RESTATED BYLAWS
OF
LEO MOTORS, INC.
a Delaware corporation
ARTICLE I
OFFICES 1
Section 1. Principal Office 1
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Section 2. Other Offices 1
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ARTICLE II
DIRECTORS - MANAGEMENT 1
Section 1. Powers, Standard of Care 1
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Section 2. Number and Qualification of Directors 2
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Section 3. Election and Term of Office of Directors 2
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Section 4. Vacancies 2
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Section 5. Removal of Directors 3
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Section 6. Place of Meetings 4
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Section 7. Annual Meetings 4
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Section 8. Other Regular Meetings 4
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Section 9. Special Meetings/Notices 4
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Section 10. Waiver of Notice 5
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Section 11. Quorums 5
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Section 12. Adjournment 5
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Section 13. Notice of Adjournment 5
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Section 14. Board of Directors Provided by Articles or Bylaws 5
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Section 15. Directors Action by Unanimous Written Consent 5
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Section 16. Compensation of Directors 6
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Section 17. Committees 6
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Section 18. Meetings and Action of Committees 6
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Section 19. Advisory Directors 6
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ARTICLE III
OFFICERS 7
Section 1. Officers 7
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Section 2. Election of Officers 7
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Section 3. Subordinate Officers, Etc. 7
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Section 4. Removal and Resignation of Officers 7
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Section 5. Vacancies 7
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Section 6. Chairman of the Board 8
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Section 7. President and Chief Executive Officer 8
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Section 8. Vice President 8
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Section 9. Secretary 8
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Section 10. Chief Financial Officer or Treasurer. 9
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ARTICLE IV
SHAREHOLDERS' MEETINGS 9
Section 1. Place of Meetings 9
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Section 2. Annual Meeting 9
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Section 3. Special Meetings 10
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Section 4. Notice of Meetings - Reports 10
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Section 5. Quorum 11
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Section 6. Adjourned Meeting and Notice Thereof 11
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Section 7. Waiver or Consent by Absent Shareholders 12
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Section 8. Maintenance and Inspection of Bylaws 12
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Section 9. Annual Report to Shareholders 13
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Section 10. Financial Statements 13
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Section 11. Annual Statement of General Information 15
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ARTICLE IX
AMENDMENTS TO BYLAWS 15
Section 1. Amendment by Shareholders 15
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Section 2. Amendment by Directors 15
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Section 3. Record of Amendments 15
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ARTICLE X
MISCELLANEOUS 15
Section 1. Shareholders' Agreements 15
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Section 2. Effect of Shareholders' Agreements 15
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Section 3. Subsidiary Corporations 16
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Section 4. Accounting Year 16
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Section 5. Form 16
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15
RESTATED BYLAWS
OF
LEO MOTORS, INC.
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office for the transaction
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of business of the Corporation is hereby fixed and located at 13-1004
Doksandong, GumchunGu, Seoul, Republic of Korea. The location may be changed by
the Board of Directors in their discretion, and additional offices may be
established and maintained at such other place or places, either within or
outside of Delaware, as the Board of Directors may from time to time designate.
Section 2. Other Offices. Branch or subordinate offices may at any
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time be established by the Board of Directors at any place or places where the
Corporation is qualified to do business.
ARTICLE II
DIRECTORS - MANAGEMENT
Section 1. Powers, Standard of Care.
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A. Powers: Subject to the provisions of the Delaware Corporations Code
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(hereinafter the "Act"), and subject to any limitations in the Articles of
Incorporation of the Corporation relating to action required to be approved by
the Shareholders, or by the outstanding shares, the business and affairs of the
Corporation shall be managed and all corporate powers shall be exercised by or
under the direction of the Board of Directors. The Board of Directors may
delegate the management of the day-to-day operation of the business of the
Corporation to a management company or other persons, provided that the business
and affairs of the Corporation shall be managed, and all corporate powers shall
be exercised, under the ultimate direction of the Board.
B. Standard of Care; Liability:
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(i) Each Director shall exercise such powers and otherwise perform such
duties, in good faith, in the matters such Director believes to be in the best
interests of the Corporation, and with such care, including reasonable inquiry,
using ordinary prudence, as a person in a like position would use under similar
circumstances.
(ii) In performing the duties of a Director, a Director shall be
entitled to rely on information, opinions, reports, or statements, including
financial statements and other financial data, in which case prepared or
presented by:
(a) One or more officers or employees of the Corporation whom the
Director believes to be reliable and competent in the matters presented,
(b) Counsel, independent accountants or other persons as to which the
Director believes to be within such person's professional or expert competence,
or
(c) A Committee of the Board upon which the Director does not serve, as
to matters within its designated authority, which committee the Director
believes to merit confidence, so long as in any such case the Director acts in
good faith, after reasonable inquiry when the need therefor is indicated by the
circumstances and without knowledge that would cause such reliance to be
unwarranted.
C. Exception for Close Corporation. Notwithstanding the provisions of
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Section 1 of this Article, in the event that the Corporation shall elect to
become a close corporation, its Shareholders may enter into a Shareholders'
Agreement. Said Agreement may provide for the exercise of corporate powers and
the management of the business and affairs of the Corporation by the
Shareholders; provided, however, such agreement shall, to the extent and so long
as the discretion or powers of the Board of Directors in its management of
corporate affairs is controlled by such agreement, impose upon each Shareholder
who is a party hereof, liability for managerial acts performed or omitted by
such person pursuant thereto otherwise imposed upon Directors; and the Directors
shall be relieved to that extent from such liability.
Section 2. Number and Qualification of Directors. The authorized
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number of Directors of the Corporation shall be at least one (1) but not more
than seven (7) until changed by a duly adopted amendment to the Articles of
Incorporation or by an amendment to this Section 2 of Article II of these
Bylaws, adopted by the vote or written consent of Shareholders entitled to
exercise majority voting power as provided in the Act.
Section 3. Election and Term of Office of Directors. Directors shall
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be elected at each annual meeting of the Shareholders to hold office until the
next annual meeting. Each Director, including a Director elected to fill a
vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
Section 4. Vacancies.
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A. Vacancies on the Board of Directors may be filled by a majority of
the re-maining Directors, though less than a quorum, or by a sole remaining
Director, except that a vacancy
created by the removal of a Director by the vote or written consent of the
Shareholders, or by a court order, may be filled only by the vote of a majority
of the shares entitled to vote, represented at a duly held meeting at which a
quorum is present, or by the written consent of holders of the majority of the
outstanding shares entitled to vote. Each Director so elected shall hold office
until the next annual meeting of the Shareholders and until a successor has been
elected and qualified.
B. A vacancy or vacancies on the Board of Directors shall be deemed to
exist in the event of the death, resignation or removal of any Director, or if
the Board of Directors by resolution declares vacant the office of a Director
who has been declared of unsound mind by an order of court or convicted of a
felony.
C. The Shareholders may elect a Director or Directors at any time to
fill any vacancy or vacancies not filled by the Directors, but any such election
by written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
D. Any Director may resign, effective on giving written notice to the
Chairman of the Board, the President, the Secretary, or the Board of Directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a Director is effective at a future time, the
Board of Directors may, prior to the effective date of a Director's resignation,
elect a successor to take office when the resignation becomes effective.
E. No reduction of the authorized number of Directors shall have the
effect of removing any Director before that Director's term of office expires.
Section 5. Removal of Directors.
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A. The entire Board of Directors, or any individual Director, may be
removed from office as provided by the Act. In such case, the remaining
members, if any, of the Board of Directors may elect a successor Director to
fill such vacancy for the remaining unexpired term of the Director so removed.
B. No Director may be removed (unless the entire Board is removed) when
the votes cast against removal or not consenting in writing to such removal
would be sufficient to elect such Director if voted cumulatively at an election
at which the same total number of votes were cast (or, if such action is taken
by written consent, all shares entitled to vote, were voted) and the entire
num-ber of Directors authorized at the time of the Directors most recent
election were then being elected; and when by the provisions of the Articles of
Incorporation the holders of the shares of any class or series voting as a
class or series are entitled to elect one or more Directors, any Director so
elected may be removed only by the applicable vote of the holders of the shares
of that class or series.
Section 6. Place of Meetings. Regular meetings of the Board of
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Directors shall be held at any place within or outside the state that has been
designated from time to time by resolution of the Board. In the absence of such
resolution, regular meetings shall be held at the principal executive office of
the Corporation. Special meetings of the Board shall be held at any place
within or outside the state that has been designated in the notice of the
meeting, or, if not stated in the notice or there is no notice, at the principal
executive office of the Corporation. Any meeting, regular or special, may be
held by conference telephone or similar communication equipment, so long as all
Directors participating in such meeting can hear one another, and all such
Directors shall be deemed to have been present in person at such meeting.
Section 7. Annual Meetings. Immediately following each annual meeting
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of Shareholders, the Board of Directors shall hold a regular meeting for the
purpose of organization, the election of officers and the transaction of other
business. Notice of this meeting shall not be required. Minutes of any meeting
of the Board, or any committee thereof, shall be maintained as required by the
Act by the Secretary or other officer designated for that purpose.
Section 8. Other Regular Meetings.
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A. Other regular meetings of the Board of Directors shall be held
without call at such time as shall from time to time be fixed by the Board of
Directors. Such regular meetings may be held without notice, provided the time
and place of such meetings has been fixed by the Board of Directors, and further
provided the notice of any change in the time of such meeting shall be given to
all the Directors. Notice of a change in the determination of the time shall be
given to each Director in the same manner as notice for such special meetings of
the Board of Directors.
B. If said day falls upon a holiday, such meetings shall be held on the
next succeeding day thereafter.
Section 9. Special Meetings/Notices.
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A. Special meetings of the Board of Directors for any purpose or
purposes may be called at any time by the Chairman of the Board or the President
or any Vice President or the Secretary or any two Directors.
B. Notice of the time and place for special meetings shall be delivered
personally or by telephone to each Director or sent by first class mail or
telegram, charges prepaid, addressed to each Director at his or her address as
it is shown in the records of the Corporation. In case such notice is mailed,
it shall be deposited in the United States mail at least four days prior to the
time of holding the meeting. In case such notice is delivered personally, or by
telephone or telegram, it shall be delivered personally or be telephone or to
the telegram company at least 48 hours prior to the time of the holding of the
meeting. Any oral notice given personally or by telephone may be communicated
to either the Director or to a person at the office of the Director who the
person giving
the notice has reason to believe will promptly communicate same to the Director.
The notice need not specify the purpose of the meeting, nor the place, if the
meeting is to be held at the principal executive office of the Corporation.
Section 10. Waiver of Notice.
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A. The transactions of any meeting of the Board of Directors, however
called, noticed, or wherever held, shall be as valid as though had at a meeting
duly held after the regular call and notice if a quorum be present and if,
either before or after the meeting, each of the Directors not present signs a
written waiver of notice, a consent to holding the meeting or an approval of the
minutes thereof. Waivers of notice or consent need not specify the purposes of
the meeting. All such waivers, consents and approvals shall be filed with the
corporate records or made part of the minutes of the meeting.
B. Notice of a meeting shall also be deemed given to any Director who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice to such Director.
Section 11. Quorums. A majority of the authorized number of Directors
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shall constitute a quorum for the transaction of business, except to adjourn as
provided in Section 12 of this Article II. Every act or decision done or made
by a majority of the Directors present at a meeting duly held at which a quorum
was present shall be regarded as the act of the Board of Directors, subject to
the provisions of the Act. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of Directors, if
any action taken is approved by at least a majority of the required quorum for
that meeting.
Section 12. Adjournment. A majority of the directors present, whether
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or not constituting a quorum, may adjourn any meeting to another time and place.
Section 13. Notice of Adjournment. Notice of the time and place of the
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holding of an adjourned meeting need not be given, unless the meeting is
adjourned for more than 24 hours, in which case notice of such time and place
shall be given prior to the time of the adjourned meeting to the Directors who
were not present at the time of the adjournment.
Section 14. Board of Directors Provided by Articles or Bylaws. In the
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event only one Director is required by the Bylaws or the Articles of
Incorporation, then any reference herein to notices, waivers, consents, meetings
or other actions by a majority or quorum of the Board of Directors shall be
deemed or referred as such notice, waiver, etc., by the sole Director, who shall
have all rights and duties and shall be entitled to exercise all of the powers
and shall assume all the responsibilities otherwise herein described, as given
to the Board of Directors.
Section 15. Directors Action by Unanimous Written Consent. Any action
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required or permitted to be taken by the Board of Directors may be taken without
a meeting and with the same force and effect as if taken by a unanimous vote of
Directors, if authorized by a writing signed individually or collectively by all
members of the Board of Directors. Such consent shall be filed with the regular
minutes of the Board of Directors.
Section 16. Compensation of Directors. Directors, and members as such,
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shall not receive any stated salary for their services, but by resolution of the
Board of Directors, a fixed sum and expense of attendance, if any, may be
allowed for attendance at each regular and special meeting of the Board of
Directors; provided, however, that nothing contained herein shall be construed
to preclude any Director from serving the Corporation in any other capacity as
an officer, employee or otherwise receiving compensation for such services.
Section 17. Committees. Committees of the Board of Directors may be
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appointed by resolution passed by a majority of the whole Board. Committees
shall be composed of two or more members of the Board of Directors. The Board
may designate one or more Directors as alternate members of any committee, who
may replace any absent member at any meeting of the committee. Committees shall
have such powers as those held by the Board of Directors as may be expressly
delegated to it by resolution of the Board of Directors, except those powers
expressly made non-delegable by the Act.
Section 18. Meetings and Action of Committees. Meetings and action of
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committees shall be governed by, and held and taken in accordance with, the
provisions of Article II, Sections 6, 8, 9, 10, 11, 12, 13 and 15, with such
changes in the context of those Sections as are necessary to substitute the
committee and its members for the Board of Directors and its members, except
that the time of the regular meetings of the committees may be determined by
resolution of the Board of Directors as well as the committee, and special
meetings of committees may also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The Board of Directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
Section 19. Advisory Directors. The Board of Directors from time to
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time may elect one or more persons to be Advisory Directors, who shall not by
such appointment be members of the Board of Directors. Advisory Directors shall
be available from time to time to perform special assignments specified by the
President, to attend meetings of the Board of Directors upon invitation and to
furnish consultation to the Board of Directors. The period during which the
title shall be held may be prescribed by the Board of Directors. If no period
is prescribed, the title shall be held at the pleasure of the Board of
Directors.
ARTICLE III
OFFICERS
Section 1. Officers. The principal officers of the Corporation shall
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be a President, a Secretary, and a Chief Financial Officer who may also be
called Treasurer. The Corporation may also have, at the discretion of the Board
of Directors, a Chairman of the Board, one or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers, and such other officers
as may be appointed in accordance with the provisions of Section 3 of this
Article III. Any number of offices may be held by the same person.
Section 2. Election of Officers. The principal officers of the
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Corporation, except such officers as may be appointed in accordance with the
provisions of Section 3 or Section 5 of this Article, shall be chosen by the
Board of Directors, and each shall serve at the pleasure of the Board of
Directors, subject to the rights, if any, of an officer under any contract of
employment.
Section 3. Subordinate Officers, Etc. The Board of Directors may appoint
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such other officers as the business of the Corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as are provided in the Bylaws or as the Board of Directors may from time to time
determine.
Section 4. Removal and Resignation of Officers.
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A. Subject to the rights, if any, of an officer under any contract of
employment, any officer may be removed, either with or without cause, by a
majority of the Directors at that time in office, at any regular or special
meeting of the Board of Directors, or, except in the case of an officer chosen
by the Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors.
B. Any officer may resign at any time by giving written notice to the
Board of Directors. Any resignation shall take effect on the date of the
receipt of that notice or at any later time specified in that notice; and,
unless otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to which
the officer is a party.
Section 5. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or any other cause shall be filled in the
manner prescribed in the Bylaws for regular appointments to that office.
Section 6. Chairman of the Board.
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A. The Chairman of the Board, if such an officer be elected, shall, if
present, preside at the meetings of the Board of Directors and exercise and
perform such other powers and duties as may, from time to time, be assigned by
the Board of Directors or prescribed by the Bylaws. If there is no President,
the Chairman of the Board shall, in addition, be the Chief Executive Officer of
the Corporation and shall have the powers and duties prescribed in Section 7 of
this Article III.
Section 7. President and Chief Executive Officer. Subject to such
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supervisory powers, if any, as may be given by the Board of Directors to the
Chairman of the Board, if there is such an officer, the President along with the
Chief Executive Officer of the Corporation shall, subject to the control of the
Board of Directors, have general supervision, discretion and control of the
business and officers of the Corporation. The President or the Chief Executive
Officer shall preside at all meetings of the Shareholders and, in the absence of
the Chairman of the Board, or if there be none, at all meetings of the Board of
Directors. The President and Chief Executive Officer, jointly, shall have the
general powers and duties of management usually vested in the office of
President and Chief Executive Officer of a corporation, each shall be ex officio
a member of all the standing committees, including the Executive Committee, if
any, and shall have such other powers and duties as may be prescribed by the
Board of Directors or the Bylaws.
Section 8. Vice President. In the absence or disability of the President or
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Chief Executive Officer, the Vice Presidents, if any, in order of their rank as
fixed by the Board of Directors, or if not ranked, the Vice President designated
by the Board of Directors, shall perform all the duties of the President or
Chief Executive Officer, as the case may be, and when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the President or the
Chief Executive Officer. 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 of Directors or the Bylaws, the President, the Chief
Executive Officer, or the Chairman of the Board.
Section 9. Secretary.
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A. The Secretary shall keep, or cause to be kept, a book of minutes of
all meetings of the Board of Directors and Shareholders at the principal office
of the Corporation or such other place as the Board of Directors may order. The
minutes shall include the time and place of holding the meeting, whether regular
or special, and if a special meeting, how authorized, the notice thereof given,
and the names of those present at Directors' and committee meetings, the number
of shares present or represented at Shareholders' meetings and the proceedings
thereof.
B. The Secretary shall keep, or cause to be kept, at the principal
office of the Corporation or at the office of the Corporation's transfer agent,
a share register, or duplicate share register, showing the names of the
Shareholders and their addresses; the number and classes or
shares held by each; the number and date of certificates issued for the same;
and the number and date of cancellation of every certificate surrendered for
cancellation.
C. The Secretary shall give, or cause to be given, notice of all the
meetings of the Shareholders and of the Board of Directors required by the
Bylaws or by law to be given. The Secretary shall keep the seal of the
Corporation in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 10. Chief Financial Officer or Treasurer.
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A. The Chief Financial Officer shall keep and maintain, or cause to be
kept and maintained, in accordance with generally accepted accounting
principles, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, earnings (or surplus) and
shares issued. The books of account shall, at all reasonable times, be open to
inspection by any Director.
B. The Chief Financial Officer shall deposit all monies and other valuables
in the name and to the credit of the Corporation with such depositaries as may
be designated by the Board of Directors. The Chief Financial Officer shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the President and Directors, whenever they request
it, an account of all of the transactions of the 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 of Directors or the
Bylaws.
ARTICLE IV
SHAREHOLDERS' MEETINGS
Section 1. Place of Meetings. Meetings of the Shareholders shall be
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held at any place within or outside the state of Delaware designated by the
Board of Directors. In the absence of any such designation, Shareholders'
meetings shall be held at the principal executive office of the Corporation.
Section 2. Annual Meeting.
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A. The annual meeting of the Shareholders shall be held, each year, as
follows:
Time of Meeting: 10:00 A.M.
Date of Meeting: Second Tuesday in April
B. If this day shall be a legal holiday, then the meeting shall be held
on the next succeeding business day, at the same time. At the annual meeting,
the Shareholders shall elect a
Board of Directors, consider reports of the affairs of the Corporation and
transact such other business as may be properly brought before the meeting.
C. If the above date is inconvenient, the annual meeting of
Shareholders shall be held each year on a date and at a time designated by the
Board of Directors within ninety days of the above date upon proper notice to
all Shareholders.
Section 3. Special Meetings.
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A. Special meetings of the Shareholders for any purpose or purposes
whatsoever, may be called at any time by the Board of Directors, the Chairman of
the Board, the President, or by one or more Shareholders holding shares in the
aggregate entitled to cast not less than 10% of the votes at any such meeting.
Except as provided in paragraph B below of this Section 3, notice shall be given
as for the annual meeting.
B. If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, the President, any
Vice President or the Secretary of the Corporation. The officer receiving such
request shall forthwith cause notice to be given to the Shareholders entitled to
vote, in accordance with the provisions of Sections 4 and 5 of this Article,
indicating that a meeting will be held at the time requested by the person or
persons calling the meeting, not less than 35 nor more than 60 days after the
receipt of the request. If the notice is not given within 20 days after receipt
of the request, the person or persons requesting the meeting may give the notice
in the manner provided in these Bylaws. Nothing contained in this paragraph of
this Section shall be construed as limiting, fixing or affecting the time when a
meeting of Shareholders called by action of the Board of Directors may be held.
Section 4. Notice of Meetings - Reports.
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A. Notice of any Shareholders meetings, annual or special, shall be
given in writing not less than 10 days nor more than 60 days before the date of
the meeting to Shareholders entitled to vote thereat by the Secretary or the
Assistant Secretary, or if there be no such officer, or in the case of said
Secretary or Assistant Secretary's neglect or refusal, by any Director or
Shareholder.
B. Such notices or any reports shall be given personally or by mail or
other means of written communication as provided in the Act and shall be sent to
the Shareholder's address appearing on the books of the Corporation, or supplied
by the Shareholder to the Corporation for the purpose of notice, and in the
absence thereof, as provided in the Act by posting notice at a place where the
principal executive office of the Corporation is located or by publication at
least once in a newspaper of general circulation in the county in which the
principal executive office is located.
C. Notice of any meeting of Shareholders shall specify the place, the day
and the hour of meeting, and (i) in case of a special meeting, the general
nature of the business to be transacted and that no other business may be
transacted, or (ii) in the case of an annual meeting, those matters which the
Board of Directors, at the date of mailing of notice, intends to present for
action by the Shareholders. At any meetings where Directors are elected, notice
shall include the names of the nominees, if any, intended at the date of notice
to be presented for election.
D. Notice shall be deemed given at the time it is delivered personally
or deposited in the mail or sent by other means of written communication. The
officer giving such notice or report shall prepare and file in the minute book
of the Corporation an affidavit or declaration thereof.
E. If action is proposed to be taken at any meeting for approval of (i)
contracts or transactions in which a Director has a direct or indirect financial
interest, (ii) an amendment to the Articles of Incorporation, (iii) a
reorganization of the Corporation, (iv) dissolution of the Corporation, or (v) a
distribution to preferred Shareholders, the notice shall also state the general
nature of such proposal.
Section 5. Quorum.
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A. The holders of a majority of the shares entitled to vote at a
Shareholders' meeting, present in person, or represented by proxy, shall
constitute a quorum at all meetings of the Shareholders for the transaction of
business except as otherwise provided by the Act or by these Bylaws.
B. The Shareholders present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by a majority
of the shares required to constitute a quorum.
Section 6. Adjourned Meeting and Notice Thereof.
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A. Any Shareholders' meeting, annual or special, whether or not a
quorum is present, may be adjourned from time to time by the vote of the
majority of the shares represented at such meeting, either in person or by
proxy, but in the absence of a quorum, no other business may be transacted at
such meeting.
B. When any meeting of Shareholders, either annual or special, 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 a meeting at which the
adjournment is taken, unless a new record date for the adjourned meeting is
fixed, or unless the adjournment is for more than 45 days from the date set for
the original meeting, in which case the Board of Directors shall set a new
record date. Notice of any adjourned meeting shall be given to each Shareholder
of record entitled to vote at the adjourned
meeting in accordance with the provisions of Section 4 of this Article. At any
adjourned meeting, the Corporation may transact any business which might have
been transacted at the original meeting.
Section 7. Waiver or Consent by Absent Shareholders.
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A. The transactions of any meeting of Shareholders, either annual or
special, however called and noticed, shall be valid as though had at a meeting
duly held after regular call and notice, if a quorum be present either in person
or by proxy, and if, either before or after the meeting, each of the
Shareholders entitled to vote, not present in person or by proxy, sign a written
waiver of notice, or a consent to the holding of such meeting or an approval of
the minutes thereof.
B. The waiver of notice or consent need not specify either the business
to be transacted or the purpose of any regular or special meeting of
Shareholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in Section E of Section 4 of this
Article, the waiver of notice or consent shall state the general nature of such
proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
C. Attendance of a person at a meeting shall also constitute a waiver
of notice of such meeting, except when the person objects, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened, and except that attendance at a meeting is not a
waiver of any right to object to the consideration of matters not included in
the notice. A Shareholder or Shareholders of the Corporation holding at least
5% in the aggregate of the outstanding voting shares of the Corporation may (i)
inspect, and copy the records of Shareholders' names and addresses and
shareholdings during usual business hours upon five days prior written demand
upon the Corporation, and/or (ii) obtain from the transfer agent by paying such
transfer agent's usual charges for such a list, a list of the Shareholders'
names and addresses who are entitled to vote for the election of Directors, and
their shareholdings, as of the most recent record date for which such list has
been compiled or as of a date specified by the Shareholders subsequent to the
day of demand. Such list shall be made available by the transfer agent on or
before the later of five days after the demand is received or the date specified
therein as the date as of which the list is to be compiled. The record of
Shareholders shall also be open to inspection upon the written demand of any
Shareholder or holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to such holder's interest as a
Shareholder or as a holder of a voting trust certificate. Any inspection and
copying under this Section may be made in person or by an agent or attorney of
such Shareholder or holder of a voting trust certificate making such demand.
Section 8. Maintenance and Inspection of Bylaws. The Corporation shall
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keep at its principal executive office, or if not in this state, at its
principal business office in this state, the original or a copy of the Bylaws
amended to date, which shall be open to inspection by the Shareholders at all
reasonable times during office hours. If the principal executive office of the
Corporation is outside the state and the Corporation has no principal business
office in this state, the Secretary shall, upon written request of any
Shareholder, furnish to such Shareholder a copy of the Bylaws as amended to
date.
Section 9. Annual Report to Shareholders.
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A. Provided the Corporation has 100 Shareholders or less, the Annual
Report to Shareholders referred to in the Act is expressly dispensed with, but
nothing herein shall be interpreted as prohibiting the Board of Directors from
issuing annual or other period reports to Shareholders of the Corporation as
they deem appropriate.
B. Should the Corporation have 100 or more Shareholders, an Annual Report to
Shareholders must be furnished not later than 120 days after the end of each
fiscal period. The Annual Report to Shareholders shall be sent at least 15 days
before the annual meeting of the Shareholders to be held during the next fiscal
year and in the manner specified in Section 4 of Article V of these Bylaws for
giving notice to Shareholders of the Corporation. The Annual Report to
Shareholders shall contain a Balance Sheet as of the end of the fiscal year and
an Income Statement and Statement of Changes in Financial Position for the
fiscal year, accompanied by any report of independent accountants or, if there
is no such report, the certificate of an authorized officer of the Corporation
that the statements were prepared without audit from the books and records of
the Corporation.
Section 10. Financial Statements.
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A. A copy of any annual financial statement and any Income Statement of
the Corporation for each quarterly period of each fiscal year, and any
accompanying Balance Sheet of the Corporation as of the end of each such period,
that has been prepared by the Corporation shall be kept on file at the principal
executive office of the Corporation for 12 months from the date of its
execution, and each such statement shall be exhibited at all reasonable times to
any Shareholder demanding an examination of such statement or a copy shall be
made for any such Shareholder.
B. If a Shareholder or Shareholders holding at least 5% of the
outstanding shares of any class of stock of the Corporation make a written
request to the Corporation for an Income Statement of the Corporation for the
three month, six month or nine month period of the then current fiscal year
ended more than 30 days prior to the date of the request, and a Balance Sheet of
the Corporation at the end of such period, the Chief Financial Officer shall
cause such statement to be prepared, if not already prepared, and shall deliver
personally or mail such statement or statements to the person making the request
within 30 days after the receipt of such request. If the Corporation has not
sent to the Shareholders its Annual Report for the last fiscal year, this report
shall likewise be delivered or mailed to such Shareholder or Shareholders within
30 days after such request.
C. The Corporation also shall, upon the written request of any
Shareholder, mail to the Shareholder a copy of the last annual, semi-annual or
quarterly Income Statement which it has prepared and a Balance Sheet as of the
end of such period. This quarterly Income Statement and Balance Sheet referred
to in this Section shall be accompanied by the report thereon, if any, of any
independent accountants engaged by the Corporation or the certificate of
authorized officer of the
Corporation such that financial statements were prepared without audit from the
books and records of the Corporation.
Section 11. Annual Statement of General Information. The Corporation
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shall, in a timely manner, in each year, file with the Secretary of State of
Delaware, on the prescribed form, the statement setting forth the authorized
number of Directors, the names and complete business or residence addresses of
all incumbent Directors, the names and complete business or residence addresses
of the Chief Executive Officer, Secretary and Chief Financial Officer, the
street address of its principal executive office or principal business office in
this state and the general type of business constituting the principal business
activity of the Corporation, together with a designation of the agent of the
Corporation for the purpose of the service of process, all in compliance with
the Act.
ARTICLE IX
AMENDMENTS TO BYLAWS
Section 1. Amendment by Shareholders. New Bylaws may be adopted or
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these Bylaws may be amended or repealed by the vote or written consent of
holders of a majority of the outstanding shares entitled to vote; provided,
however, that if the Articles of Incorporation of the Corporation set forth the
number of authorized Directors of the Corporation, the authorized number of
Directors may be changed only by amendment to the Articles of Incorporation.
Section 2. Amendment by Directors. Subject to the rights of the
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Shareholders to adopt, amend or repeal the Bylaws, as provided in Section 1 of
this Article IX, and the limitations of the Act, the Board of Directors may
adopt, amend or repeal any of these Bylaws other than an amendment to the Bylaws
changing the authorized number of Directors.
Section 3. Record of Amendments. Whenever an amendment or new Bylaw is
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adopted, it shall be copies in the corporate book of Bylaws with the original
Bylaws, in the appropriate place. If any Bylaw is repealed, the fact of repeal
with the date of the meeting at which the repeal was enacted or written assent
was filed shall be stated in the corporate book of Bylaws.
ARTICLE X
MISCELLANEOUS
Section 1. Shareholders' Agreements. Notwithstanding anything
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contained in this Article X to the contrary, in the event the Corporation elects
to become a close corporation, an agreement between two or more Shareholders
thereof, if in writing and signed by the parties thereto, may provide that in
exercising any voting rights, the shares held by them shall be voted as provided
therein or in the Act, and may otherwise modify the provisions contained in
Article IV, herein as to Shareholders' meetings and actions.
Section 2. Effect of Shareholders' Agreements. Any Shareholders' Agreement
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authorized by the Act, shall only be effective to modify the terms of these
Bylaws if the Corporation elects to become a close corporation with the
appropriate filing of an amendment to its Articles of Incorporation as required
by the Act and shall terminate when the Corporation ceases to be a close
corporation. Any other provisions of the Act or these Bylaws may be altered or
waived thereby, but to the extent they are not so altered or waived, these
Bylaws shall be applicable.
Section 3. Subsidiary Corporations. Shares of the Corporation owned by
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a subsidiary shall not be entitled to vote on any matter.
Section 4. Accounting Year. The accounting year of the Corporation
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shall be fixed by resolution of the Board of Directors.
Section 5. Form. The corporate seal shall be circular in form, and
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shall have inscribed thereon the name of the Corporation, the date of its
incorporation, and the word "Delaware" to indicate the Corporation was
incorporated pursuant to the laws of the State of Delaware.