EXHIBIT 3.2
BYLAWS
OF
KIWA BIO-TECH PRODUCTS GROUP CORPORATION
A DELAWARE CORPORATION
(THE "CORPORATION")
ARTICLE I
STOCKHOLDERS MEETINGS
SECTION 1 PLACE OF MEETING. Meetings of the Stockholders shall be held
at the principal offices of the Corporation or at such place, within or without
the State of Delaware, as may from time to time be designated for that purpose,
by the Board.
SECTION 2 ANNUAL MEETINGS. Unless directors are elected by written
consent in lieu of an annual meeting as permitted by this SECTION 2, an annual
meeting of the Stockholders for the election of directors shall be held on such
date and at such time as may be designated, from time to time, by the Board.
Stockholders may, unless the Certificate of Incorporation otherwise provides,
act by written consent to elect directors; provided, however, that if such
consent is less than unanimous, such action by written consent may be in lieu of
holding an annual meeting only if all of the directorships to which directors
could be elected at an annual meeting held at the effective time of such action
are vacant and are filled by such action. If the annual meeting for the election
of directors is not held on the date designated therefor or action by written
consent to elect directors in lieu of an annual meeting has not been taken, the
directors shall cause the meeting to be held as soon as is convenient. Any other
proper business may be transacted at the annual meeting.
SECTION 3 SPECIAL MEETINGS. Special meetings of the Stockholders for
any purpose or purposes may be called at any time by the Board, the Chairman of
the Board or any two directors.
SECTION 4 NOTICE OF MEETINGS. Except as otherwise provided by the DGCL
written notice of each meeting of the Stockholders, whether annual or special,
shall be given not less than 10 nor more than 60 days prior to the date upon
which the meeting is to be held to each Stockholder entitled to vote at such
meeting. Such notice shall be deemed delivered when deposited in the United
States mail, postage prepaid, addressed to the Stockholder at such person's
address as it appears on the stock records of the Corporation, or otherwise
actually delivered to such address or such person. Such notice shall state the
place, date and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. If a meeting is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the adjournment
is taken. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each Stockholder of record entitled to
vote at the meeting.
SECTION 5 QUORUM. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, at each meeting of Stockholders the presence
in person or by
proxy of the holders of shares of stock having a majority of the votes which
could be cast by the holders of all outstanding shares of stock entitled to vote
at the meeting shall be necessary and sufficient to constitute a quorum. In the
absence of a quorum, any meeting of the Stockholders may be adjourned from time
to time by a majority of the votes represented either in person or by proxy, and
no other business may be transacted at a meeting except that the Stockholders
present at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough Stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
SECTION 6 ADJOURNED MEETING. Any Stockholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned by vote of a
majority of the shares present, either in person or by proxy. At any adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting.
SECTION 7 CHAIRMAN OF MEETING; OPENING OF POLLS. Meetings of
Stockholders shall be presided over by the person designated by the Board, or in
the absence of such designation, by the Chairman of the Board, if any, or in his
absence by the Vice Chairman of the Board, if any, or in his absence by the
Chief Executive Officer, or in their absence by a chairman chosen at the meeting
by the Stockholders. The Secretary shall act as secretary of the meeting, but in
his absence, the chairman of the meeting may appoint any person to act as
secretary of the meeting. The chairman of the meeting shall announce at each
meeting of Stockholders the date and time of the opening of the polls for each
matter upon which the Stockholders will vote.
SECTION 8 PROXIES. Each Stockholder entitled to vote at a meeting of
Stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such person
by proxy.
SECTION 9 STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of Stockholders, a complete list of the Stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any Stockholder who is
present.
SECTION 10 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise
provided in the Certificate of Incorporation, any action required to be taken,
or that may be taken, at any annual or special meeting of the Stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action to be taken, shall have been signed
by the holders of outstanding stock eligible to vote on such action, having not
less than the minimum number of votes of each class of stock that would be
necessary to authorize or take such action at a meeting at which all shares of
each class of stock entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered
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office in the State of Delaware, its principal place of business, or to an
officer or agent of the Corporation having custody of the book in which
proceedings of minutes of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this SECTION to the
Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or to an officer or
agent of the Corporation having custody of the book in which proceedings of
minutes of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested.
The Secretary shall give prompt notice of the taking of any corporate
action without a meeting by less than unanimous written consent to those
Stockholders who have not consented in writing and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
Corporation as provided in this SECTION 10.
SECTION 11 INSPECTORS OF ELECTION. In advance of any meeting of the
Stockholders, the Board shall appoint at least one person, other than nominees
for office, as inspectors of election, to act at such meeting or any adjournment
thereof. The number of such inspectors of election shall be one or three. In
case any person appointed as inspector fails to appear or refuses to act, the
vacancy shall be filled by appointment by the Board in advance of the meeting,
or at the meeting by the chairman of the meeting.
The duties of each such inspector shall include: determining the number
of shares outstanding and voting power of each; determining the shares
represented at the meeting; determining the existence of a quorum; determining
the authenticity, validity and effect of proxies; receiving votes, ballots or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; retaining for a reasonable period
the disposition of any challenges made to the inspector's determinations;
counting and tabulating all votes; determining when the polls shall close;
determining the result of any election; certifying the determination of the
number of shares represented at the meeting, and the count of all votes and
ballots; certifying any information considered in determining the validity and
counting of proxies and ballots if that information is used for the purpose of
reconciling proxies and ballots submitted by or on behalf of banks, brokers,
their nominees or similar persons which represent more votes than the
Stockholder holds of record; and performing such acts as may be proper to
conduct the election or vote with fairness to all Stockholders.
An announcement shall be made at each meeting of the Stockholders by
the chairman of the meeting of the date and time of the opening and closing of
polls for each matter upon which the Stockholders will vote at the meeting. No
ballot, proxies or votes, nor any revocations
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thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Delaware Court of Chancery upon application by a
Stockholder shall determine otherwise.
Unless otherwise provided in the Certificate of Incorporation or these
Bylaws, this SECTION 11 shall not apply to the Corporation if the Corporation
does not have a class of voting stock that is:
(a) listed on a national securities exchange;
(b) authorized for quotation on an interdealer quotation system of
a registered national securities association; or
(c) held of record by more than 2,000 stockholders.
SECTION 12 RECORD DATE. In order that the Corporation may determine the
Stockholders entitled to notice of or to vote at any meeting of Stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other action.
If no record date is fixed:
(a) The record date for determining Stockholders entitled to
notice of or to vote at a meeting of Stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held;
(b) The record date for determining Stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board is necessary, shall be the day on which the first written
consent is expressed;
(c) The record date for determining Stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
A determination of Stockholders of record entitled to notice of or to
vote at a meeting of Stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
SECTION 13 CONDUCT OF MEETINGS. The Board may adopt such rules and
regulations for the conduct of meetings of Stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board, the chairman of any meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of the chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether adopted by the
Board or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the
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establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
Stockholders of record, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (iv) restrictions
on entry to meeting after the time fixed for commencement thereof; (v)
limitations on the time allotted to questions or comments by participants.
Unless and to the extent determined by the Board or the chairman of meeting,
meetings of Stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
SECTION 14 EXCEPTION TO REQUIREMENTS OF NOTICE. No notice is required
to be given to any Stockholder under the Certificate of Incorporation or these
Bylaws if under SECTION 230 of the DGCL no such notice is required to be given.
SECTION 15 MATTERS CONSIDERED AT ANNUAL MEETING. At an annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b) otherwise
properly brought before the meeting by or at the direction of the Board, or (c)
otherwise properly brought before the meeting by a Stockholder. For business to
be properly brought before an annual meeting by a Stockholder, the Stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation, not less
than 60 days nor more than 180 days prior to the meeting; PROVIDED, HOWEVER,
that in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to the Stockholders, notice by the
Stockholder to be timely must be so received not later than the close of
business on the 10th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure was made. A
Stockholder's notice to the Secretary shall set forth as to each matter the
Stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the Corporation which are
beneficially owned by the Stockholder, and (d) any material interest of the
Stockholder in such business. Notwithstanding anything in the Bylaws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this SECTION. The chairman of the
annual meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with
the provisions of this section and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
SECTION 16 NOMINATIONS FOR DIRECTOR. Only persons who are nominated in
accordance with the procedures set forth in this SECTION shall be eligible for
election as Directors. Nominations of persons for election to the Board may be
made at a meeting of Stockholders by or at the direction of the Board or by any
Stockholder entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this SECTION. Such nominations,
other than those made by or at the direction of the Board shall be made pursuant
to timely notice in writing to the Secretary of the Corporation. To be timely, a
Stockholder's notice
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shall be delivered to or mailed and received at the principal executive offices
of the Corporation not less than 60 days nor more than 180 days prior to the
meeting; PROVIDED, HOWEVER, that in the event that less than 70 days' notice or
prior public disclosure of the date of the meeting is given or made to the
stockholders, notice by the Stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Such Stockholder's notice shall set forth (a) as to each person whom the
Stockholder proposes to nominate for election or re-election as a Director, (i)
the name, age, business address and residence address of such person, (ii) the
principal occupation or employment of such person, (iii) the class and number of
shares of the Corporation which are beneficially owned by such person, and (iv)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including without limitation such persons' written consent to
being named in the proxy statement as a nominee and to serving as a Director if
elected); and (b) as to the Stockholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such stockholder and (ii)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder. At the request of the Board any person nominated by the
Board for election as a Director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with
the procedures set forth in this SECTION. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed by the Bylaws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1 POWERS. The business and affairs of the Corporation shall be
managed by, or under the direction of the Board, except as may be otherwise
provided by the DGCL or in the Certificate of Incorporation or these Bylaws.
SECTION 2 NUMBER. The Board shall consist of one or more members, the
number thereof to be determined from time to time by resolution of the Board.
SECTION 3 PLACE OF MEETING. Unless otherwise provided in the
Certificate of Incorporation, meetings, both regular and special, of the Board
shall be held at the Corporation's principal executive offices, or at such other
place or places, as the Board or the Chairman of the Board may from time to time
determine.
SECTION 4 REGULAR MEETINGS. Immediately following each annual meeting
of the Stockholders the Board shall hold a regular meeting at the same place at
which such Stockholders' meeting is held, or any other place as may be fixed
from time to by the Board or the Chairman of the Board. Notice of such meeting
need not be given.
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Other regular meetings of the Board shall be held without call at such
time as the Board may from time to time determine. If any day fixed for a
regular meeting shall be a legal holiday at the place where the meeting is to be
held, then the meeting which would otherwise be held on that day shall be held
at the same hour on the next succeeding business day not a legal holiday. Notice
of a regular meeting need not be given.
SECTION 5 SPECIAL MEETINGS. Except as otherwise provided in the
Certificate of Incorporation, special meetings of the Board for any purpose or
purposes may be called at any time by the Chairman of the Board, the Chief
Executive Officer or by any two directors.
Written notice of the time and place of special meetings shall be
delivered personally to each director or communicated to each director by
telephone or telegraph or telex or cable or mail or other form of recorded
communication, charges prepaid, addressed to each director at that director's
address as it is shown on the records of the Corporation or, if it is not so
shown on such records or is not readily ascertainable, at that director's
residence or usual place of business. In case such notice is mailed, it shall be
deposited in the United States mail at least seven days prior to the time of the
holding of the meeting. In case such notice is delivered personally, by
telephone or by other form of written communication, it shall be delivered at
least 48 hours before the time of the holding of the meeting. The notice shall
state the time of the meeting, but need not specify the place of the meeting if
the meeting is to be held at the principal executive office of the Corporation.
The notice need not state the purpose of the meeting unless expressly provided
otherwise by statute.
SECTION 6 MEETINGS BY COMMUNICATION EQUIPMENT. Members of the Board,
or any committee designated by the Board, may participate in a meeting of the
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in a meeting pursuant to this SECTION shall constitute
presence in person at such meeting.
SECTION 7 QUORUM AND MANNER OF ACTING. The presence of a majority of
the total number of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting from time to
time until a quorum is present. Notice of an adjourned meeting need not be
given.
SECTION 8 ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board, or of any committee thereof, may be taken
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION 9 COMPENSATION OF DIRECTORS. The Board may fix the
compensation of directors.
SECTION 10 COMMITTEES. The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting
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of the committee. In the absence or disqualification of a member of the
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and to the extent authorized by the Board, shall
have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it. The
Board may remove any director from a committee with or without cause at any
time.
ARTICLE III
OFFICERS
SECTION 1 OFFICERS. The Board may elect such officers with such titles
as the Board deems advisable. Each officer shall have the powers and duties set
forth in these Bylaws and any resolution of the Board appointing such officer
(to the extent such resolution is not inconsistent with these Bylaws), and to
the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board. The Board may designate two or more persons
as Chairman of the Board, in which case each shall be a Co-Chairman of the
Board. Each such officer shall hold office until his or her successor is elected
and qualified or until his or her earlier resignation or removal. Subject to
contractual obligations to the Company, any officer may resign at any time upon
written notice to the Corporation. The Board may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the Corporation. One person may
hold any number of offices.
SECTION 2 CHAIRMAN OF THE BOARD. The Chairman of the Board, if such an
officer be elected, shall, if present, preside at all meetings of the Board and
exercise and perform such other powers and duties as may be from time to time
assigned to such person by the Board.
SECTION 3 CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers,
if any, as may be given by the Board to the Chairman of the Board, the Chief
Executive Officer, if such an officer be elected, shall, subject to the control
of the Board, have general supervision, direction and control of the business
and the officers of the Corporation. The Chief Executive Officer shall exercise
and perform such other powers and duties as may be from time to time assigned to
such person by the Board, consistent with such person's position as Chief
Executive Officer.
SECTION 4 PRESIDENT. Subject to such supervisory powers, if any, as
may be given by the Board to the Chairman of the Board and the Chief Executive
Officer, if there be such officers, the President shall be the chief operating
officer of the Corporation and shall, subject to the control of the Board, have
general supervision, direction, and control of the business and the officers of
the Corporation (other than the Chairman and Chief Executive Officer). The
President shall have the general powers and duties of management usually vested
in the office of president and general manager of a Corporation, and shall have
such other powers and duties as may be prescribed by the Board and the Chief
Executive Officer.
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SECTION 5 VICE PRESIDENTS. In the absence or disability of the
Chairman, the Chief Executive Officer and the President, the Vice Presidents, if
any, in order of their rank as fixed by the Board, or, if not ranked, the Vice
President designated by the Board shall perform all the duties of such officer,
and when so acting shall have all the powers of, and be subject to all the
restrictions upon, such offices. The Vice Presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board, the Chief Executive Officer or the President.
SECTION 6 SECRETARY. The Secretary shall keep, or cause to be kept, at
the principal executive office or such other place as the Board may direct, a
book of minutes of all meetings and actions of directors, committees of
directors, and Stockholders, with the time and place of holding, whether regular
or special, and, if special, how authorized, the notice given, the names of
those present at directors' meetings or committee meetings, the number of shares
present or represented at Stockholders' meetings, and the proceedings.
The Secretary shall give, or cause to be given, notice of all meetings
of the Stockholders and of the Board required by the Bylaws or by law to be
given, and he shall keep the seal of the Corporation, if one be adopted, in safe
custody, and shall have such other powers and perform such other duties as may
be prescribed by the Board.
SECTION 7 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, 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, and shall
send or cause to be sent to the Stockholders of the Corporation such financial
statements and reports as are by law or these Bylaws required to be sent to
them.
The Chief Financial Officer shall deposit all monies and other
valuables in the name or to the credit of the Corporation with such depositories
as may be designated by the Board or by an officer, if such authority is
delegated by the Board. The Chief Financial Officer shall disburse the funds of
the Corporation as may be ordered by the Board, shall render to the President
and directors, whenever they request it, an account of all transactions
undertaken as Chief Financial Officer and of the financial condition of the
Corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS
SECTION 1 AGENTS, PROCEEDINGS AND EXPENSES. For the purposes of this
Article IV, "agent" means any person who is or was a director, officer, employee
or other agent of the Corporation, or is or was a director, officer, employee or
other agent of the Corporation as a director, officer, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust or
other enterprise, or was a director, officer, employee or agent of a foreign or
domestic corporation which was a predecessor corporation of the Corporation or
of another enterprise at the request of such predecessor corporation;
"proceeding" means any threatened, pending or complete action or proceeding,
whether civil, criminal, administrative, or
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investigative; and "expenses" includes, without limitation, attorneys' fees and
any expenses of establishing a right to indemnification under SECTION 2 or
SECTION 3 of this Article IV.
SECTION 2 ACTIONS OTHER THAN BY THE CORPORATION. The Corporation shall
have power to indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that such person is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contender or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
SECTION 3 ACTIONS BY THE CORPORATION. The Corporation shall have power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for
negligence or misconduct in the performance of such person's duty to the
Corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
SECTION 4 SUCCESSFUL DEFENSE BY AGENT. To the extent that a present or
former director or officer of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
SECTIONs 2 and 3 of this Article IV, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
SECTION 5 REQUIRED APPROVAL. Any indemnification under SECTIONS 1 and
2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent
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is proper in the circumstances because such person has met the applicable
standard of conduct set forth in SECTIONs 2 and 3 of this Article IV. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of the members
of the Board who are not parties to such action, suit or proceeding, even though
less than a quorum, or (b) by a committee of such disinterested directors
designated by majority vote of such disinterested directors, even though less
than a quorum, or (c) if there are no such disinterested directors, or if such
disinterested directors so direct, by independent legal counsel in a written
opinion, or (d) by the affirmative vote of a majority of Stockholders.
SECTION 6 ADVANCE OF EXPENSES. The Corporation may, in its discretion,
pay the expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding, in advance of the final disposition of such action, suit or
proceeding, provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by or on behalf of such director or
officer to repay all amounts advanced if it should ultimately be determined that
the director or officer is not entitled to be indemnified by the Corporation as
authorized in this Article IV or otherwise. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
SECTION 7 CONTRACTUAL RIGHTS. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other sections of this Article
IV shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of Stockholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office and shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8 LIMITATIONS. No indemnification or advance shall be made
under this Article IV, except as provided in SECTION 4, in any circumstances
where it appears:
(a) That it would be inconsistent with a provision of the
Certificate of Incorporation, a resolution of the Stockholders or an agreement
in effect at the time of accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other amounts were paid, which
prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
SECTION 9 INSURANCE. The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would
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have the power to indemnify such person against such liability under the
provisions of this Article IV.
SECTION 10 CONSTITUENT CORPORATIONS. For purposes of this Article IV,
references to "the Corporation" shall include, in addition to the Corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article IV with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 11 DEFINITIONS. For purposes of this Article IV, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article IV.
ARTICLE V
MISCELLANEOUS
SECTION 1 INSPECTION OF BOOKS AND RECORDS BY STOCKHOLDERS. Any
Stockholder of record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its Stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a Stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the Stockholder. The demand under oath shall be directed to the
Corporation at its registered office in the State of Delaware or at its
principal place of business.
SECTION 2 INSPECTION OF BOOKS AND RECORDS BY DIRECTORS. Any director
shall have the right to examine the Corporation's stock ledger, a list of its
Stockholders and its other books and records for a purpose reasonably related to
such person's position as a director. Such right to examine the records and
books of the Corporation shall include the right to make copies and extract
therefrom.
SECTION 3 CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks,
drafts, or other orders for payment of money, notes or other evidences of
indebtedness, issued in the name of or
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payable to the Corporation, shall be signed or endorsed by such person or
persons and in such manner as, from time to time, shall be determined by the
Board. In the absence of such determination, the Chief Executive Officer, the
President, the Chief Operating Officer and the Chief Financial Officer shall
have the authority to sign or endorse such instruments and documents.
SECTION 4 CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The
Board, except as otherwise provided in these Bylaw, may authorize any officer or
officers, agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation, and such person's authority may
be general or confined to specific instances; and, unless so authorized or
ratified by the Board or within the agency power of an officer, no officer,
agent or employee shall have any power or authority to bind the Corporation by
any contract or agreement or to pledge its credit or to render it liable for any
purpose or for any amount. In the absence of specific resolution of the Board
relating to the authority of officers to execute contracts generally, the Chief
Executive Officer, the President, the Chief Operating Officer and the Chief
Financial shall have the authority to execute contracts of the Corporation.
SECTION 5 CERTIFICATES FOR SHARES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by the Chairman or the President or a Vice-President, and by the
Chief Financial Officer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation representing the number of shares owned
by such person in the Corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent, or registrar at the date
of issue.
SECTION 6 TRANSFER OF SHARES. Transfers of shares of the capital stock
of the Corporation shall be made only on the books of the Corporation by the
holder thereof, or by such person's attorney thereunto authorized by a power of
attorney duly executed and filed with the Secretary of the Corporation or a
transfer agent of the Corporation, if any, and on surrender of the certificate
or certificates for such shares properly endorsed. A person in whose name
appears on shares of stock and on the books of the Corporation shall be deemed
the owner thereof as regards the Corporation, and upon any transfer of shares of
stock the person or persons into whose name or names such shares shall have been
transferred, shall enjoy and bear all rights, privileges and obligations of
holders of stock of the Corporation and as against the Corporation or any other
person or persons. The term "person" or "persons" wherever used herein shall be
deemed to include any partnership, corporation, association or other entity.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, such fact, if known to the Secretary or to such transfer agent,
shall be so expressed in the entry of transfer.
SECTION 7 LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may
issue a new certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or such person's legal representative, to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
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SECTION 8 REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chairman
of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer or any person designated by any of such
officers is authorized, in the absence of authorization by the Board, to vote on
behalf of the Corporation any and all shares of any other corporation or
corporations, foreign or domestic, for which the Corporation has the right to
vote. The authority granted to these officers to vote or represent on behalf of
the Corporation any and all shares held by the Corporation in any other
corporation or corporations may be exercised by any of these officers in person
or by any person authorized to do so by proxy duly executed by these officers.
SECTION 9 CONSTRUCTION AND DEFINITIONS. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
DGCL 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. In addition, as used in these Bylaws, the
following terms have the meanings set forth below:
"Board" means the Board of Directors of the Corporation.
"DGCL" means the Delaware General Corporation Law, as the same may from
time to time be amended.
"Stockholders" means the stockholders of the Corporation.
SECTION 10 AMENDMENTS TO BYLAWS. Unless otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered or repealed, and new
Bylaws made, by the Board, but the Stockholders may make additional Bylaws and
may alter and repeal any Bylaws whether adopted by them or otherwise.
SECTION 11 CONFORMANCE TO THE LAW. In the event that it is determined
that these Bylaws, as now written or as amended, conflict with the DGCL, or any
other applicable law, as now enforced or as amended, these Bylaws shall be
deemed amended, without action of the Board or the Stockholders, to conform with
such law. Such amendment to be so interpreted as to bring these Bylaws within
minimum compliance. For purposes of this section, "amendment" shall include a
repeal of, or a change in interpretation of, the relevant compendium.
SECTION 12 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by the Board.
SECTION 13 DIVIDENDS; SURPLUS. Subject to the provisions of the
Certificate of Incorporation and any restrictions imposed by statute, the Board
may declare dividends out of the net assets of the Corporation in excess of its
capital or, in case there shall be no such excess, out of the net profits of the
Corporation for the fiscal year then current and/or the preceding fiscal year,
or out of any funds at the time legally available for the declaration of
dividends (hereinafter referred to as "surplus or net profits") whenever, and in
such amounts as, in its sole discretion, the conditions and affairs of the
Corporation shall render advisable. The Board in its sole discretion may, in
accordance with law, from time to time set aside from surplus or net profits
such sum or sums as it may think proper as a reserve fund to meet contingencies,
or for equalizing dividends, or for the purpose of maintaining or increasing the
property or business of
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the Corporation, or for any other purpose as it may think conducive to the best
interests of the Corporation.
SECTION 14 WAIVER OF NOTICE. Whenever notice is required to be given
under these Bylaws or the Certificate of Incorporation or the DGCL, a written
waiver, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
where the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Stockholders, Board or
any committee of the Board need be specified in any written waiver of notice
unless so required by the Certificate of Incorporation or these Bylaws.
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CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting Secretary of Kiwa Bio-Tech
Products Group Corporation, a Delaware corporation (the "Corporation"); and
(2) That the foregoing Bylaws comprising of 15 pages, constitute the
Bylaws of the Corporation as of July 22, 2004, as duly adopted by the Board of
Directors.
IN WITNESS WHEREOF, I have hereunto subscribed my name as of this 22nd
day of July, 2004.
/s/ James Nian Zhan
------------------------------
James Nian Zhan, Secretary
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