1
Exhibit 3.2
BYLAWS
OF
AMERICAN EAGLE MOTORCYCLE COMPANY, INC.
ARTICLE 1: OFFICES
1. PRINCIPAL OFFICE. The Board of Directors shall fix the location of
the principal executive office of the corporation at any place within or outside
the State of California. If the principal executive office is located outside
California and the corporation has one or more business offices in California,
the Board shall fix and designate a principal business office in California.
2. OTHER OFFICES. Branch or subordinate offices may be established at
any time and at any place by the Board of Directors.
ARTICLE 2: SHAREHOLDERS
1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any
place within or outside of California designated by the board of directors and
stated in the notice of the meeting. If no place is so specified, shareholders'
meetings shall be held at the corporation's principal executive office.
2. ANNUAL MEETING. The annual meeting of shareholders shall be held
on the date and at the time designated each year by the Board of Directors. At
this meeting, directors shall be elected and any other business within the power
of the shareholders may be transacted.
3. SPECIAL MEETINGS; HOW CALLED. A special meeting of the shareholders may be
called at any time by any of the following: The board of directors, the
chairman of the board, the president, any vice president, or one or more
shareholders holding shares that in the aggregate are entitled to cast no less
than 10 percent of the votes at that meeting. For special meetings called by
anyone other than the board of directors, the person or persons calling the
meeting shall make a request in writing to the chairman of the board, the
president, vice president, or secretary, specifying a time and date for the
proposed meeting (which is not less than 35 nor more than 60 days after receipt
of the request) and the general nature of the business to be transacted. Within
20 days after receipt, the officer receiving the request shall cause notice to
be given to the shareholders entitled to vote at the meeting. The notice shall
state that a meeting will be held at the time requested by the person(s)
calling the meeting, and shall state the general nature of the business
proposed to be transacted. If notice if not given within 20 days after receipt
of the request, the person or persons requesting the meeting may give the
notice. Nothing in this paragraph shall limit,
2
fix, or affect the time or notice requirements for shareholder meetings called
by the board of directors.
4. NOTICE OF MEETINGS; TIME AND CONTENTS. Notice of meetings of
shareholders shall be sent or otherwise given not less than 10 nor more than 60
days before the meeting date. The notice shall specify the place, date, and hour
of the meeting. It shall also state (a) for special meetings, the general
nature of the proposed business, or (b) for annual meetings, those matters which
the board of directors at the time of giving the notice intends to present for
action by the shareholders. If directors are to be elected, the notice shall
include the names of all nominees and persons whom the board intends to present
for election, as of the date of the notice. The notice shall also state the
general nature of any proposed action at the meeting to approve:
(a) A transaction in which a director has a financial interest,
within the meaning of Section 310 of the California Corporations Code;
(b) An amendment of the Articles of Incorporation under Section
902 of that Code:
(c) A reorganization under Section 1201 of that Code:
(d) A voluntary dissolution of the corporation under Section 1900
of that Code; or
(e) A distribution in dissolution that requires approval of the
outstanding shares under Section 2007 of that Code.
The manner of giving notice and the determination of shareholders
entitled to receive notice shall be in accordance with these bylaws.
5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any
shareholders' meeting shall be given either (a) personally, or (b) by
first-class mail or by telegraphic or other written communication, charges
prepaid, addressed to the shareholder at the address appearing on the
corporation's books or supplied by the shareholder for purposes of notice. If
the corporation has no such address for a shareholder, notice shall be either
(a) sent by first-class mail addressed to the shareholder at the corporation's
principal executive office, or (b) published at least once in a newspaper of
general circulation in the county where the corporation's principal executive
office is located. Notice is deemed to have been given at the time it was
delivered personally, deposited in the mail, or sent by other means of written
communication.
If any notice or report mailed to a shareholder at the shareholder's
address (as specified in the preceding paragraph) is returned marked "unable to
deliver" at that address, subsequent notices or reports shall be deemed to have
been duly given with further
2
3
mailing if the corporation holds the document available for the shareholder on
written demand at its principal executive office for one year from the date on
which the notice or report was sent to the other shareholders.
An affidavit, certificate, or declaration of mailing (or other
authorized means of delivery) of any notice of share holders' meeting, report,
or other document sent to shareholders shall be executed by the corporate
secretary, assistant secretary, or transfer agent, and filed in the
corporation's minute book.
6. ADJOURNED MEETINGS; NOTICE. Shareholders' meetings (either annual
or special) may be adjourned from time to time by a vote of the majority of the
shareholders represented at that meeting in person or by proxy, whether or not
a quorum is present; however, in the absence of a quorum, no other business may
be transacted, except as specifically authorized in these bylaws.
If a meeting is adjourned to another time or place, new notice is not
required if the new time and place were announced at the original meeting,
unless (a) the board sets a new record date for this purpose, or (b) the
adjournment is for more than 45 days from the original meeting date, in which
case the board must set a new record date. If a new record date is set, new
notice shall be given to the shareholders of record as of that date, in the
same manner as other notices of meetings. At an adjourned meeting, the
corporation may transact any business that would be proper at the original
meeting.
7. WAIVER OF NOTICE OR CONSENT BY ABSENTEES. The transactions of any
shareholders' meeting, either annual or special, however called and noticed and
wherever held, shall be as valid as though they were had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if each person entitled to vote but not present at the meeting signs
a written waiver of notice, a consent to holding the meeting, or an approval of
the minutes. Shareholders' signatures may be obtained either before or after the
meeting. The waiver of notice or consent need not specify either the intended
business or the purpose of the meeting, except that if action is taken or
proposed to be taken regarding any of the matters specified in Section 601(f)
of the California Corporations Code (and listed above in the paragraph on
contents of notices of shareholder meetings), the general nature of the action
or proposed action must be stated in the waiver of notice or consent. All
written waivers, consents, and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Notice is also waived by a shareholder's attendance at the meeting,
unless the shareholder at the beginning of the meeting objects to the
transaction of any business on the ground that the meeting was not lawfully
called or convened. Attendance and failure to object to the validity of the
meeting, however, does not constitute a waiver of any right to object
expressly, at a meeting, to consideration of matters required by law to be
included in the notice of the meeting which were not so included.
3
4
8. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action that could
be taken at an annual or special meeting of shareholders, except for the
election of directors (see following paragraph), may be taken without a meeting
and without prior notice, if a consent in writing, setting forth the action so
taken, is signed by the holders of outstanding shares having at least the
minimum number of votes necessary to authorize or take that action at a meeting
at which all shares entitled to vote on that action were present and voting.
Directors may be elected without a meeting only by the unanimous
written consent of all shares entitled to vote for the election of directors,
except that vacancies the board is entitled to fill (vacancies other than those
caused by removal of a director) may be filled by the written consent of a
majority of the outstanding shares entitled to vote.
All written consents shall be filed with the secretary of the
corporation and maintained in the corporate records. Anyone who has given a
written consent may revoke it by a writing received by the secretary of the
corporation before written consents of the number of shares required to
authorize the proposed action have been filed with the secretary.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, the secretary shall give prompt notice of any corporate
action approved by the share holders without a meeting by less than unanimous
consent, to those shareholders entitled to vote who have not consented in
writing. As to approvals required by California Corporations Code Section 310
(transactions in which a director has a financial interest), Section 317
(indemnification of corporate agents), Section 1201 (corporation
reorganization), or Section 2007 (certain distributions on dissolution), notice
of the approval shall be given at least ten days before the consummation of any
action authorized by the approval. Notice shall be given in the manner
specified in these bylaws for notice of shareholders' meetings.
9. RECORD DATE FOR SHAREHOLDER NOTICE AND VOTING.
(a) For purposes of determining the shareholders entitled to
receive notice of and vote at a shareholders' meeting or give written consent
to corporate action without a meeting, the board may fix in advance a record
date that is not more than 60 days nor less than 10 days before the date of any
such meeting, or not more than 60 days before any such action without a meeting.
(b) If no record date has been fixed:
(i) The record date for determining share holders entitled
to receive notice of and vote at a shareholders' meeting shall be the business
day next preceding the day on which notice is given, or if notice is waived as
provided in these bylaws, the business day next preceding the day on which the
meeting is held;
(ii) The record date for determining share holders entitled
to give written consent to corporate action without a meeting shall be the day
on which the
4
5
action to be approved was taken by the board, or, if the board has not yet
acted, the day on which the first written consent is given; and
(iii) The record date for any other purpose shall be as set
forth in the section of these bylaws regarding record date for purposes other
than notice and voting.
(c) A determination of shareholders of record entitled to receive
notice of and vote at a shareholders' meeting shall apply to any adjournment of
the meeting unless the board fixes a new record date for the adjourned meeting.
However, the board shall fix a new record date if the adjournment is to a date
more than 45 days after the date set for the original meeting.
(d) Except as otherwise required by law, only shareholders of
record on the corporation's books at the close of business on the record date
shall be entitled to any of the notice and voting rights listed in subsection
(a) of this section, notwithstanding any transfer of shares on the
corporation's books after the record date.
10. QUORUM. The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. The shareholders present
at a duly called or held meeting at which a quorum was initially present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less than a quorum; however, any action taken
(other than adjournment) must be approved by at least a majority of the shares
required to constitute a quorum.
11. VOTING. The corporation shall determine the shareholders entitled
to vote at any shareholders' meeting in accordance with bylaw provisions for
record date, subject to Sections 702 and 704 of the California Corporations
Code (concerning the voting of shares held by a fiduciary, a corporation, or
joint owners). Except as otherwise provided by law or as otherwise provided in
the Articles of Incorporation, each outstanding share shall be entitled to one
vote on each matter submitted to a vote of the shareholders.
The shareholders may vote by voice vote or by ballot, except that if
any shareholder so demands before the voting begins, any election for directors
must be by ballot. On any matter other than the election of directors, a
shareholder may vote part of his or her shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the proposal. If
a shareholder does not specify the number of shares being voted, it will be
conclusively presumed that the shareholder's vote covers all shares which that
shareholder is entitled to vote.
If a quorum is present (or if a quorum had been present earlier at the
meeting but some shareholders have withdrawn), the affirmative vote of a
majority of the shares represented and voting, provided such affirmative vote
also constitutes a majority of the number of shares
5
6
required for a quorum, shall be the act of the shareholders unless the vote of
a greater number or voting by classes is required by statute or by the Articles
of Incorporation.
12. CUMULATIVE VOTING. Cumulative voting for the election of
directors is permitted if one or more shareholders present at the meeting give
notice, before the voting begins, of their intention to cumulate votes (i.e.,
cast for any candidate a number of votes greater than the number of votes which
that shareholder would normally be entitled to cast). If any shareholder has
given such notice, and if the candidates' names have been placed in nomination,
then all shareholders entitled to vote may cumulate their votes, giving any
nominated candidate a number of votes equal to the number of directors to be
elected multiplied by the number of votes to which that shareholder's shares
are normally entitled, or distributing the cumulative number of votes among any
or all of the candidates. The elected directors shall be those candidates (up
to the number of directorships open for election) receiving the most votes.
13. PROXIES. Every person entitled to vote for directors or on any
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
secretary of the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission, or otherwise) by the shareholder or the
shareholder's attorney in fact.
A validly executed proxy that does not state that it is irrevocable
shall continue in full force and effect unless (a) it is revoked by the person
who executed the proxy, either by a writing delivered to the corporation before
the proxy has been voted, or by attendance at the meeting; or (b) the
corporation receives written notice of the shareholder's death or incapacity
before the vote pursuant to that proxy has been counted; provided, however,
that no proxy shall be valid after the expiration of 11 months from the date of
the proxy unless the proxy itself provides otherwise.
Proxies stating on their face that they are irrevocable shall be
governed by Sections 705(e) and 705(f) of the California Corporations Code.
14. VOTING TRUSTS. If any shareholders file a voting trust agreement
with the corporation, the corporation shall take notice of its terms and
trustee limitations.
15. ELECTION INSPECTORS. Before any shareholders' meeting, the board
of directors may appoint any persons other than nominees for the office to act
as election inspectors. If no election inspectors have been so appointed, the
chairman of the meeting may, and on the request of any shareholder or
share holder's proxy shall, appoint election inspectors at the meeting. The
number of inspectors shall be either 1 or 3. If inspectors are appointed at the
meeting on the request of one or more shareholders or their proxies, the
holders of a majority of shares or their proxies present at the meeting shall
determine whether 1 or 3 inspectors are to be appointed. If any inspector fails
to appear or fails or
6
7
refuses to act, the chairman of the meeting may, and on the request of any
shareholder or shareholder's proxy shall, appoint a person to fill that
vacancy. These inspectors shall (a) determine the number of shares outstanding
and the voting power of each, the shares represented at the meeting, the
existence of a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots, or consents; (c) hear and determine all challenges
and questions in any way arising in connection with the right to vote; (d)
count and tabulate all votes or consents; (e) determine when the polls shall
close; (f) determine the result; and (g) do any other acts that may be proper to
conduct the election or vote with fairness to all shareholders.
ARTICLE 3: DIRECTORS
1. POWERS. Subject to the provisions of the California General
Corporation Law and any limitations in the Articles of Incorporation and these
bylaws relating to actions requiring approval by shareholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the board of directors.
Without prejudice to these general powers, and subject to the same
limitations, the board of directors shall have the power to:
(a) Select and remove all officers, agents, and employees of the
corporation; prescribe any powers and duties for them that are consistent with
law, with the Articles of Incorporation, and with these bylaws; fix their
compensation; and require from them security for faithful service;
(b) Change the principal executive office or the principal
business office in the State of California from one location to another;
qualify the corporation to do business in any other state, territory,
dependency, or country; conduct business within or outside the State of
California; and designate any place within or outside the State of California
for the holding of any shareholders' meeting;
(c) Adopt, make and use a corporate seal; prescribe the forms of
certificates of stock; and alter the form of the seal and certificates;
(d) Authorize the issuance of shares of corporate stock on any
lawful terms, in consideration of money paid, labor done, services actually
rendered, debts or securities cancelled, or tangible or intangible property
actually received; and
(e) Borrow money and incur indebtedness on behalf of the
corporation, and cause to be executed and delivered for the corporation's
purposes, in the corporate name, promissory notes, bonds, debentures, deeds of
trust, mortgages, pledges, hypothecations, and other evidences of debt and
securities.
7
8
2. NUMBER OF DIRECTORS. The authorized number of directors shall be
as set forth below. This number can be changed by an amendment to the Articles
of Incorporation or an amendment to this bylaw adopted by the vote or written
consent of a majority of the outstanding shares entitled to vote. However, if
the number of directors is five or more, an amendment that would reduce the
number of directors to a number less than five cannot be adopted if the votes
cast against its adoption at a meeting or the shares not consenting to an
action by written consent are equal to more than one sixth (16 2/3 percent) of
the outstanding shares entitled to vote.
Number of Directors: Five(5)
3. ELECTION AND TERM OF DIRECTORS. Directors shall be elected at each
annual shareholders' meeting, to hold office until the next annual meeting.
Election of directors by written consent without a meeting requires the
unanimous written consent of the outstanding shares entitled to vote. Each
director, including a director elected to fill a vacancy, shall hold
office until the expiration of the term for which elected and until a successor
has been elected and qualified.
No reduction of the authorized number of directors shall have the
effect of removing any director before his or her term of office expires
4. VACANCIES. A vacancy in the board of directors shall be deemed to
exist (a) if a director dies, resigns, or is removed by the shareholders or an
appropriate court, as provided in Section 303 or Section 304 of the California
Corporations Code; (b) if the board of directors declares vacant the office of a
director who has been convicted of a felony or declared of unsound mind by an
order of court; (c) if the authorized number of directors is increased; or (d)
if at a shareholders' meeting the shareholders fail to elect the full
authorized number of directors. Vacancies (except for those caused by a
director's removal) may be filled by a majority of the remaining directors,
whether or not they constitute a quorum, or by a sole remaining director.
Vacancies on the board caused by the removal of a director (except for
vacancies created when the board declares the office of a director vacant
as provided in clause (b) of the first paragraph of this section) may be filled
only by the shareholders, either by majority vote of the shares represented and
voting at a meeting at which a quorum is present, or by the unanimous written
consent of all shares entitled to vote.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary, or the board of directors,
unless the notice specifies a later effective date. If the resignation is
effective at a future time, the board of directors may elect a successor to
take office when the resignation becomes effective.
The shareholders may elect a director at any time to fill a vacancy
not filled by the board of directors.
8
9
The term of office of a director elected to fill a vacancy shall run
until the next annual shareholders' meeting, and the director shall hold office
until a successor is elected and qualified.
5. PLACE OF MEETINGS. Regular meetings of the board of directors may
be held at any place within or outside the State of California as designated
from time to time by the board. In the absence of a designation, regular
meetings shall be held at the principal executive office of the corporation.
Special meetings of the board may be held at any place within or outside the
State of California designated in the notice of the meeting, or if the notice
does not state a place, at the principal executive office of the corporation.
Any meeting, regular or special, may be held by conference telephone or similar
communication equipment, provided that all directors participating can hear one
another.
6. ANNUAL DIRECTORS' MEETING. Immediately after each annual
shareholders' meeting, the board of directors shall hold a regular meeting at
the same place or at any other place designated by the board, to elect officers
and transact other necessary business as desired. Notice of this meeting shall
not be required unless some place other than the place of the annual
shareholders' meeting has been designated.
7. OTHER REGULAR MEETINGS. Other regular meetings of the board of
directors shall be held without call at times to be fixed by the board of
directors from time to time. Such regular meetings may be held without notice.
8. SPECIAL MEETINGS. Special meetings of the board of directors may
be called for any purpose or purposes at any time by the chairman of the board,
the president, any vice president, the secretary, or any two directors.
Special meetings shall be held on 4 days' notice by mail or 48 hours'
notice delivered personally or by telephone or telegraph. Oral notice given
personally or by telephone may be transmitted either to the director or to a
person at the director's office who can reasonably be expected to communicate
it promptly to the director. Written notice, if used, shall be addressed to
each director at his or her address shown on the corporate records. The notice
need not specify the purpose of the meeting, nor need it specify the place if
the meeting is to be held at the principal executive office of the corporation.
9. WAIVER OF NOTICE. Notice of a meeting, if other wise required,
need not be given to any director who (a) either before or after the meeting
signs a waiver of notice or a consent to holding the meeting without being
given notice, (b) signs an approval of the minutes of the meeting, or (c)
attends the meeting without protesting the lack of notice before or at the
beginning of the meeting. Waivers of notice or consents need not specify the
purpose of the meeting. All such waivers, consents, and approvals of the
minutes, if written, shall be filed with the corporate records or made a part
of the minutes of the meeting.
9
10
10. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except for adjournment.
Except as otherwise required by California Corporations Code Section
310 (approval of contracts or transactions in which a director has a material
financial interest), Section 311 (appointment of committees), and Section
317(e) (indemnification of directors), every act done or decision made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be deemed the act of the board of directors, unless a different
requirement is imposed by the Articles of Incorporation.
A meeting at which a quorum was initially present may continue to
transact business despite the withdrawal of directors, if the action taken is
approved by at least a majority of the quorum required for that meeting.
11. ADJOURNMENT TO ANOTHER TIME OR PLACE. Whether or not a quorum is
present, a majority of the directors present may adjourn any meeting to another
time and place.
12. NOTICE OF ADJOURNED MEETING. Notice of the time and place of
resuming an adjourned meeting need not be given if the adjournment is for 24
hours or less. If the adjournment is for more than 24 hours, notice of the new
time and place shall be given, before the time set for resuming the meeting, to
any directors who were not present at the time of adjournment, but need not be
given to directors who were present at the time of adjournment.
13. ACTION WITHOUT A MEETING BY WRITTEN CONSENT. Any action required
or permitted to be taken by the board of directors may be taken without a
meeting, if all members of the board individually or collectively consent in
writing to that action. Any action by written consent shall have the same
effect as a unanimous vote of the board of directors. All such written consents
shall be filed with the minutes of the proceedings of the board of directors.
14. COMPENSATION OF DIRECTORS. Directors and members of committees of
the board may be compensated for their services, and shall be reimbursed for
expenses, as fixed or determined by resolution of the board of directors. This
section shall not preclude any director from serving the corporation as an
officer, agent, employee, or in any other capacity, and receiving compensation
for those services.
15. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part of
the compensation, including expenses, paid by the corporation to a director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The board of directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
10
11
ARTICLE 4: COMMITTEES
1. EXECUTIVE AND OTHER COMMITTEES OF THE BOARD. The board of
directors, by resolution adopted by a majority of the authorized number of
directors, may create one or more committees with the authority of the board
("board committees" or "committees of the board"), including an executive
committee. Each board committee shall consist of two or more directors, and may
have one or more alternate members, also directors. Appointment of members and
alternate members requires the affirmative vote of a majority of the authorized
number of directors. Committees of the board, to the extent provided in the
board resolution establishing the committee, may be granted any or all of the
powers and authority of the board except for the following:
(a) Approving any action for which the California Corporations
Code also requires the approval of the shareholders or of the outstanding
shares;
(b) Filling vacancies on the board of directors or any committee
of the board;
(c) Fixing directors' compensation for serving on the board or a
committee of the board;
(d) Adopting, amending, or repealing bylaws;
(e) Amending or repealing any resolution of the board of
directors which by its express terms is not so amendable or repealable;
(f) Making distributions to shareholders, except at a rate or in
a periodic amount or within a price range determined by the board of directors;
or
(g) Appointing other committees of the board or their members.
2. MEETINGS AND ACTIONS OF BOARD COMMITTEES. Meetings and actions of
committees of the board shall be governed by the bylaw provisions applicable to
meetings and actions of the board of directors as to place of meetings, regular
meetings, special meetings, waiver of notice, quorum, adjournment, notice of
adjournment, and action by written consent without a meeting, with such changes
in the context of those bylaws as are necessary to substitute the committee and
its members for the board of directors and its members, except that (a) the time
of regular committee meetings may be determined either by resolution of the
board of directors or by resolution by the committee; (b) special committee
meetings may also be called by resolution of the board of directors; (c) notice
of special committee meetings shall also be given to all alternate members; and
(d) alternate members shall have the right to attend all meetings of the
committee. The board may adopt rules, not inconsistent with the bylaws, for the
governance of committees of the board.
11
12
3. NON-BOARD COMMITTEES. One or more committees without the power and
authority of the board ("non-board" committees) may be created by board
resolution, for investigative and other appropriate purposes. Membership on
non-board committees is not limited to directors. To bind the corporation,
actions of non-board committees must be ratified by the board of directors.
ARTICLE 5: OFFICERS
1. OFFICERS; ELECTION. The corporation shall have a chief executive
officer, a secretary, and a chief financial officer. There may also be other
officers as specified in the bylaws or designated by the board. Any number of
offices may be held by the same person. The officers of the corporation (except
for subordinate officers appointed in accordance with the provisions below)
shall be elected annually by the board of directors. All officers shall serve
at the pleasure of the board.
2. CHIEF EXECUTIVE OFFICER. Except to the extent that the bylaws or
the board of directors assign specific powers and duties to the chairman of the
board, the president shall serve as general manager and chief executive officer
of the corporation and shall have general supervision, direction, and control
over the corporation's business and its officers, with all the general powers
and duties of management usually vested in a corporation's chief executive
officer.
The president shall preside at all shareholders' meetings, and shall
exercise and perform such other powers and duties as prescribed by the bylaws
or by the board of directors. The president shall also preside at board
meetings if there is no chairman of the board or if the chairman is absent.
3. SECRETARY. The secretary shall have the following duties:
(a) MINUTES. The secretary shall be present at and take the
minutes of all meetings of the shareholders, the board of directors, and
committees of the board. If the secretary is unable to be present, the secretary
or the presiding officer of the meeting shall designate another person to take
the minutes of the meeting. The secretary shall keep, or cause to be kept, at
the principal executive office or such other place as designated by the board
of directors, a book of minutes of all meetings and actions of the
shareholders, the board of directors, and committees of the board. The minutes
of each meeting shall state the following: The time and place of the meeting;
whether it was regular or special; if special, how it was called or authorized;
the notice given or waivers or consents obtained; the names of directors
present at board or committee meetings; the number of shares present or
represented at shareholders' meetings, and an accurate account of the
proceedings.
(b) RECORD OF SHAREHOLDERS. The secretary shall keep or cause to
be kept, at the principal executive office or at the office of the transfer
agent or registrar, a record or duplicate record of shareholders. This record
shall show the name of all
12
13
shareholders and their addresses, the number and classes of shares held by
each, the number and date of share certificates issued to each shareholder, and
the number and date of cancellation of any certificates surrendered for
cancellation.
(c) NOTICE OF MEETINGS. The secretary shall give notice, or cause
notice to be given, of all shareholders' meetings, board meetings, and
committee meetings for which notice is required by statute or by the bylaws. If
the secretary or other person authorized by the secretary to give notice fails
to act, notice of any meeting may be given by any other officer of the
corporation. The secretary shall maintain records of the mailing or other
delivery of notices and documents to shareholders or directors, as prescribed
by the bylaws or by the board of directors.
(d) OTHER DUTIES. The secretary shall keep the seal of the
corporation, if any, in safe custody. The secretary shall have such other
powers and perform such other duties as prescribed by the Board of Directors or
by the Bylaws.
4. CHIEF FINANCIAL OFFICER. The chief financial officer, who may also
be referred to as the treasurer, 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; (2) disburse corporate funds as authorized by the
board; (3) whenever requested by the board or the chief executive officer,
render a statement of the corporation's financial condition and an account of
all transactions he or she has conducted as chief financial officer; and (4)
exercise such other powers and perform such other duties as prescribed by the
bylaws or by the board of directors.
The chief financial officer shall be deemed the treasurer for any
purpose requiring action by the corporation's treasurer.
5. VICE PRESIDENTS. There may be one or more vice presidents, as
determined by the board. In the absence or disability of the president, the
president's duties and responsibilities shall be carried out by the
highest-ranking available vice president, or if there are two or more unranked
vice presidents, by a vice president designated by the board of directors. When
so acting, a vice president shall have all the powers of and be subject to all
the restrictions on the president. Vice presidents shall have such other powers
and perform such other duties as prescribed by the bylaws or assigned from time
to time by the board of directors or the chief executive officer.
6. SUBORDINATE OFFICERS. The board of directors may appoint, and may
empower the chief executive officer to appoint, subordinate officers as
required by the
13
14
corporation's business, whose duties shall be as provided in the bylaws or as
determined from time to time by the board of directors or the chief
executive officer.
7. REMOVAL AND RESIGNATION OF OFFICERS. Any officer chosen by the
board of directors may be removed by the board at any time, with or without
cause or notice. Subordinate officers appointed by persons other than the board
may be removed at any time, with or without cause or notice, by the board or by
the person by whom appointed. A removed officer shall have no claim against the
corporation or individual officers or board members arising from such removal
(other than any rights he or she may have to monetary compensation or damages
under an employment contract).
Any officer may resign at any time by giving the corporation written
notice. Unless otherwise specified in the notice, resignations shall take
effect on the date the notice is received, and acceptance of the resignation is
not necessary to make it effective. An officer's resignation or its acceptance
by the corporation shall not prejudice any rights the corporation may have to
monetary damages under an employment contract.
8. VACANCIES IN OFFICES. Vacancies in offices resulting from an
officer's death, resignation, removal, disqualification, or any other cause
shall be filled by the board or by the person, if any, authorized by the bylaws
or the board to make an appointment to that office.
9. COMPENSATION. Salaries of officers and other shareholders employed
by the corporation shall be fixed from time to time by the board of directors
or established under employment agreements approved by the board of directors.
No officer shall be prevented from receiving this salary because he or she is
also a director of the corporation.
10. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part of
the compensation, including expenses, paid by the corporation to a director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The board of directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
ARTICLE 6: INDEMNIFICATION
1. INDEMNIFICATION OF AGENTS. The corporation, to the maximum extent
permitted by the California General Corporation Law, shall have power to
indemnify any of its agents against expenses, judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with any
proceeding or potential proceeding arising out of the relationship, and to the
maximum extent permitted by law, the corporation shall have power to advance
the agent's reasonable defense expenses in any such proceeding. For the
purposes of this section, "agent" means any person who is or was a director,
officer, employee, or other agent of this corporation or its predecessor, and
any person who is or was
14
15
serving as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise, at the request of this
corporation or its predecessor; "proceeding" means any threatened, pending, or
completed action or proceeding, whether civil, criminal, administrative, or
investigative; and "expenses" include but are not limited to attorneys' fees
and any expenses of establishing a right to indemnification under this section.
ARTICLE 7: RECORDS AND REPORTS
1. SHAREHOLDER LISTS; INSPECTION BY SHAREHOLDERS. The corporation
shall keep at its principal executive office or at the office of its transfer
agent or registrar, as the board shall determine, a record of the names and
addresses of all shareholders and the number and class of shares held by each.
A shareholder or group of shareholders holding 5 percent or more of
the outstanding voting shares of the corporation may (a) inspect and copy the
record of shareholders' names and addresses and shareholdings during usual
business hours, on 5 days' prior written demand on the corporation; and/or (b)
obtain from the corporation's transfer agent, on written demand and tender of
the transfer agent's usual charges for this service, a list of the names and
addresses of shareholders entitled to vote for the election of directors and
their shareholdings, as of the most recent date for which a record has been
compiled or as of a specified date which is later than the date of demand. This
list shall be made available within 5 days after demand or within 5 days after
the specified later date as of which the list is to be compiled.
The record of shareholders shall also be open to inspection during
usual business hours, on the written demand of any shareholder or holder of a
voting trust certificate, for a purpose reasonably related to the holder's
interest in the corporation. Any inspection or copying under this section may
be made in person or by the holder's agent or attorney.
2. MAINTENANCE OF BYLAWS. The corporation shall keep at its principal
executive office, or if its principal executive office is not in California, at
its principal business office in this state, the original or a copy of the
bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours. If the principal
executive office of the corporation is outside of California and the
corporation has no principal business office in this state, the secretary
shall, upon a shareholder's written request, furnish to that shareholder a copy
of the bylaws as amended to date.
3. MINUTES AND ACCOUNTING RECORDS. The minutes of proceedings of
shareholders, board of directors, and committees of the board, and the
accounting books and records shall be kept at the principal executive office of
the corporation, or at such other place or places as designated by the board of
directors. The minutes shall be kept in
15
16
written form, and the accounting books and records shall be kept either in
written form or in a form capable of being converted into written form. The
minutes and accounting books and records shall be open to inspection during
usual business hours on the written demand of any shareholder or holder of a
voting trust certificate, for a purpose reasonably related to the holder's
interests in the corporation. The inspection may be made in person or by an
agent or attorney, and includes the right to copy and make extracts. These
rights of inspection shall extend to the records of each subsidiary of the
corporation.
4. INSPECTION BY DIRECTORS. Every director shall have the absolute
right at any reasonable time to inspect all books, records, and documents of
every kind and the physical properties of the corporation and each of its
subsidiary corporations. This inspection may be made by the director in person
or by an agent or attorney, and the right of inspection includes the right to
copy and make extracts of documents.
5. ANNUAL REPORT TO SHAREHOLDERS. Inasmuch as, and for as long as,
there are less than 100 shareholders, the requirement of an annual report to
shareholders referred to in Section 1501 of the California Corporations Code is
expressly waived. However, nothing in this provision shall be interpreted as
prohibiting the board of directors from issuing annual or other periodic
reports to the shareholders, as the board considers appropriate.
6. FINANCIAL STATEMENTS. The corporation shall keep a copy of any
annual financial statement, quarterly or other periodic income statement, and
accompanying balance sheets on file in its principal executive office for 12
months; these documents shall be exhibited (or copies provided) to share
holders at all reasonable times. If no annual report for the last fiscal year
has been sent to shareholders, on written request of any shareholder made more
than 120 days after the close of the fiscal year, the corporation shall deliver
or mail to the shareholder, within 30 days after receipt of the request, a
balance sheet as of the end of that fiscal year and an income statement and
statement of changes in financial position for that fiscal year.
A shareholder or shareholders holding 5 percent or more of the
outstanding shares of any class of stock of the corporation may request in
writing an income statement for the most recent three-month, six-month, or
nine-month period (ending more than 30 days before the date of the request) of
the current fiscal year, and a balance sheet as of the end of that period. If
such documents are not already prepared, the chief financial officer shall
cause them to be prepared and shall deliver them personally or by mail to the
requesting shareholders within 30 days after the receipt of the request. A
balance sheet, income statement, and statement of changes in financial position
for the last fiscal year shall also be included, unless the corporation has
sent the shareholders an annual report for the last fiscal year.
Quarterly income statements and balance sheets referred to in this
section shall be accompanied by the report, if any, of independent accountants
engaged by the corporation,
16
17
or a certificate by the authorized corporate officer stating that the financial
statements were prepared without audit from the corporation's books and records.
7. ANNUAL INFORMATION STATEMENT.
(a) Every year, during the calendar month in which the original
Articles of Incorporation were filed with the California Secretary of State or
during the preceding five calendar months, the corporation shall file a
statement with the Secretary of State on the prescribed form, setting forth the
authorized number of directors; the names and complete business or residence
addresses of the chief executive officer, the secretary, and the chief
financial officer; the street address of the corporation's principal executive
office or principal business office in this state; a statement of the general
type of business constituting the principal business activity of the
corporation, and a designation of the corporation's agent for service of
process, all in compliance with Section 1502 of the Corporations Code of
California.
(b) Notwithstanding the provisions of paragraph (a) of this
section, if there has been no change in the information contained in the
corporation's last annual statement on file in the Secretary of State's office,
the corporation may, in lieu of filing the annual statement, advise the
Secretary of State, on the appropriate form, that no changes in the required
information have occurred during the applicable period.
ARTICLE 8: GENERAL CORPORATE MATTERS
1. RECORD DATE FOR DIVIDENDS AND DISTRIBUTIONS. For purposes of
determining the shareholders entitled to receive payment of dividends or other
distributions or allotment of rights, or entitled to exercise any rights in
respect of any other lawful action (other than voting at and receiving notice of
shareholders' meetings and giving written consent of the shareholders without a
meeting), the board of directors may fix in advance a record date not more than
60 nor less than 10 days before the date of the dividend payment, distribution,
allotment, or other action. If a record date is so fixed, only shareholders of
record at the close of business on that date shall be entitled to receive the
dividend, distribution, or allotment of rights, or to exercise the other rights,
as the case may be, notwithstanding any transfer of any shares on the corporate
books after the record date, except as otherwise provided by statute.
If the board of directors does not so fix a record date in advance,
the record date for these purposes shall be at the close of business on the
later of (a) the day on which the board of directors adopts the applicable
resolution or (b) the 60th day before the date of the dividend payment,
distribution, allotment of rights, or other action.
2. AUTHORIZED SIGNATORIES FOR CHECKS. All checks, drafts, or other
orders for payment of money, notes, and other evidences of indebtedness issued
in the name
17
18
of or payable to the corporation shall be signed or endorsed in the manner and
by the persons authorized by the board of directors.
3. EXECUTING CONTRACTS AND INSTRUMENTS. The board of directors may
authorize any of its officers or agents to enter into any contract or execute
any instrument in the name of and on behalf of the corporation. This authority
may be general or it may be confined to one or more specific matters. No
officer, agent, employee, or other person purporting to act on behalf of the
corporation shall have any power or authority to bind the corporation in any
way, pledge its credit, or render it liable for any purpose in any amount,
unless that person was acting with authority duly granted by the board of
directors as provided in these bylaws, or unless an unauthorized act was later
ratified by the corporation.
4. SHARE CERTIFICATES. One or more certificates for shares of the
capital stock of the corporation shall be issued to each shareholder when any
of the shareholder's shares are fully paid.
All certificates shall certify the number of shares and the class or
series of shares represented by the certificate. All certificates shall be
signed in the name of the corporation by (a) one of the following: the chairman
or vice chairman of the board of directors, the president, or any vice
president; and (b) one of the following: the chief financial officer, any
assistant treasurer, the secretary, or any assistant secretary. Any of the
signatures on the certificate may be facsimile. If a party who has signed share
certificates ceases to be an officer or other agent before the certificate is
issued, the corporation may issue the certificate with the same effect as if
that person were an officer, transfer agent, or registrar at the date of issue.
The share certificates shall state, by way of appropriate legend, any
restrictions on share ownership or transfer, and any other statements required
by applicable federal or state securities regulations.
5. LOST CERTIFICATES. Except as provided in this section, no new
certificates for shares shall be issued to replace old certificates unless the
old certificates are surrendered to the corporation for cancellation at the
same time. If share certificates or certificates for any other security have
been lost, stolen, or destroyed, the board of directors may authorize the
issuance of replacement certificates on terms and conditions as the board may
require, which may include a requirement that the owner give the corporation a
bond or other adequate security sufficient to protect the corporation against
any claim that may be made against it (including any expenses or liability) on
account of the alleged loss, theft, or destruction of the old certificate or
the issuance of the replacement certificate.
6. SHARES OF OTHER CORPORATIONS: HOW VOTED. Shares of other
corporations standing in the name of this corporation shall be voted by the
chief executive officer or a person designated by the chief executive officer.
If neither of them is able to act,
18
19
the shares may be voted by a person designated by the board of directors. The
authority to vote shares includes the authority to execute a proxy in the
corporation's name for purposes of voting the shares.
7. REIMBURSEMENT OF NONDEDUCTIBLE COMPENSATION. If all or part of the
compensation, including expenses, paid by the corporation to a director,
officer, employee, or agent is finally determined not to be allowable to the
corporation as a federal or state income tax deduction, the director, officer,
employee, or agent to whom the payment was made shall repay to the corporation
the amount disallowed. The board of directors shall enforce repayment of each
such amount disallowed by the taxing authorities.
8. CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in
Sections 100 through 195 of the California Corporations Code shall govern the
construction of these bylaws. Without limiting the generality of this
provision, the singular number includes the plural, the plural number includes
the singular, and the term "person" includes a corporation and a natural person.
ARTICLE 9: AMENDMENTS
1. AMENDMENT OF ARTICLES OF INCORPORATION. Unless otherwise provided
under California Corporations Code Sections 900 through 911, amendments to the
Articles of Incorporation may be adopted if approved by the board and approved
by a majority of the outstanding shares entitled to vote, either before or
after approval by the board. An amendment to the Articles of Incorporation
shall be effective as of the date that the appropriate certificate of amendment
is filed with the Secretary of State
2. AMENDMENT OF BYLAWS. Except as otherwise required by law or by the
Articles of Incorporation, these bylaws may be amended or repealed, and new
bylaws may be adopted, by the board of directors or by a majority of the
outstanding shares entitled to vote.
19
20
CERTIFICATE OF SECRETARY
OF
AMERICAN EAGLE MOTORCYCLE COMPANY, INC.
a California corporation
I, do hereby certify:
1. That I am the duly elected and acting secretary of the above named
California corporation.
2. That the foregoing Bylaws, comprising nineteen (19) pages,
constitute the bylaws of said corporation as duly adopted at a meeting of the
Board of Directors thereof duly held on April 21 1997.
IN WITNESS WHEREOF, I have hereunto subscribed by name and affixed the
seal of said corporation, this 21st day of April, 1997.
/s/ David Carson
-----------------------------
David Carson, Secretary