with any annual meeting of shareholders at which directors were
elected, the Board of Directors may, if a quorum is present, hold its first
meeting for the transaction of business immediately after and at the same place
as such annual meeting of the shareholders. Notice of such meeting at such time
and place shall not be required.
Section 5. Regular Meetings. Regular
meetings of the Board of Directors shall be held at such times and places as
shall be designated from time to time by resolution of the Board of Directors.
Notice of such regular meetings shall not be required.
Section 6. Special
Meetings. Special
meetings of the Board of Directors may be called by the Chairman of the Board
(if any), the Chief Executive Officer, the President or, on the written request
of any one director, by the Secretary, in each case on at least 24 hours
personal, written, facsimile or electronic notice to each director. Such notice,
or any waiver thereof pursuant to need not state the purpose or purposes of such
meeting, except as may otherwise be required by law or provided for by the
Charter or these Bylaws. Notice of a meeting of the Board of Directors need not
be given to a director who signs a waiver of notice either before or after the
meeting. Attendance of a director at a meeting constitutes a waiver of notice of
that meeting and waiver of all objections to the place of the meeting, the time
of the meeting, and the manner in which it has been called or convened, unless a
director objects to the transaction of business (promptly upon arrival at the
meeting) because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors must be specified in the notice or waiver of notice of
the meeting.
A
majority of the directors present, whether or not a quorum exists, may adjourn
any meeting of the Board of Directors to another time and place. Notice of an
adjourned meeting shall be given to the directors who were not present at the
time of the adjournment and, unless the time and place of the adjourned meeting
are announced at the time of the adjournment to the other directors.
Meetings of the Board of Directors may be called by the president or the
Chairman of the Board of Directors. Members of the Board of Directors and any
committee of the Board may participate in a meeting by telephone conference or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation by these means constitutes
presence in person at a meeting
Section 7. Compensation. Unless restricted
by the Charter, the Board of Directors shall have the authority to fix the
compensation, if any, of directors.
Section 8. Presumption of Assent. A
director who is present at a meeting of the Board of Directors at which action
on any corporate matter is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
Section 9. Approval
or Ratification of Acts or Contracts by Shareholders. The Board of Directors in
its discretion may submit any act or contract for approval or ratification at
any annual meeting of the shareholders, or at any special meeting of the
shareholders called for the purpose of considering any such act or contract, and
any act or contract that shall be approved or be ratified by the vote of the
shareholders holding a majority of the issued and outstanding shares of stock of
the Corporation entitled to vote and present in person or by proxy at such
meeting (provided that a quorum is present), shall be as valid and as binding
upon the Corporation and upon all the shareholders as if it shall have been
approved or ratified by every shareholder of the Corporation.
Section 10. Place of Meeting. Regular and
special meetings of the Board of Directors shall be held at the principal place
of business of the Corporation or at another place designated by the person or
persons giving notice or otherwise calling the meeting.
Section 11. Action By Written Consent. Any
action required or permitted to be taken at a meeting of directors may be taken
without a meeting if a consent in writing setting forth the action to be taken
and signed by all of the directors is filed in the minutes of the proceedings of
the Board. The action taken shall be deemed effective when the last director
signs the consent, unless the consent specifies otherwise.
ARTICLE
II. MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual
meeting of the shareholders of the Corporation for the election of officers and
for such other business as may properly come before the meeting shall be held at
such time and place as designated by the Board of Directors.
Section 2. Special Meeting. Special
meetings of the shareholders shall be held when directed by the President and
Chief Executive Officer or when requested in writing by shareholders holding at
least 10% of the Corporation’s stock having the right and entitled to vote at
such meeting. A meeting requested by shareholders shall be called by the
President and Chief Executive Officer for a date not less than 10 nor more than
60 days after the request is made. Only business within the purposes described
in the meeting notice may be conducted at a special shareholders’
meeting.
Section 3. Place. Meetings of the
shareholders will be held at the principal place of business of the Corporation
or at such other place as is designated by the Board of Directors.
Section 4. Notice. A written notice of
each meeting of shareholders shall be mailed to each shareholder having the
right and entitled to vote at the meeting at the address as it appears on the
records of the Corporation. The meeting notice shall be mailed not less than 10
nor more than 60 days before the date set for the meeting. The record date for
determining shareholders entitled to vote at the meeting will be the close of
business on the day before the notice is sent. The notice shall state the time
and place the meeting is to be held. A notice of a special meeting shall also
state the purposes of the meeting. A notice of meeting shall be sufficient for
that meeting and any adjournment of it. If a shareholder transfers any shares
after the notice is sent, it shall not be necessary to notify the transferee.
All shareholders may waive notice of a meeting at any time.
Section 5. Shareholder Quorum. A minimum
of 15% of the shares entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. Any number of shareholders,
even if less than a quorum, may adjourn the meeting without further notice until
a quorum is obtained.
Section 7. Proxies. A shareholder entitled
to vote at any meeting of shareholders or any adjournment thereof may vote in
person or by proxy executed in writing and signed by the shareholder or his
attorney-in-fact. The appointment of proxy will be effective when received by
the Corporation’s officer or agent authorized to tabulate votes. No proxy shall
be valid more than 11 months after the date of its execution unless a longer
term is expressly stated in the proxy.
Section 8. Validation. If shareholders who
hold a majority of the voting stock entitled to vote at a meeting are present at
the meeting, and sign a written consent to the meeting on the record, the acts
of the meeting shall be valid, even if the meeting was not legally called and
noticed.
Section 9. Conduct of Business By Written
Consent. Any action of the shareholders may be taken without a
meeting if written consents, setting forth the action taken, are signed by at
least a majority of shares entitled to vote and are delivered to the officer or
agent of the Corporation having custody of the Corporation’s records within 60
days after the date that the earliest written consent was delivered. Within 10
days after obtaining an authorization of an action by written consent, notice
shall be given to those shareholders who have not consented in writing or who
are not entitled to vote on the action. The notice shall fairly summarize the
material features of the authorized action. If the action creates dissenters’
rights, the notice shall contain a clear statement of the right of dissenting
shareholders to be paid the fair value of their shares upon compliance with and
as provided for by the state law governing corporations.
ARTICLE
III. OFFICERS
Section 1. Elected Officers. The elected
officers of the Corporation shall be, at the discretion of the Board of
Directors, a Chairman,
Chief Executive Officer, a President, a Secretary, a Treasurer and such other
officers (including, without limitation, one or more Vice Presidents, a Chief
Operating Officer and a Chief Financial Officer) as the Board of Directors from
time to time may deem proper. All officers elected by the Board of Directors
shall each have such powers and duties as generally pertain to their respective
offices, subject to the specific provisions of this Article III. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board of Directors or by any committee thereof. The Board of
Directors, or any committee thereof, may from time to time elect, or the Chief
Executive Officer may appoint, such other officers (including a Chief Medical
Officer, a Chief Technology Officer, and one or more Assistant Vice Presidents,
Assistant Secretaries, Assistant Treasurers and Assistant Controllers) and such
agents, as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as shall be provided in these Bylaws or as may
be prescribed by the Board of Directors, or any committee thereof, or by the
Chief Executive Officer, as the case may be. Any person may hold any one or more
executive positions.
Section 2. Election and Term of Office.
The elected officers of the Corporation shall be elected annually by the Board
of Directors at the regular meeting of the Board of Directors held after the
annual meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
convenient. Each officer shall hold office until his or her successor shall have
been duly elected and shall have qualified or until his or her death or until he
or she shall resign, but any officer may be removed from office at any time by
the affirmative vote of a majority of the members of the Board of Directors or,
except in the case of an officer or agent elected by the Board or by the Chief
Executive Officer. Such removal shall be without prejudice to the contractual
rights, if any, of the person so removed.
Section 3. Chairman/Vice Chairman. The
full Board of Directors may elect a Chairman of the Board and a Vice Chairman of
the Board of Directors (the “Vice Chairman of the Board”) from among the
directors. The Chairman of the Board and the Vice Chairman of the Board may be
removed from such capacity, but not in his or her capacity as a director, by a
majority vote of the full Board of Directors. The Chairman of the Board shall
preside at all meetings of the shareholders and of the Board of Directors. The
Chairman of the Board shall have such other powers and duties as may from time
to time be prescribed by the Board of Directors, upon written directions given
to him pursuant to resolutions duly adopted by the Board of Directors. The Vice
Chairman of the Board, in the absence of the Chairman of the Board, shall
preside at all meetings of the shareholders and of the Board of Directors. (In
the absence or inability to act of the Chairman of the Board, the Vice Chairman
of the Board and the Chief Executive Officer, the Board of Directors shall elect
a chairman of the meeting.) The Vice Chairman of the Board shall have such other
powers and duties as may from time to time be prescribed by the Board of
Directors, upon written directions given to him pursuant to resolutions duly
adopted by the Board of Directors, or by the Chairman of the Board.
Section 4. Chief Executive Officer. The
Chief Executive Officer, subject to the control of the Board of Directors, shall
act in a general executive capacity and shall control the business and affairs
of the Corporation. In the absence of the Chairman of the Board and the Vice
Chairman of the Board or if a Chairman of the Board and a Vice Chairman of the
Board are not elected by the Board of Directors, the Chief Executive Officer
shall preside at all meetings of the shareholders and, if the Chief Executive
Officer is a director, at all meetings of the Board of Directors. He or she may
also preside at any such meeting attended by the Chairman of the Board if he or
she is so designated by the Chairman of the Board. In the absence of the
Chairman of the Board, he or she may also preside at any such meeting attended
by the Vice Chairman of the Board if he or she is so designated by the Vice
Chairman of the Board. The Chief Executive Officer shall have the power to
appoint and remove subordinate officers, agents and employees, except those
elected by the Board of Directors. The Chief Executive Officer shall keep the
Board of Directors fully informed and shall consult with them concerning the
business of the Corporation.
Section 5. President. The President shall
have general supervision over strategic planning and implementation,
administration and the accounting and finance operations of the Corporation, and
shall see that all resolutions of the Board of Directors are carried into
effect. The President shall have such other duties as may be determined from
time to time by resolution of the Board of Directors not inconsistent with these
Bylaws. The President, in the absence or incapacity of the Chief Executive
Officer, shall also perform the duties of that office. He or she may sign with
the Secretary or any other officer of the Corporation thereunto
authorized by the Board of Directors, certificates for shares of the Corporation
and any deeds, bonds, mortgages, contracts, checks, notes, drafts or other
instruments that the Board of Directors has authorized to be executed, except in
cases where the signing and execution thereof has been expressly delegated by
these Bylaws or by the Board of Directors to some other officer or agent of the
Corporation, or shall be required by law to be otherwise executed. He or she
shall vote, or give a proxy to any other officer of the Corporation to vote, all
shares of stock of any other Corporation standing in the name of the Corporation
and in general he or she shall perform all other duties normally incident to the
office of President and such other duties as may be prescribed by the Board of
Directors from time to time.
Section 6. Vice Presidents. Each Vice
President shall have such powers and shall perform such duties as shall be
assigned to him by the Board of Directors.
Section 7. Chief Operating Officer. The
Chief Operating Officer, if one is elected, shall report to the Chief Executive
Officer, in the event that he or she is also the President, or to the Chief
Executive Officer and the President, in the event that he or she is not also the
President, and shall have general supervision of the day-to-day operation of the
activities of the Corporation and shall perform such duties, and shall have such
other authority and powers as the President (in the event that he or she is not
also the Chief Executive Officer), the Chief Executive Officer or the Board of
Directors may from time to time prescribe. The Chief Operating Officer, with the
approval of either the Chief Executive Officer or the President, shall have
authority to execute instruments, documents, agreements and contracts, in the
name of the Corporation, to the same extent as the President or any Vice
President.
Section 8. Chief Financial Officer. The
Chief Financial Officer, if any, shall act in an executive financial capacity.
He or she shall assist the Chief Executive Officer in the general supervision of
the Corporation’s financial policies and affairs.
Section 9. Principal Accounting Officer.
The Principal Accounting Officer shall be responsible for the Preparation of
annual financial statements, including footnote disclosures and 10-K, the
coordination of annual audit by external auditors, the preparation of quarterly
financial statements, including footnote disclosures and 10-Q, and the
coordination of quarterly reviews by external auditors, and, generally ensuring
compliance with regulatory financial disclosure requirements.
Section 10. Treasurer. The Treasurer shall
exercise general supervision over the receipt, custody and disbursement of
corporate funds. The Treasurer shall cause the funds of the Corporation to be
deposited in such banks as may be authorized by the Board of Directors, or in
such banks as may be designated as depositaries in the manner provided by
resolution of the Board of Directors. He or she shall have such further powers
and duties and shall be subject to such directions as may be granted or imposed
upon him from time to time by the Board of Directors or the Chief Executive
Officer.
Section 11. Secretary and Assistant
Secretary. The Secretary shall keep, or cause to be kept, in one
or more books provided for that purpose, the minutes of all meetings of the
Board of Directors, the committees of the Board of Directors and
the shareholders; he or she shall see that all notices are duly given in
accordance with the provisions of the Articles of Incorporation, these
Bylaws and as required by law; he or she shall be custodian of the records and
the seal of the Corporation; and he or she shall see that the books, reports,
statements, certificates and other documents and records required by law to be
kept and filed are properly kept and filed; and in general, he or she shall
perform all the duties incident to the office of Secretary and such other duties
as from time to time may be assigned to him by the Board of Directors or the
Chief Executive Officer. The Secretary, or any Assistant Secretary, shall have
authority to affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to all other
documents to be executed on behalf of the Corporation under its
seal.
Section 12. Removal. Any officer elected,
or agent appointed, by the Board of Directors may be removed by the affirmative
vote of a majority of the entire Board of Directors whenever, in their judgment,
the best interests of the Corporation would be served thereby. Any officer or
agent appointed by the Chief Executive Officer may be removed by him whenever,
in his or her judgment, the best interests of the Corporation would be served
thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his or her successor or his or her death, resignation or removal,
whichever event shall first occur, except as otherwise provided in an employment
contract or under an employee deferred compensation plan.
Section 13. Vacancies. Any newly created
elected office and any vacancy in any elected office because of death,
resignation or removal may be filled by the Board of Directors for the unexpired
portion of the term at any meeting of the Board of Directors. Any vacancy in an
office appointed by the Chief Executive Officer because of death, resignation or
removal may be filled by the Chief Executive Officer.”
ARTICLE
IV. DISTRIBUTIONS
The Board
of Directors may, from time to time, declare distributions to its shareholders
in cash, property, or its own shares, unless the distribution would cause (i)
the Corporation to be unable to pay its debts as they become due in the usual
course of business, or (ii) the Corporation’s assets to be less than its
liabilities plus the amount necessary, if the Corporation were dissolved at the
time of the distribution, to satisfy the preferential rights of shareholders
whose rights are superior to those receiving the distribution. The shareholders
and the Corporation may enter into an agreement requiring the distribution of
corporate profits, subject to the provisions of law.
ARTICLE
V. CORPORATE RECORDS
The
Corporation shall keep a copy of its articles or restated articles of
incorporation and all amendments to them currently in effect; these Bylaws or
restated Bylaws and all amendments currently in effect; resolutions adopted by
the Board of Directors creating one or more classes or series of shares and
fixing their relative rights, preferences, and limitations, if shares issued
pursuant to those resolutions are outstanding; the minutes of all shareholders’
meetings and records of all actions taken by shareholders without a meeting for
the past three years; written communications to all shareholders generally or
all shareholders of a class of series within the past three years, including the
financial statements furnished for the last three years; a list of names and
business street addresses of its current directors and officers; and its most
recent annual report delivered to the Department of State of the State of
Florida.
Section 2. Shareholders’ Inspection
Rights. A shareholder is entitled to inspect and copy, during
regular business hours at a reasonable location specified by the Corporation,
any books and records of the Corporation. The shareholder must give the
Corporation written notice of this demand at least five business days before the
date on which he wishes to inspect and copy the record(s). The demand must be
made in good faith and for a proper purpose. The shareholder must describe with
reasonable particularity the purpose and the records he desires to inspect, and
the records must be directly connected with this purpose. This Section does not
affect the right of a shareholder to inspect and copy the shareholders’ list
described in this Article if the shareholder is in litigation with the
Corporation. In such a case, the shareholder shall have the same rights as any
other litigant to compel the production of corporate records for
examination.
The
Corporation may deny any demand for inspection if the demand was made for an
improper purpose, or if the demanding shareholder has within the two years
preceding his demand, sold or offered for sale any list of shareholders of the
Corporation or of any other Corporation, has aided or abetted any person in
procuring any list of shareholders for that purpose, or has improperly used any
information secured through any prior examination of the records of this
Corporation or any other corporation.
Section 3. Financial Statements for
Shareholders. Unless modified by resolution of the shareholders
within 120 days after the close of each fiscal year, the Corporation shall
furnish its shareholders with annual financial statements which may be
consolidated or combined statements of the Corporation and one or more of its
subsidiaries, as appropriate, that include a balance sheet as of the end of the
fiscal year, an income statement for that year, and a statement of cash flows
for that year. If financial statements are prepared for the Corporation on the
basis of generally accepted accounting principles, the annual financial
statements must also be prepared on that basis.
Section 4. Other Reports to Shareholders.
If the Corporation indemnifies or advances expenses to any director, officer,
employee or agent otherwise than by court order or action by the shareholders or
by an insurance carrier pursuant to insurance maintained by the Corporation, the
Corporation shall report the indemnification or advance in writing to the
shareholders with or before the notice of the next annual shareholders’ meeting,
or prior to the meeting if the indemnification or advance occurs after the
giving of the notice but prior to the time the annual meeting is held. This
report shall include a statement specifying the persons paid, the amounts paid,
and the nature and status at the time of such payment of the litigation or
threatened litigation.
If the
Corporation issues or authorizes the issuance of shares for promises to render
services in the future, the Corporation shall report in writing to the
shareholders the number of shares authorized or issued, and the consideration
received by the Corporation, with or before the notice of the next shareholders’
meeting.
ARTICLE
VI. STOCK CERTIFICATES
Section 1. Issuance. The Board of
Directors may authorize the issuance of some or all of the shares of any or all
of its classes or series without certificates. Each certificate issued shall be
signed by the President and the Secretary (or the Treasurer). The rights and
obligations of shareholders are identical whether or not their shares are
represented by certificates.
Section 2. Registered Shareholders. No
certificate shall be issued for any share until the share is fully paid. The
Corporation shall be entitled to treat the holder of record of shares as the
holder in fact and, except as otherwise provided by law, shall not be bound to
recognize any equitable or other claim to or interest in the
shares.
Section 3. Transfer of Shares. Shares of
the Corporation shall be transferred on its books only after the surrender to
the Corporation of the share certificates duly endorsed by the holder of record
or attorney-in-fact. If the surrendered certificates are canceled, new
certificates shall be issued to the person entitled to them, and the transaction
recorded on the books of the Corporation.
Section 4. Lost, Stolen or Destroyed
Certificates. If a shareholder claims to have lost or destroyed a
certificate of shares issued by the Corporation, a new certificate shall be
issued upon the delivery to the Corporation of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed, and,
at the discretion of the Board of Directors, upon the deposit of a bond or other
indemnity as the Board reasonably requires.
Section 1. Right to Indemnification. The
Corporation hereby indemnifies each person (including the heirs, executors,
administrators, or estate of such person) who is or was a director or officer of
the Corporation to the fullest extent permitted or authorized by current or
future legislation or judicial or administrative decision against all fines,
liabilities, costs and expenses, including attorneys’ fees, arising out of his
or her status as a director, officer, agent, employee or representative. The
foregoing right of indemnification shall not be exclusive of other rights to
which those seeking an indemnification may be entitled. The Corporation may
maintain insurance, at its expense, to protect itself and all officers and
directors against fines, liabilities, costs and expenses, whether or not the
Corporation would have the legal power to indemnify them directly against such
liability.
Section 2. Advances. Costs, charges and
expenses (including attorneys’ fees) incurred by a person referred to in Section
1 of this Article in defending a civil or criminal proceeding shall be paid by
the Corporation in advance of the final disposition thereof upon receipt of an
undertaking to repay all amounts advanced if it is ultimately determined that
the person is not entitled to be indemnified by the Corporation as authorized by
this Article, and upon satisfaction of other conditions required by current or
future legislation.
Section 3. Savings Clause. If this Article
or any portion of it is invalidated on any ground by a court of competent
jurisdiction1 the Corporation nevertheless indemnifies each person described in
Section 1 of this Article to the fullest extent permitted by all portions of
this Article that have not been invalidated and to the fullest extent permitted
by law.
ARTICLE
VIII. Amendment
These
Bylaws (other than Article I, Section 1(b)) may be altered, amended or repealed,
and new Bylaws adopted, by a majority vote of the directors, in accordance with
the provisions of the Florida Business Corporations Act, or by a vote of the
shareholders holding a majority of the Corporation’s then issued and outstanding
shares provided that any amendment to Article I Section 1(b) shall require the
affirmative vote of holders of sixty-six and two thirds percent (66 2/3%) of the
Corporation’s then issued and outstanding shares.
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