AMENDED AND RESTATED
BYLAWS
OF
WORLDWIDE ENERGY & MANUFACTURING USA, INC.
ARTICLE I
OFFICES
The principal office of the corporation shall be designated from time to time by
the corporation and may be within or outside of Colorado.
The corporation may have such other offices, either within or outside Colorado,
as the board of directors may designate or as the business of the corporation
may require from time to time.
The registered office of the corporation required by the Colorado Business
Corporation Act to be maintained in Colorado may be, but need not be, identical
with the principal office, and the address of the registered office may be
changed from time to time by the board of directors.
ARTICLE II
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders shall be held
during the month of June of each year on a date and at a time fixed by the board
of directors of the corporation (or by the president in the absence of action by
the board of directors), beginning with the year 2001, for the purpose of
electing directors and for the transaction of such other business as may come
before the meeting. If the election of directors is not held on the day fixed as
provided herein for any annual meeting of the shareholders, or any adjournment
thereof, the board of directors shall cause the election to be held at a special
meeting of the shareholders as soon thereafter as it may conveniently be held.
A shareholder may apply to the district court in the county in Colorado where
the corporation's principal office is located or, if the corporation has no
principal office in Colorado, to the district court of the county in which the
corporation's registered office is located to seek an order that a shareholder
meeting be held (i) if an annual meeting was not held within six months after
the close of the corporation's most recently ended fiscal year or fifteen months
after its last annual meeting, whichever is earlier, or (ii) if the shareholder
participated in a proper call of or proper demand for a special meeting and
notice of the special meeting was not given within thirty days after the date of
the call or the date the last of the demands necessary to require calling of the
meeting was received by the corporation pursuant to C.R.S. Section 7-107-
102(1)(b), or the special meeting was not held in accordance with the notice.
Section 2. Special Meetings. Unless otherwise prescribed by statute, special
meetings of the shareholders may be called for any purpose by the president or
by the board of directors. The president shall call a special meeting of the
shareholders if the corporation receives one or more written demands for the
meeting, stating the purpose or purposes for which it is to be held,
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signed and dated by holders of shares representing at least ten percent of all
the votes entitled to be cast on any issue proposed to be considered at the
meeting.
Section 3. Place of Meeting. The board of directors may designate any place,
either within or outside Colorado, as the place for any annual meeting or any
special meeting called by the board of directors. A waiver of notice signed by
all shareholders entitled to vote at a meeting may designate any place, either
within or outside Colorado, as the place for such meeting. If no designation is
made, or if a special meeting is called other than by the board, the place of
meeting shall be the principal office of the corporation.
Section 4. Notice of Meeting. Written notice stating the place, date, and hour
of the meeting shall be given not less than ten nor more than sixty days before
the date of the meeting, except that
(i) if the number of authorized shares is to be increased, at least thirty days'
notice shall be given, or (ii) any other longer notice period is required by the
Colorado Business Corporation Act. Notice of a special meeting shall include a
description of the purpose or purposes of the meeting. Notice of an annual
meeting need not include a description of the purpose or purposes of the meeting
except the purpose or purposes shall be stated with respect to (i) an amendment
to the articles of incorporation of the corporation, (ii) a merger or share
exchange in which the corporation is a party and, with respect to a share
exchange, in which the corporation's shares will be acquired, (iii) a sale,
lease, exchange or other disposition, other than in the usual and regular course
of business, of all or substantially all of the property of the corporation or
of another entity which this corporation controls, in each case with or without
the goodwill, (iv) a dissolution of the corporation, or (v) any other purpose
for which a statement of purpose is required by the Colorado Business
Corporation Act. Notice shall be given personally or by mail, private carrier,
telegraph, teletype, electronically transmitted facsimile or other form of wire
or wireless communication by or at the direction of the president, the
secretary, or the officer or persons calling the meeting, to each shareholder of
record entitled to vote at such meeting. If mailed and if in a comprehensible
form, such notice shall be deemed to be given and effective when deposited in
the United States mail, addressed to the shareholder at his address as it
appears in the corporation's current record of shareholders, with postage
prepaid. If notice is given other than by mail, and provided that such notice is
in a comprehensible form, the notice is given and effective on the date received
by the shareholder.
If requested by the person or persons lawfully calling such meeting, the
secretary shall give notice thereof at corporation expense. No notice need be
sent to any shareholder if three successive notices mailed to the last known
address of such shareholder have been returned as undeliverable until such time
as another address for such shareholder is made known to the corporation by such
shareholder. In order to be entitled to receive notice of any meeting, a
shareholder shall advise the corporation in writing of any change in such
shareholder's mailing address as shown on the corporation's books and records.
When a meeting is adjourned to another date, time or place, notice need not be
given of the new date, time or place if the new date, time or place of such
meeting is announced before adjournment at the meeting at which the adjournment
is taken. At the adjourned meeting the corporation may transact any business
which may have been transacted at the original meeting. If the adjournment is
for more than 120 days, or if a new record date is fixed for the adjourned
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meeting, a new notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting as of the new record date.
A shareholder may waive notice of a meeting before or after the time and date of
the meeting by a writing signed by such shareholder. Such waiver shall be
delivered to the corporation for filing with the corporate records. Further, by
attending a meeting either in person or by proxy, a shareholder waives objection
to lack of notice or defective notice of the meeting unless the shareholder
objects at the beginning of the meeting to the holding of the meeting or the
transaction of business at the meeting because of lack of notice or defective
notice. By attending the meeting, the shareholder also waives any objection to
consideration at the meeting of a particular matter not within the purpose or
purposes described in the meeting notice unless the shareholder objects to
considering the matter when it is presented.
Section 5. Fixing of Record Date. For the purposes of determining shareholders
entitled to (i) notice of or vote at any meeting of shareholders or any
adjournment thereof, (ii) receive distributions or share dividends, or (ii)
demand a special meeting, or to make a determination of shareholders for any
other proper purpose, the board of directors may fix a future date as the record
date for any such determination of shareholders, such date in any case to be not
more than seventy days, and, in case of a meeting of shareholders not less than
ten days, prior to the date on which the particular action requiring such
determination of shareholders is to be taken. If no record date is fixed by the
directors, the record date shall be the date on which notice of the meeting is
mailed to shareholders, or the date on which the resolution of the board of
directors providing for a distribution is adopted, as the case may be. When a
determination of shareholders entitled to vote at any meeting of shareholders is
made as provided in this Section, such determination shall apply to any
adjournment thereof unless the board of directors fixes a new record date, which
it must do if the meeting is adjourned to a date more than 120 days after the
date fixed for the original meeting.
Notwithstanding the above, the record date for determining the shareholders
entitled to take action without a meeting or entitled to be given notice of
action so taken shall be the date a writing upon which the action is taken is
first received by the corporation. The record date for determining shareholders
entitled to demand a special meeting shall be the date of the earliest of any of
the demands pursuant to which the meeting is called.
Section 6. Voting Lists. The secretary shall make, at the earlier of ten days
before each meeting of shareholders or two business days after notice of the
meeting has been given, a complete list of the shareholders entitled to be given
notice of such meeting or any adjournment thereof. The list shall be arranged by
voting groups and within each voting group by class or series of shares, shall
be in alphabetical order within each class or series, and shall show the address
of and the number of shares of each class or series held by each shareholder.
For the period beginning the earlier of ten days prior to the meeting or two
business days after notice of the meeting is given and continuing through the
meeting and any adjournment thereof, this list shall be kept on file at the
principal office of the corporation, or at a place (which shall be identified in
the notice) in the city where the meeting will be held. Such list shall be
available for inspection on written demand by any shareholder (including for the
purpose of this Section 6 any holder of voting trust certificates) or his agent
or attorney during regular business hours and during the period available
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for inspection. The original stock transfer books shall be prima facie evidence
as to the shareholders entitled to examine such list or to vote at any meeting
of shareholders.
Any shareholder, his agent or attorney may copy the list during regular business
hours and during the period it is available for inspection, provided (i) the
shareholder has been a shareholder for at least three months immediately
preceding the demand or holds at least five percent of all outstanding shares of
any class of shares as of the date of the demand, (ii) the demand is made in
good faith and for a purpose reasonably related to the demanding shareholder's
interest as a shareholder, (iii) the shareholder describes with reasonable
particularity the purpose and the records the shareholder desires to inspect,
(iv) the records are directly connected with the described purpose and (v) the
shareholder pays a reasonable charge covering the costs of labor and material
for such copies, not to exceed the estimated cost of production and
reproduction.
Section 7. Recognition Procedure for Beneficial Owners. The board of directors
may adopt by resolution a procedure whereby a shareholder of the corporation may
certify in writing to the corporation that all or a portion of the shares
registered in the name of such shareholder are held for the account of a
specified person or persons. The resolution may set forth (i) the types of
nominees to which it applies, (ii) the rights or privileges that the corporation
will recognize in a beneficial owner, which may include rights and privileges
other than voting; (iii) the form of certification and the information to be
contained therein, (iv) if the certification is with respect to a record date,
the time within which the certification must be received by the corporation, (v)
the period for which the nominee's use of the procedure is effective, and (vi)
such other provisions with respect to the procedure as the board deems necessary
or desirable. Upon receipt by the corporation of a certificate complying with
the procedure established by the board of directors, the persons specified in
the certification shall be deemed, for the purpose or purposes set forth in the
certification, to be the registered holders of the number of shares specified in
place of the shareholder making the certification.
Section 8. Quorum and Manner of Acting. One-third of the votes entitled to be
cast on a matter by a voting group shall constitute a quorum of that voting
group for action on the matter. If less than one-third of such votes are
represented at a meeting, a majority of the votes so represented may adjourn the
meeting from time to time without further notice, for a period not to exceed 120
days for any one adjournment. If a quorum is present at such adjourned meeting,
any business may be transacted which might have been transacted at the meeting
as originally noticed. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum, unless the meeting is
adjourned and a new record date is set for the adjourned meeting.
If a quorum exists, action on a matter other than the election of directors by a
voting group is approved if the votes cast within the voting group favoring the
action exceed the votes cast within the voting group opposing the action, unless
the vote of a greater number or voting by classes is required by law or the
articles of incorporation.
Section 9. Proxies. At all meetings of shareholders, a shareholder may vote by
proxy by signing an appointment form or similar writing, either personally or by
his duly authorized attorney-in-fact. A shareholder may also appoint a proxy by
transmitting or authorizing the transmission of a
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telegram, teletype, or other electronic transmission providing a written
statement of the appointment to the proxy, a proxy solicitor, proxy support
service organization, or other person duly authorized by the proxy to receive
appointments as agent for the proxy, or to the corporation. The transmitted
appointment shall set forth or be transmitted with written evidence from which
it can be determined that the shareholder transmitted or authorized the
transmission of the appointment. The proxy appointment form or similar writing
shall be filed with the secretary of the corporation before or at the time of
the meeting. The appointment of a proxy is effective when received by the
corporation and is valid for eleven months unless a different period is
expressly provided in the appointment form or similar writing.
Any complete copy, including an electronically transmitted facsimile, of an
appointment of a proxy may be substituted for or used in lieu of the original
appointment for any purpose for which the original appointment could be used.
Revocation of a proxy does not affect the right of the corporation to accept the
proxy's authority unless (i) the corporation had notice that the appointment was
coupled with an interest and notice that such interest is extinguished is
received by the secretary or other officer or agent authorized to tabulate votes
before the proxy exercises his authority under the appointment, or (ii) other
notice of the revocation of the appointment is received by the secretary or
other officer or agent authorized to tabulate votes before the proxy exercises
his authority under the appointment. Other notice of revocation may, in the
discretion of the corporation, be deemed to include the appearance at a
shareholders' meeting of the shareholder who granted the proxy and his voting in
person on any matter subject to a vote at such meeting.
The death or incapacity of the shareholder appointing a proxy does not affect
the right of the corporation to accept the proxy's authority unless notice of
the death or incapacity is received by the secretary or other officer or agent
authorized to tabulate votes before the proxy exercises his authority under the
appointment.
The corporation shall not be required to recognize an appointment made
irrevocable if it has received a writing revoking the appointment signed by the
shareholder (including a shareholder who is a successor to the shareholder who
granted the proxy) either personally or by his attorney-in-fact, notwithstanding
that the revocation may be a breach of an obligation of the shareholder to
another person not to revoke the appointment.
Subject to Section 11 and any express limitation on the proxy's authority
appearing on the appointment form, the corporation is entitled to accept the
proxy's vote or other action as that of the shareholder making the appointment.
Section 10. Voting of Shares. Each outstanding share, regardless of class, shall
be entitled to one vote, except in the election of directors, and each
fractional share shall be entitled to a corresponding fractional vote on each
matter submitted to a vote at a meeting of shareholders, except to the extent
that the voting rights of the shares of any class or classes are limited or
denied by the articles of incorporation as permitted by the Colorado Business
Corporation Act. Cumulative voting shall not be permitted in the election of
directors or for any other purpose. Each record holder of stock shall be
entitled to vote in the election of directors and shall have as many votes for
each of the shares owned by him as there are directors to be elected and for
whose election he has the right to vote.
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At each election of directors, that number of candidates equaling the number of
directors to be elected, having the highest number of votes cast in favor of
their election, shall be elected to the board of directors.
Except as otherwise ordered by a court of competent jurisdiction upon a finding
that the purpose of this Section would not be violated in the circumstances
presented to the court, the shares of the corporation are not entitled to be
voted if they are owned, directly or indirectly, by a second corporation,
domestic or foreign, and the first corporation owns, directly or indirectly, a
majority of the shares entitled to vote for directors of the second corporation
except to the extent the second corporation holds the shares in a fiduciary
capacity.
Redeemable shares are not entitled to be voted after notice of redemption is
mailed to the holders and a sum sufficient to redeem the shares has been
deposited with a bank, trust company or other financial institution under an
irrevocable obligation to pay the holders the redemption price on surrender of
the shares.
Section 11. Corporation's Acceptance of Votes. If the name signed on a vote,
consent, waiver, proxy appointment, or proxy appointment revocation corresponds
to the name of a shareholder, the corporation, if acting in good faith, is
entitled to accept the vote, consent, waiver, proxy appointment or proxy
appointment revocation and give it effect as the act of the shareholder. If the
name signed on a vote, consent, waiver, proxy appointment or proxy appointment
revocation does not correspond to the name of a shareholder, the corporation, if
acting in good faith, is nevertheless entitled to accept the vote, consent,
waiver, proxy appointment or proxy appointment revocation and to give it effect
as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports to be that of an
officer or agent of the entity;
(ii) the name signed purports to be that of an administrator, executor, guardian
or conservator representing the shareholder and, if the corporation requests,
evidence of fiduciary status acceptable to the corporation has been presented
with respect to the vote, consent, waiver, proxy appointment or proxy
appointment revocation;
(iii) the name signed purports to be that of a receiver or trustee in bankruptcy
of the shareholder and, if the corporation requests, evidence of this status
acceptable to the corporation has been presented with respect to the vote,
consent, waiver, proxy appointment or proxy appointment revocation;
(iv) the name signed purports to be that of a pledgee, beneficial owner or
attorney-in-fact of the shareholder and, if the corporation requests, evidence
acceptable to the corporation of the signatory's authority to sign for the
shareholder has been presented with respect to the vote, consent, waiver, proxy
appointment or proxy appointment revocation;
(v) two or more persons are the shareholder as co-tenants or fiduciaries and the
name signed purports to be the name of at least one of the co-tenants or
fiduciaries, and the person signing appears to be acting on behalf of all the
co-tenants or fiduciaries; or
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(vi) the acceptance of the vote, consent, waiver, proxy appointment or proxy
appointment revocation is otherwise proper under rules established by the
corporation that are not inconsistent with this Section 11.
The corporation is entitled to reject a vote, consent, waiver, proxy appointment
or proxy appointment revocation if the secretary or other officer or agent
authorized to tabulate votes, acting in good faith, has reasonable basis for
doubt about the validity of the signature on it or about the signatory's
authority to sign for the shareholder.
Neither the corporation nor its officers nor any agent who accepts or rejects a
vote, consent, waiver, proxy appointment or proxy appointment revocation in good
faith and in accordance with the standards of this Section is liable in damages
for the consequences of the acceptance or rejection.
Section 12. Informal Action by Shareholders. Any action required or permitted to
be taken at a meeting of the shareholders may be taken without a meeting if a
written consent (or counterparts thereof) that sets forth the action so taken is
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof and received by the corporation. Such consent shall have the same
force and effect as a unanimous vote of the shareholders and may be stated as
such in the document. Action taken under this Section 12 is effective as of the
date the last writing necessary to effect this action is received by the
corporation, unless all of the writings specify a different effective date, in
which case such specified date shall be the effective date for such action. If
any shareholder revokes his consent as provided for herein prior to what would
otherwise be the effective date, the action proposed in the consent shall be
invalid. The record date for determining shareholders entitled to take action
without a meeting is the date the corporation receives a writing upon which the
action is taken.
Any shareholder who has signed a writing describing and consenting to action
taken pursuant to this Section 12 may revoke such consent by a writing signed by
the shareholder describing the action and stating that the shareholder's prior
consent thereto is revoked, if such writing is received by the corporation
before the effectiveness of the action.
Section 13. Meetings by Telecommunication. Any or all of the shareholders may
participate in an annual or special shareholders' meeting by, or the meeting may
be conducted through the use of, any means of communication by which all persons
participating in the meeting may hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. All corporate powers shall be exercised by or under
the authority of, and the business and affairs of the corporation shall be
managed under the direction of its board
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of directors, except as otherwise provided in the Colorado Business Corporation
Act or the articles of incorporation.
Section 2. Number, Qualifications and Tenure. The number of directors of the
corporation shall be fixed from time to time by the board of directors, within a
range of no less than two or more than seven. A director shall be a natural
person who is eighteen years of age or older. A director need not be a resident
of Colorado or a shareholder of the corporation. Directors shall be elected at
each annual meeting of shareholders. Each director shall hold office until the
next annual meeting of shareholders following his election and thereafter until
his successor shall have been elected and qualified. Directors shall be removed
in the manner provided by the Colorado Business Corporation Act.
Section 3. Vacancies. Any director may resign at any time by giving written
notice to the corporation. Such resignation shall take effect at the time the
notice is received by the corporation unless the notice specifies a later
effective date. Unless otherwise specified in the notice of resignation, the
corporation's acceptance of such resignation shall not be necessary to make it
effective. Any vacancy on the board of directors may be filled by the
affirmative vote of a majority of the shareholders or the board of directors. If
the directors remaining in office constitute fewer than a quorum of the board,
the directors may fill the vacancy by the affirmative vote of a majority of all
the directors remaining in office. If elected by the directors, the director
shall hold office until the next annual shareholder's meeting at which directors
are elected. If elected by the shareholders, the director shall hold office for
the unexpired term of his predecessor in office; except that, if the director's
predecessor was elected by the directors to fill a vacancy, the director elected
by the shareholders shall hold office for the unexpired term of the last
predecessor elected by the shareholders.
Section 4. Regular Meetings. A regular meeting of the board of directors shall
be held without notice immediately after and at the same place as the annual
meeting of shareholders. The board of directors may provide by resolution the
time and place, either within or outside Colorado, for the holding of additional
regular meetings without other notice.
Section 5. Special Meetings. Special meetings of the board of directors may be
called by or at the request of the president or any two directors. The person or
persons authorized to call special meetings of the board of directors may fix
any place, either within or outside Colorado, as the place for holding any
special meeting of the board of directors called by them, provided that no
meeting shall be called outside the State of Colorado unless a majority of the
board of directors has so authorized.
Section 6. Notice. Notice of any special meeting shall be given at least two
days prior to the meeting by written notice either personally delivered or
mailed to each director at his business address, or by notice transmitted by
telegraph, telex, electronically transmitted facsimile or other form of wire or
wireless communication. If mailed, such notice shall be deemed to be given and
to be effective on the earlier of (i) three days after such notice is deposited
in the United States mail, properly addressed, with postage prepaid, or (ii) the
date shown on the return receipt, if mailed by registered or certified mail
return receipt requested. If notice is given by telex, electronically
transmitted facsimile or other similar form of wire or wireless communication,
such notice shall be deemed to be given and to be effective when sent, and with
respect to a
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telegram, such notice shall be deemed to be given and to be effective when the
telegram is delivered to the telegraph company. If a director has designated in
writing one or more reasonable addresses or facsimile numbers for delivery of
notice to him, notice sent by mail, telegram, telex, electronically transmitted
facsimile or other form of wire or wireless communication shall not be deemed to
have been given or to be effective unless sent to such addresses or facsimile
numbers, as the case may be.
A director may waive notice of a meeting before or after the time and date of
the meeting by a writing signed by such director. Such waiver shall be delivered
to the corporation for filing with the corporate records. Further, a director's
attendance at or participation in a meeting waives any required notice to him of
the meeting unless at the beginning of the meeting, or promptly upon his
arrival, the director objects to holding the meeting or transacting business at
the meeting because of lack of notice or defective notice and does not
thereafter vote for or assent to action taken at the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
Section 7. Quorum. A majority of the number of directors fixed by the board of
directors pursuant to Section 2 or, if no number is fixed, a majority of the
number in office immediately before the meeting begins, shall constitute a
quorum for the transaction of business at any meeting of the board of directors.
If less than such majority is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice, for a
period not to exceed sixty days at any one adjournment.
Section 8. Manner of Acting. The act of the majority of the directors present at
a meeting at which a quorum is present shall be the act of the board of
directors. No director may vote or act by proxy at any meeting of directors.
Section 9. Compensation. By resolution of the board of directors, any director
may be paid any one or more of the following:
his expenses, if any, of attendance at meetings, a fixed sum for attendance at
each meeting, a stated salary as director, or such other compensation as the
corporation and the director may reasonably agree upon. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor.
Section 10. Presumption of Assent. A director of the corporation who is present
at a meeting of the board of directors or committee of the board at which action
on any corporate matter is taken shall be presumed to have assented to the
action taken unless (i) the director objects at the beginning of the meeting, or
promptly upon his arrival, to the holding of the meeting or the transaction of
business at the meeting and does not thereafter vote for or assent to any action
taken at the meeting, (ii) the director contemporaneously requests that his
dissent or abstention as to any specific action taken be entered in the minutes
of the meeting, or (iii) the director causes written notice of his dissent or
abstention as to any specific action to be received by the presiding officer of
the meeting before its adjournment or by the corporation promptly after the
adjournment of the meeting. A director may dissent to a specific action at a
meeting, while assenting to others. The right to dissent to a specific action
taken at a meeting of the board of
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directors or a committee of the board shall not be available to a director who
voted in favor of such action.
Section 11. Committees. By resolution adopted by a majority of all the directors
in office when the action is taken, the board of directors may designate from
among its members an executive committee and one or more other committees, and
appoint one or more members of the board of directors to serve on them. To the
extent provided in the resolution, each committee shall have all the authority
of the board of directors, except that no such committee shall have the
authority to (i) authorize distributions, (ii) approve or propose to
shareholders actions or proposals required by the Colorado Business Corporation
Act to be approved by shareholders, (iii) fill vacancies on the board of
directors or any committee thereof, (iv) amend articles of incorporation, (v)
adopt, amend or repeal the bylaws, (vi) approve a plan of merger not requiring
shareholder approval, (vii) authorize or approve the reacquisition of shares
unless pursuant to a formula or method prescribed by the board of directors, or
(viii) authorize or approve the issuance or sale of shares, or contract for the
sale of shares or determine the designations and relative rights, preferences
and limitations of a class or series of shares, except that the board of
directors may authorize a committee or officer to do so within limits
specifically prescribed by the board of directors. The committee shall then have
full power within the limits set by the board of directors to adopt any final
resolution setting forth all preferences, limitations and relative rights of
such class or series and to authorize an amendment of the articles of
incorporation stating the preferences, limitations and relative rights of a
class or series for filing with the Secretary of State under the Colorado
Business Corporation Act.
Sections 4, 5, 6, 7, 8 and 12 of Article VIII, which govern meetings, notice,
waiver of notice, quorum, voting requirements and action without a meeting of
the board of directors, shall apply to committees and their members appointed
under this Section 11.
Neither the designation of any such committee, the delegation of authority to
such committee, nor any action by such committee pursuant to its authority shall
alone constitute compliance by any member of the board of directors or a member
of the committee in question with his responsibility to conform to the standards
of care set forth in Article VIII, Section 14 of these bylaws.
Section 12. Action Without a Meeting. Any action required or permitted to be
taken at a meeting of the directors or any committee designated by the board of
directors may be taken without a meeting if a written consent (or counterparts
thereof) that sets forth the action so taken is signed by all of the directors
entitled to vote with respect to the action taken. Such consent shall have the
same force and effect as a unanimous vote of the directors or committee members
and may be stated as such in any document. Unless the consent specifies a
different effective date, action taken under this
Section 12 is effective at the time the last director signs a writing describing
the action taken, unless, before such time, any director has revoked his consent
by a writing signed by the director and received by the president or secretary
of the corporation.
Section 13. Telephonic Meetings. The board of directors may permit any director
(or any member of a committee designated by the board) to participate in a
regular or special meeting of the board of directors or a committee thereof
through the use of any means of communication by
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which all directors participating in the meeting can hear each other during the
meeting. A director participating in a meeting in this manner is deemed to be
present in person at the meeting.
Section 14. Standard of Care. A director shall perform his duties as a director,
including, without limitation his duties as a member of any committee of the
board, in good faith, in a manner he reasonably believes to be in the best
interests of the corporation, and with the care an ordinarily prudent person in
a like position would exercise under similar circumstances. In performing his
duties, a director shall be entitled to rely on information, opinions, reports
or statements, including financial statements and other financial data, in each
case prepared or presented by the persons herein designated. However, he shall
not be considered to be acting in good faith if he has knowledge concerning the
matter in question that would cause such reliance to be unwarranted. A director
shall not be liable to the corporation or its shareholders for any action he
takes or omits to take as a director if, in connection with such action or
omission, he performs his duties in compliance with this Section 14.
The designated persons on whom a director is entitled to rely are (i) one or
more officers or employees of the corporation whom the director reasonably
believes to be reliable and competent in the matters presented, (ii) legal
counsel, public accountant, or other person as to matters which the director
reasonably believes to be within such person's professional or expert
competence, or (iii) a committee of the board of directors on which the director
does not serve if the director reasonably believes the committee merits
confidence.
ARTICLE IV
OFFICERS AND AGENTS
Section 1. General. The officers of the corporation shall be a president, a
secretary, a treasurer, and/or such other officers as may be appointed from time
to time by the board of directors, each of whom shall be a natural person
eighteen years of age or older. The board of directors or an officer or officers
authorized by the board may appoint such other officers, assistant officers,
committees and agents, including a chairman of the board, assistant secretaries
and assistant treasurers, as they may consider necessary. The board of directors
or the officer or officers authorized by the board shall from time to time
determine the procedure for the appointment of officers, their term of office,
their authority and duties and their compensation. One person may hold more than
one office. In all cases where the duties of any officer, agent or employee are
not prescribed by the bylaws, or by the board of directors, such officer, agent
or employee shall follow the orders and instructions of the president of the
corporation.
Section 2. Appointment and Term of Office. The officers of the corporation shall
be appointed by the board of directors at each annual meeting of the board held
after each annual meeting of the shareholders. If the appointment of officers is
not made at such meeting or if an officer or officers are to be appointed by
another officer or officers of the corporation, such appointment shall be made
as soon thereafter as conveniently may be. Each officer shall hold office until
the first of the following occurs: his successor shall have been duly appointed
and qualified, his death, his resignation, or his removal in the manner provided
in Section 3.
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Section 3. Resignation and Removal. An officer may resign at any time by giving
written notice of resignation to the corporation. The resignation is effective
when the notice is received by the corporation unless the notice specifies a
later effective date.
Any officer or agent may be removed at any time with or without cause by the
board of directors or an officer or officers authorized by the board. Such
removal does not affect the contract rights, if any, of the corporation or of
the person so removed. The appointment of an officer or agent shall not in
itself create contract rights.
Section 4. Vacancies. A vacancy in any office, however occurring, may be filled
by the board of directors, or by the officer or officers authorized by the
board, for the unexpired portion of the officer's term. If an officer resigns
and his resignation is made effective at a later date, the board of directors,
or officer or officers authorized by the board, may permit the officer to remain
in office until the effective date and may fill the pending vacancy before the
effective date if the board of directors or officer or officers authorized by
the board provide that the successor shall not take office until the effective
date. In the alternative, the board of directors, or officer or officers
authorized by the board of directors, may remove the officer at any time before
the effective date and may fill the resulting vacancy.
Section 5. President. Subject to the direction and supervision of the board of
directors, the president shall be the chief executive officer of the
corporation, and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. Unless
otherwise directed by the board of directors, the president shall attend in
person or by substitute appointed by him, or shall execute on behalf of the
corporation written instruments appointing a proxy or proxies to represent the
corporation, at all meetings of the stockholders of any other corporation in
which the corporation holds any stock. On behalf of the corporation, the
president may in person or by substitute or by proxy execute written waivers of
notice and consents with respect to any such meetings. At all such meetings and
otherwise, the president, in person or by substitute or proxy, may vote the
stock held by the corporation, execute written consents and other instruments
with respect to such stock, and exercise any and all rights and powers incident
to the ownership or said stock, subject to the instructions, if any, of the
board of directors. The president shall have custody of the treasurer's bond, if
any.
Section 6. Vice Presidents. The vice presidents, if any, shall assist the
president and shall perform such duties as may be assigned to them by the
president or by the board of directors. In the absence of the president, the
vice president, if any (or, if more than one, the vice presidents in the order
designated by the board of directors, or if the board makes no such designation,
then the vice president designated by the president, or if neither the board nor
the president makes any such designation, the senior vice president as
determined by first election to that office), shall have the powers and perform
the duties of the president.
Section 7. Secretary. The secretary shall (i) prepare and maintain as permanent
records the minutes of the proceedings of the shareholders and the board of
directors, a record of all actions taken by the shareholders or board of
directors without a meeting, a record of all actions taken by a committee of the
board of directors in place of the board of directors on behalf of the
corporation, and a record of all waivers of notice of meetings of shareholders
and of the board of directors or any committee thereof, (ii) see that all
notices are duly given in accordance with the
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provisions of these bylaws and as required by law, (iii) serve as custodian of
the corporate records and of the seal of the corporation and affix the seal to
all documents when authorized by the board of directors, (iv) keep at the
corporation's registered office or principal place of business a record
containing the names and addresses of all shareholders in a form that permits
preparation of a list of shareholders arranged by voting group and by class or
series of shares within each group, that is alphabetical within each class or
series and that shows the address of, and the number of shares of each class or
series held by each shareholder, unless such a record shall be kept at the
office of the corporation's transfer agent or registrar, (v) maintain at the
corporation's principal office the originals or copies of the corporation's
articles of incorporation, bylaws, minutes of all shareholders' meetings and
records of all action taken by shareholders without a meeting for the past three
years, all written communications within the past three years to shareholders as
a group or to the holders of any class or series of shares as a group, a list of
the name and business addresses of the current directors and officers, a copy of
the corporation's most recent corporate report filed with the Secretary of
State, and financial statements showing in reasonable detail the corporation's
assets and liabilities and results of operations for the last three years, (vi)
have general charge of the stock transfer books of the corporation, unless the
corporation has a transfer agent, (vii) authenticate records of the corporation,
and (vii) in general, perform all duties incident to the office of secretary and
such other duties as from time to time may be assigned to him by the president
or by the board of directors. Assistant secretaries, if any, shall have the same
duties and powers subject to supervision by the secretary. The directors and/or
shareholders may however respectively designate a person other than the
secretary or assistant secretary to keep the minutes of their respective
meetings.
Any books, records, or minutes of the corporation may be in written form or in
any form capable of being converted into written form within a reasonable time.
Section 8. Treasurer. The treasurer shall be the principal financial officer of
the corporation, shall have the care and custody of all funds, securities,
evidences of indebtedness and other personal property of the corporation and
shall deposit the same in accordance with the instructions of the board of
directors. He shall receive and give receipts and acquittances for money paid in
on account of the corporation, and shall pay out of the corporation's funds on
hand all bills, payrolls and other just debts of the corporation of whatever
nature upon maturity. He shall perform all other duties incident to the office
of the treasurer and, upon request of the board, shall make such reports to it
as may be required at any time. He shall, if required by the board, give the
corporation a bond in such sums and with such sureties as shall be satisfactory
to the board, conditioned upon the faithful performance of his duties and for
the restoration to the corporation of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the corporation. He shall have such other powers and perform such other
duties as may from time to time be prescribed by the board of directors or the
president. The assistant treasurers, if any, shall have the same powers and
duties, subject to the supervision of the treasurer.
The treasurer shall also be the principal accounting officer of the corporation.
He shall prescribe and maintain the methods and systems of accounting to be
followed, keep complete books and records of account as required by the Colorado
Business Corporation Act, prepare and file all local, state and federal tax
returns, prescribe and maintain an adequate system of internal audit
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and prepare and furnish to the president and the board of directors statements
of account showing the financial position of the corporation and the results of
its operations.
ARTICLE V
STOCK
Section 1. Certificates. The board of directors shall be authorized to issue any
of its classes of shares with or without certificates. The fact that the shares
are not represented by certificates shall have no effect on the rights and
obligations of shareholders. If the shares are represented by certificates, such
shares shall be represented by consecutively numbered certificates signed,
either manually or by facsimile, in the name of the corporation by one or more
persons designated by the board of directors. In case any officer who has signed
or whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, such certificate
may nonetheless be issued by the corporation with the same effect as if he were
such officer at the date of its issue. Certificates of stock shall be in such
form and shall contain such information consistent with law as shall be
prescribed by the board of directors. If shares are not represented by
certificates, within a reasonable time following the issue or transfer of such
shares, the corporation shall send the shareholder a complete written statement
of all of the information required to be provided to holders of uncertificated
shares by the Colorado Business Corporation Act.
Section 2. Consideration for Shares. Certificated or uncertificated shares shall
not be issued until the shares represented thereby are fully paid. The board of
directors may authorize the issuance of shares for consideration consisting of
any tangible or intangible property or benefit to the corporation, including
cash, promissory notes, services performed or other securities of the
corporation. Future services shall not constitute payment or partial payment for
shares of the corporation. The promissory note of a subscriber or an affiliate
of a subscriber shall not constitute payment or partial payment for shares of
the corporation unless the note is negotiable and is secured by collateral,
other than the shares being purchased, having a fair market value at least equal
to the principal amount of the note. For purposes of this Section 2, "promissory
note" means a negotiable instrument on which there is an obligation to pay
independent of collateral and does not include a non-recourse note.
Section 3. Lost Certificates. In case of the alleged loss, destruction or
mutilation of a certificate of stock, the board of directors may direct the
issuance of a new certificate in lieu thereof upon such terms and conditions in
conformity with law as the board may prescribe. The board of directors may in
its discretion require an affidavit of lost certificate and/or a bond in such
form and amount and with such surety as it may determine before issuing a new
certificate.
Section 4. Transfer of Shares. Upon surrender to the corporation or to a
transfer agent of the corporation of a certificate of stock duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and receipt of such documentary stamps as may be required by law and
evidence of compliance with all applicable securities laws and other
restrictions, the corporation shall issue a new certificate to the person
entitled thereto, and cancel the old certificate. Every such transfer of stock
shall be entered on the stock books of the corporation which shall be kept at
its principal office or by the person and at the place designated by the board
of directors.
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Except as otherwise expressly provided in Article VIII, Sections 7 and 11, and
except for the assertion of dissenters' rights to the extent provided in Article
113 of the Colorado Business Corporation Act, the corporation shall be entitled
to treat the registered holder of any shares of the corporation as the owner
thereof for all purposes, and the corporation shall not be bound to recognize
any equitable or other claim to, or interest in, such shares or rights deriving
from such shares on the part of any person other than the registered holder,
including without limitation any purchaser, assignee or transferee of such
shares or rights deriving from such shares, unless and until such other person
becomes the registered holder of such shares, whether or not the corporation
shall have either actual or constructive notice of the claimed interest of such
other person.
Section 5. Transfer Agent, Registrars and Paying Agents. The board may at its
discretion appoint one or more transfer agents, registrars and agents for making
payment upon any class of stock, bond, debenture or other security of the
corporation. Such agents and registrars may be located either within or outside
Colorado. They shall have such rights and duties and shall be entitled to such
compensation as may be agreed.
ARTICLE VI
INDEMNIFICATION OF CERTAIN PERSONS
Section 1. Indemnification. For purposes of Article VIII, a "Proper Person"
means any person who was or is a party or is threatened to be made a party to
any threatened, pending, or complete action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, by
reason of the fact that he is or was a director, officer, employee, fiduciary or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, fiduciary or agent of any
foreign or domestic profit or nonprofit corporation or of any partnership, joint
venture, trust, profit or nonprofit unincorporated association, limited
liability company, or other enterprise or employee benefit plan. The corporation
shall indemnify any Proper Person against reasonably incurred expenses
(including any attorneys' fees), judgments, penalties, fines (including any
excise tax assessed with respect to an employee benefit plan) and amounts paid
in settlement reasonably incurred by him in connection with such action, suit or
proceeding if it is determined by the groups set forth in Section 4 of this
Article that he conducted himself in good faith and that he reasonably believed
(i) in the case of conduct in his official capacity with the corporation, that
his conduct was in the corporation's best interests, or (ii) in all other cases
(except criminal cases), that his conduct was at least not opposed to the
corporation's best interests, or
(iii) in the case of any criminal proceeding, that he had no reasonable cause to
believe his conduct was unlawful. A Proper Person will be deemed to be acting in
his official capacity while acting as a director, officer, employee or agent on
behalf of this corporation and not while acting on this corporation's behalf for
some other entity.
No indemnification shall be made under this Article VI to a Proper Person with
respect to any claim, issue or matter in connection with a proceeding by or in
the right of a corporation in which the Proper Person was adjudged liable to the
corporation or in connection with any proceeding charging that the Proper Person
derived an improper personal benefit, whether or not involving action in an
official capacity, in which he was adjudged liable on the basis that he derived
an improper personal benefit. Further, indemnification under this Section in
connection
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with a proceeding brought by or in the right of the corporation shall be limited
to reasonable expenses, including attorneys' fees, incurred in connection with
the proceeding.
Section 2. Right to Indemnification. The corporation shall indemnify any Proper
Person who was wholly successful, on the merits or otherwise, in defense of any
action, suit, or proceeding as to which he was entitled to indemnification under
Section 1 of this Article VI against expenses (including attorneys' fees)
reasonably incurred by him in connection with the proceeding without the
necessity of any action by the corporation other than the determination in good
faith that the defense has been wholly successful.
Section 3. Effect of Termination of Action. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not of itself create a presumption that
the person seeking indemnification did not meet the standards of conduct
described in
Section 1 of this Article VI. Entry of a judgment by consent as part of a
settlement shall not be deemed an adjudication of liability, as described in
Section 2 of this Article VI.
Section 4. Groups Authorized to Make Indemnification Determination. Except where
there is a right to indemnification as set forth in Sections 1 or 2 of this
Article or where indemnification is ordered by a court in Section 5, any
indemnification shall be made by the corporation only as authorized in the
specific case upon a determination by a proper group that indemnification of the
Proper Person is permissible under the circumstances because he has met the
applicable standards of conduct set forth in Section 1 of this Article. This
determination shall be made by the board of directors by a majority vote of
those present at a meeting at which a quorum is present, which quorum shall
consist of directors not parties to the proceeding ("Quorum"). If a Quorum
cannot be obtained, the determination shall be made by a majority vote of a
committee of the board of directors designated by the board, which committee
shall consist of two or more directors not parties to the proceeding, except
that directors who are parties to the proceeding may participate in the
designation of directors for the committee. If a Quorum of the board of
directors cannot be obtained and the committee cannot be established, or even if
a Quorum is obtained or the committee is designated and a majority of the
directors constituting such Quorum or committee so directs, the determination
shall be made by (i) independent legal counsel selected by a vote of the board
of directors or the committee in the manner specified in this Section 4, or, if
a Quorum of the full board of directors cannot be obtained and a committee
cannot be established, by independent legal counsel selected by a majority vote
of the full board (including directors who are parties to the action) or (ii) a
vote of the shareholders.
Section 5. Court-Ordered Indemnification. Any Proper Person may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction for mandatory indemnification under Section 2 of this
Article, including indemnification for reasonable expenses incurred to obtain
court-ordered indemnification. If the court determines that such Proper Person
is fairly and reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not he met the standards of conduct set forth in
Section 1 of this Article or was adjudged liable in the proceeding, the court
may order such indemnification as the court deems proper except that if the
Proper Person has been adjudged liable, indemnification shall be limited to
reasonable expenses incurred in connection with the proceeding and reasonable
expenses incurred to obtain court-ordered indemnification.
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Section 6. Advance of Expenses. Reasonable expenses (including attorneys' fees)
incurred in defending an action, suit or proceeding as described in Section 1
may be paid by the corporation to any Proper Person in advance of the final
disposition of such action, suit or proceeding upon receipt of (i) a written
affirmation of such Proper Person's good faith belief that he has met the
standards of conduct prescribed by Section 1 of this Article VIII, (ii) a
written undertaking, executed personally or on the Proper Person's behalf, to
repay such advances if it is ultimately determined that he did not meet the
prescribed standards of conduct (the undertaking shall be an unlimited general
obligation of the Proper Person but need not be secured and may be accepted
without reference to financial ability to make repayment), and (iii) a
determination is made by the proper group (as described in Section 3 of this
Article VI) that the facts as then known to the group would not preclude
indemnification. Determination and authorization of payments shall be made in
the same manner specified in Section 4 of this Article VI.
Section 7. Witness Expenses. The sections of this Article VI do not limit the
corporation's authority to pay or reimburse expenses incurred by a director in
connection with an appearance as a witness in a proceeding at a time when he has
not been a named defendant or respondent in the proceeding.
Section 8. Report to Shareholders. Any indemnification of or advance of expenses
to a director in accordance with this Article VIII, if arising out of a
proceeding by or on behalf of the corporation, shall be reported in writing to
the shareholders with or before the notice of the next shareholders' meeting. If
the next shareholder action is taken without a meeting at the instigation of the
board of directors, such notice shall be given to the shareholders at or before
the time the first shareholder signs a writing consenting to such action.
ARTICLE VII
PROVISION OF INSURANCE
By action of the board of directors, notwithstanding any interest of the
directors in the action, the corporation may purchase and maintain insurance, in
such scope and amounts as the board of directors deems appropriate on behalf of
any person who is or was a director, officer, employee, fiduciary or agent of
the corporation, or who, while a director, officer, employee, fiduciary or agent
of the corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, fiduciary or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
profit or nonprofit unincorporated association, limited liability company or
other enterprise or employee benefit plan, against any liability asserted
against, or incurred by, him in that capacity arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of Article VI or applicable law. Any such
insurance may be procured from any insurance company designated by the board of
directors of the corporation, whether such insurance company is formed under the
laws of Colorado or any other jurisdiction of the United States or elsewhere,
including any insurance company in which the corporation has an equity interest
or any other interest, through stock ownership or otherwise.
ARTICLE VIII
MISCELLANEOUS
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Section 1. Seal. The corporate seal of the corporation shall be circular in form
and shall contain the name of the corporation and the words, "Seal, Colorado."
Section 2. Fiscal Year. The fiscal year of the corporation shall be as
established by the board of directors.
Section 3. Amendments. The board of directors shall have power, to the maximum
extent permitted by the Colorado Business Corporation Act, to make, amend and
repeal the bylaws of the corporation at any regular or special meeting of the
board unless the shareholders, in making, amending or repealing a particular
bylaw, expressly provide that the directors may not amend or repeal such bylaw.
The shareholders also shall have the power to make, amend or repeal the bylaws
of the corporation at any annual meeting or at any special meeting called for
that purpose.
Section 4. Gender. The masculine gender is used in these bylaws as a matter of
convenience only and shall be interpreted to include the feminine and neuter
genders as the circumstances indicate.
Section 5. Conflicts. In the event of any irreconcilable conflict between these
bylaws and either the corporation's articles of incorporation or applicable law,
the latter shall control.
Section 6. Definitions. Except as otherwise specifically provided in these
bylaws, all terms used in these bylaws shall have the same definition as in the
Colorado Business Corporation Act.
THE FOREGOING BYLAWS, consisting of thirteen (13) pages, including this page,
constitute the bylaws of Worldwide Energy & Manufacturing USA, Inc., adopted by
the board of directors of the corporation as of January 26, 2010.
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