<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the quarterly period ended March 31, 2000
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ___________ to ___________
Commission file number: 33-55254-11
FORLINK SOFTWARE CORPORATION, INC.
---------------------------------------------------------------------------
(Exact name of small business issuer as specified in it charter)
<TABLE>
<S> <C>
NEVADA 87-0438458
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(State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.)
</TABLE>
94 RUE DE LAUSANNE, CH1202 GENEVA, SWITZERLAND
- -------------------------------------------------------------------------------
(Address of principal executive offices)
41-22-9000000
-----------------------------
(issuer's telephone number)
(Former name, former address and former fiscal year,
if changed since last report)
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or such shorter
period that the issuer was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [X] No [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS
Check whether the issuer filed all documents and reports required to be filed by
Section 12, 13 or 15(d) of the Exchange Act after the distribution of securities
under a plan confirmed by a court. Yes [ ] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of common
equity, as of the latest practicable date: AS OF MAY 12, 2000, THE ISSUER HAD
25,000,000 SHARES OF COMMON STOCK, $.001 PAR VALUE, OUTSTANDING.
Transitional Small Business Disclosure Format (Check one): Yes [ ] No [X]
<PAGE> 2
INDEX
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<CAPTION>
PART I - FINANCIAL INFORMATION PAGE
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<S> <C>
ITEM 1. FINANCIAL STATEMENTS.
F-1
Forlink Software Corporation, Inc.
March 31, 2000 and 1999
Consolidated Balance Sheets
December 31, 1999 and
March 31, 2000 and 1999 (unaudited) F-2
Consolidated Statements of Operations
for the year ended December 31, 1999 and
for the three months ended March 31, 2000 and 1999 (unaudited) F-3
Consolidated Statements of Cash Flows
for the year ended December 31, 1999 and
for the three months ended March 31, 2000 and 1999 (unaudited) F-4
Notes to Consolidated Financial Statements (unaudited) F-5
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITIONS AND RESULTS OF OPERATIONS 2
PART II - OTHER INFORMATION 4
SIGNATURES 5
</TABLE>
1
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
FORLINK SOFTWARE CORPORATION, INC.
FINANCIAL STATEMENTS
MARCH 31, 2000 AND 1999
F-1
<PAGE> 4
Forlink Software Corporation, Inc.
Consolidated Balance Sheets
(EXPRESSED IN US DOLLARS)
<TABLE>
<CAPTION>
March 31, December 31,
2000 1999
------------ ------------
(Unaudited) (Audited)
<S> <C> <C>
ASSETS
Current assets
CASH AND CASH EQUIVALENTS $ 940,085 $ 856,233
ACCOUNTS RECEIVABLE 4,640 1,690
OTHER RECEIVABLES, DEPOSITS AND PREPAYMENTS 175,320 17,044
INVENTORIES 60,581 34,286
------------ ------------
TOTAL CURRENT ASSETS 1,180,626 909,253
Plant and equipment, net 111,037 43,792
------------ ------------
Total assets $ 1,291,663 $ 953,045
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
AMOUNT DUE TO STOCKHOLDERS $ 83,345 $ 120,773
ACCOUNTS PAYABLE 121 --
OTHER PAYABLES AND ACCRUED EXPENSES 911,473 560,476
OTHER TAXES PAYABLE 17,303 1,100
------------ ------------
TOTAL CURRENT LIABILITIES 1,012,242 682,349
Commitments and contingencies
Shareholders' equity
COMMON STOCK, PAR VALUE $0.001 PER SHARE;
100,000,000 SHARES AUTHORIZED;
25,000,000 ISSUED AND OUTSTANDING 25,000 25,000
ADDITIONAL PAID-IN CAPITAL 250,630 250,630
RETAINED EARNINGS/(ACCUMULATED LOSSES) 3,791 (4,934)
------------ ------------
TOTAL SHAREHOLDERS' EQUITY 279,421 270,696
------------ ------------
Total liabilities and shareholders' equity $ 1,291,663 $ 953,045
============ ============
</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
F-2
<PAGE> 5
Forlink Software Corporation, Inc.
Consolidated Statements of Operations
(EXPRESSED IN US DOLLARS)
<TABLE>
<CAPTION>
Three Months ended
March 31,
------------------------------
2000 1999
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net sales $ 212,107 $ 1,697
Cost of sales (90,089) (63)
------------ ------------
Gross profit 122,018 1,634
Selling expenses (51,793) (1,492)
General and administrative expenses (62,415) (3,994)
FINANCIAL EXPENSES/(INCOME) (186) 583
------------ ------------
OPERATING INCOME/(LOSS) 7,624 (3,269)
Other income, net 1,101 --
------------ ------------
Income/(loss) before income tax 8,725 (3,269)
Provision for income tax -- --
------------ ------------
Net income/(loss) $ 8,725 $ (3,269)
============ ============
Earnings per share - basic and diluted $ -- $ --
============ ============
Weighted average common shares
outstanding - basic and diluted 25,000,000 20,000,000
============ ============
</TABLE>
SEE ACCOMPANYING NOTES TO UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
F-3
<PAGE> 6
Forlink Software Corporation, Inc.
Consolidated Statements of Cash Flows
(EXPRESSED IN US DOLLARS)
<TABLE>
<CAPTION>
Three Months Ended
March 31,
------------------------------
2000 1999
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
Cash flows from operating activities
NET INCOME/(LOSS) $ 8,725 $ (3,269)
ADJUSTMENTS TO RECONCILE NET INCOME/(LOSS)
TO NET CASH USED IN OPERATING ACTIVITIES
DEPRECIATION OF PLANT AND EQUIPMENT 2,409 1,027
CHANGE IN:
ACCOUNTS RECEIVABLE (2,950) --
OTHER RECEIVABLES, DEPOSITS AND PREPAYMENTS (158,276) (120)
INVENTORIES (26,295) (2,228)
ACCOUNTS PAYABLE 121 --
OTHER PAYABLES AND ACCRUED EXPENSES 50,997 (787)
OTHER TAXES PAYABLE 16,203 16
------------ ------------
Net cash used in operating activities (109,066) (5,361)
Cash flows from investing activities
ACQUISITION OF PLANT AND EQUIPMENT (69,654) (1,153)
------------ ------------
Net cash used in investing activities (69,654) (1,153)
Cash flows from financing activities
MONIES RECEIVED FROM A POTENTIAL INVESTOR 300,000 --
CAPITAL CONTRIBUTION BY A STOCKHOLDER -- 630
REPAYMENT TO STOCKHOLDERS (37,428) --
------------ ------------
Net cash provided by financing activities 262,572 630
Net increase/(decrease) in cash and cash equivalents 83,852 (5,884)
Cash and cash equivalents at beginning of period 856,233 88,964
------------ ------------
Cash and cash equivalents at end of period $ 940,085 $ 83,080
============ ============
</TABLE>
SEE ACCOMPANYING NOTES TO AUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
F-4
<PAGE> 7
Forlink Software Corporation, Inc.
Notes to Consolidated Financial Statements
MARCH 31, 2000 AND DECEMBER 31, 1999
(Expressed in US Dollars)
NOTE 1 - BASIS OF PRESENTATION
The accompanying financial data as of March 31, 2000 and for the three months
ended March 31, 2000 and 1999, have been prepared by the Company, without audit,
pursuant to the rules and regulations of the Securities and Exchange Commission.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. However,
the Company believes that the disclosures are adequate to make the information
presented not misleading. These financial statements should be read in
conjunction with the financial statements and the notes thereto included in the
Company's audited annual financial statements for the year ended December 31,
1999. The preparation of financial statements in conformity with general
accepted accounting principles requires management to make estimates that affect
the reported amounts of assets, liabilities, revenues and expenses and the
disclosure of contingent assets and liabilities. Actual results could differ
from these estimates.
In the opinion of Management, all adjustments (which include only normal
recurring adjustments) necessary to present fairly the financial position,
results of operations and cash flows as of March 31, 2000 and for the three
months ended March 31, 2000 and 1999, have been made. The results of operations
for the three months ended March 31, 2000 and 1999 are not necessarily
indicative of the operating results for the full year.
NOTE 2 - COMMITMENTS AND CONTINGENCIES
Operating lease commitment
As of March 31, 2000, the Company had commitments under non-cancelable operating
lease expiring within one year amounting to $19,520.
F-5
<PAGE> 8
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis should be read in conjunction with the
Company's financial statements and notes thereto included elsewhere in this Form
10-QSB. Except for the historical information contained herein, the discussion
in this Form 10-QSB contains certain forward looking statements that involve
risks and uncertainties, such as statements of the Company's plans, objectives,
expectations and intentions. The cautionary statements made in this Form 10-QSB
should be read as being applicable to all related forward statements wherever
they appear in this Form 10-QSB. The Company's actual results could differ
materially from those discussed here.
The Company is not aware of any circumstances or trends which would have a
negative impact upon future sales or earnings. There have been no material
fluctuations in the standard seasonal variations of the Company's business. The
accompanying financial statements include all adjustments which in the opinion
of management are necessary in order to make the financial statements not
misleading.
As discussed in the Company annual report filed on Form 10-KSB, on November 3,
1999, the Company entered into a Plan of Reorganization with Beijing
Shijiyonglian Ruanjian Jishu Youxian Gongsi (Beijing Forlink Software Technology
Co. Ltd., (hereinafter "BFSTC")), under the terms of which BFSTC has gained
control of the Company. With effect from December 6, 1999, the Company's name
has been changed from Why Not?, Inc. to Forlink Software Corporation, Inc.
("Forlink"). Pursuant to the Plan of Reorganization, the Company acquired 100%
of the issued and outstanding shares of BFSTC in exchange for 20,000,000 shares
of the Company's authorized, but unissued, common stock and RMB1 million. BFSTC
is engaged in the internet software system development business, and the
internet vertical portal business. The business of BFSTC has become the business
of the Company.
Results of Operations
(Expressed in US Dollars)
Three Months Ended March, 31, 2000 Compared to Three Months Ended March 31, 1999
<TABLE>
<CAPTION>
Three Months Ended
March 31,
2000 1999
------------ ------------
(Unaudited) (Unaudited)
<S> <C> <C>
Net sales $ 212,107 $ 1,697
============ ============
</TABLE>
Net sales were derived principally from Forlink brand "for-series" internet
software tools sales, internet software system integration, online software
sales and web advertisement.
The increase of revenues was primarily attributable to marketing efforts and
increased "for-series" brand awareness. The internet market in the People's
Republic of China (the "PRC") is growing very rapidly, "for-series" internet
software tools can support our customers to build a business web site within a
short period of time. Our "for-series" internet software tools are accepted by a
considerable number of PRC customers, such as Legend Computer, Zhaodaola.com,
Industrial and Commercial Bank of China, jbde.com.cn, etc.
Cost of services was consisted principally of salary for internet technicians,
costs of promotion, systems sales and integration, depreciation and other
associated costs relating to the delivery of services.
2
<PAGE> 9
The increase in costs of services was principally attributable to expenditures
to support the increase in net sales, including an increase in
engineering/technician headcount from 10 as of March 31, 1999 to 32 as of March
31, 2000, and the aggressive marketing strategy such as launching a net flash
program on China Central TV channel and other 12 TV channels. The Company has
also recently moved to a new office. In order to recruit experienced computer
engineers/technicians, the Company has to increase the current salary level.
Liquidity and Capital Resource
For the quarter ended March 31, 2000, the Company has generated a cash inflow of
$83,852 from its operations, resulting from an increase in revenue and receipt
of stock proceeds.
Business Risks
Due to the infant stage of its operations, the Company is facing two risks,
namely, market risk and technical risk. If the Company cannot get sufficient
funding, the Company cannot take up a sizeable market share and develop new
internet software tools.
Competition
As an internet software tools development company, the Company stands in a
unique position in the PRC growing internet market. The Company has developed
"for-series" internet tools, "for-mail", "for-search", "for-business",
"for-monitor". All the products are used by a considerable number of reputable
companies in the PRC. The Company is planning to accomplish "for-series"
products to solidify its leading market position.
Management of Growth
If the Company is successful in implementing its growth strategy, the Company
believes it can undergo a period of rapid growth. The Company's success will
depend on its marketing strategy, "for-series" development, implementing new
financial, management information system and internal control systems, and high
level of employee commitment to the Company. Recently, management has been
focusing on pursuing the corporate objective of becoming a leader in the field
of Internet Software Platform Provider ("ISPP") in the PRC. Based on the
"for-series" products, the Company can help its customers to build a business
web site within a short period of time. The Company is trying to integrate the
SMS and WAP to its "for-series" products. The new system will be implemented in
two Chinese influential wireless sites.
Year 2000 Issue
The Company experienced no material failures as a result of the Year 2000 Issue
and our financial condition and results of operations at and for the period
ended March 31, 2000 were not materially effected by the Year 2000 Issue.
3
<PAGE> 10
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS - None.
ITEM 2. CHANGES IN SECURITIES
During the quarter ended March 31, 2000, the Company commenced a
private placement of up to ten units of its securities, each unit consisting of
200,000 shares of common stock and 200,000 common stock purchase warrants, at a
price of $800,000 per unit. The exercise price of the warrants is $6.00 per
share. The sale of the first unit was completed in the first quarter, but the
shares and the warrants have not yet been issued. In connection with the
offering, the Company is granting registration rights to the investors.
This transaction did not involve any public offering, no sales
commissions were paid, and a restrictive legend will be placed on each
certificate evidencing the shares and on the warrant. All investors must be
accredited investors, and the Company believes that this private placement is
exempt from registration pursuant to Sections 4(2), 4(6) and/or Rule 506 of the
Securities Act of 1933.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES - None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS - None.
ITEM 5. OTHER INFORMATION - None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits: Exhibit Number and Brief Description
2.1 Plan of Reorganization dated November 3, 1999 (Incorporated by
reference to Exhibit No. 2.1 of the current report on Form 8-K
dated November 3, 1999, and filed November 18, 1999.)
2.2 Addendum to the Plan of Reorganization dated November 3, 1999.
(Incorporated by reference to Exhibit No. 2.2 of the current
report on Form 8-K/A-2 dated November 3, 1999, and filed March
31, 2000.)
3.1 Articles of Incorporation, as amended and currently in effect.
(Filed herewith.)
3.2 Bylaws dated May 11, 2000. (Filed herewith.)
27 Financial Data Schedule. (Filed herewith.)
(b) Reports on Form 8-K
1. On January 10, 2000, the Company filed a current report on Form 8-K
to report that it had changed its independent accountants from Smith & Company
to BDO International.
2. On January 18, 2000, the Company filed a current report on Form
8-K/A to provide the required financial statements in connection with the
acquisition of Beijing Shijiyonglian Ruanjian Jishu Youxian Gongsi (Beijing
Forlink Software Technology Co. Ltd.), which had been reported on a current
report on Form 8-K, filed November 18, 1999.
3. On March 31, 2000, the Company filed a current report on Form
8-K/A-2 to describe an Addendum to the Plan of Reorganization that was filed
with the initial current report on Form 8-K, filed November 18, 1999, regarding
the acquisition of Beijing Shijiyonglian Ruanjian Jishu Youxian Gongsi (Beijing
Forlink Software Technology Co. Ltd.).
4
<PAGE> 11
SIGNATURES
In accordance with the requirements of the Exchange Act, the Company
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
FORLINK SOFTWARE CORPORATION, INC.
By: /s/ Liang Che
------------------------------------
Liang Che, CEO and CFO
Date: May 12, 2000
5
<PAGE> 12
EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Description
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<S> <C>
2.1 Plan of Reorganization dated November 3, 1999 (Incorporated by
reference to Exhibit No. 2.1 of the current report on Form 8-K
dated November 3, 1999, and filed November 18, 1999.)
2.2 Addendum to the Plan of Reorganization dated November 3, 1999.
(Incorporated by reference to Exhibit No. 2.2 of the current
report on Form 8-K/A-2 dated November 3, 1999, and filed March
31, 2000.)
3.1 Articles of Incorporation, as amended and currently in effect.
(Filed herewith.)
3.2 Bylaws dated May 11, 2000. (Filed herewith.)
27 Financial Data Schedule. (Filed herewith.)
</TABLE>
<PAGE> 1
FILED# CI570-93 EXHIBIT 3.1
-----------
DEC 06, 1999 CERTIFICATE OF AMENDMENT
IN THE OFFICE OF
DEAN HELLER, TO THE ARTICLES OF INCORPORATION OF
SECRETARY OF STATE
LIGHT ENERGY MANAGEMENT, INC.
Pursuant to the provisions of the Nevada Revised Statutes, LIGHT ENERGY
MANAGEMENT, INC., a Nevada corporation, adopts the following amendment to its
Articles of Incorporation:
1. The undersigned hereby certifies that on the 24th day of November,
1999, a Special Meeting of the Board of Directors was duly held and convened at
which there was present a quorum of the Board of Directors acting throughout all
proceedings, and at which time the following resolution was duly adopted by the
Board of Directors:
BE IT RESOLVED: That the Secretary of the corporation is
hereby ordered and directed to obtain the written consent of
stockholders owning at least a majority of the voting power of
the outstanding stock of the corporation for the following
purpose:
To amend Article One to provide that the name of the
corporation shall be changed from LIGHT ENERGY MANAGEMENT,
INC. to FORLINK SOFTWARE CORPORATION INC.
2. Pursuant to the provisions of the Nevada Revised Statutes, a
majority of the stockholders holding 20,000,000 shares of the 25,000,000 shares
outstanding of LIGHT ENERGY MANAGEMENT. INC. gave their written consent to the
adoption of the Amendment to Article One of the Articles of Incorporation as
follows:
ARTICLE ONE. [NAME]. THE NAME OF THE CORPORATION IS:
FORLINK SOFTWARE CORPORATION INC.
IN WITNESS WHEREOF, the undersigned being a director of LIGHT ENERGY
MANAGEMENT. INC., a Nevada corporation, with full authority to sign this
document on behalf of the corporation, hereunto affix his signature this 24th
day of November, 1999.
LIGHT ENERGY MANAGEMENT, INC.
By: Michael J. Harrop
----------------------------
Michael J. Harrop
Director with Full Authority
President and Secretary
RECEIVED
DEC 06 1999
Secretary of State
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
DEC 31 1998
<PAGE> 2
NO. C17570-93
- -------------------------------
DEAN HELLER, SECRETARY OF STATE
Nevada Corporate Services
Via Facsimile: (702) 734-7500
Re. Light Energy Management Corporation
Light Energy Management, Inc., a Nevada Corporation authorizes Why Not Inc., a
Nevada Corporation to use the name Light Energy Management, Inc.
/s/ J. Bob Carter
- -------------------
J. Bob Carter
President/Secretary
STATE OF WASHINGTON
COUNTY OF WHATOOM
SIGNED OR ATTESTED BEFORE ME
ON JANUARY 8, 1999 BY
J. BOB CARTER
/s/ Nieves B. Barredo
---------------------
Notary
<PAGE> 3
FILED
IN THE OFFICE OF THE AMENDMENT TO THE
SECRETARY OF STATE OF THE ARTICLES OF INCORPORATION
STATE OF NEVADA OF
WHY NOT?, INC.
DEC 31 1998
(NAME CHANGED HEREIN TO LIGHT ENERGY MANAGEMENT, INC.)
NO. C17570-93
------------------------------
DEAN HELLER, SECRETARY OF STATE
WHEREAS, there was issued by the Secretary of State a Charter
constituting and creating WHY NOT?, INC., a corporation organized under the laws
of this state with its principal place of business in Las Vegas, Nevada, and a
capital stock of One Hundred Thousand Dollars ($100,000.00), divided into One
Hundred Million (1,000,000) shares of a par value of one mill (1/10 cent) each,
empowering it to engage in any activity or business not in conflict with the
laws of the State of Nevada or of the United States of America.
The undersigned, president and Secretary of WHY NOT?, INC. hereby
certify that by resolutions duly adopted unanimously the Board of Directors of
the Company pursuant to written action effective as of December 29, 1998; and by
resolutions duly adopted by a majority of the shareholders of all classes of
stock outstanding and entitled to vote thereon of the Company pursuant to
written action effective as of December 29, 1998, amending the Articles of
Incorporation as follows:
That Article I be amended and changed to read as follows: Name: The
name of the Corporation is LIGHT ENERGY MANAGEMENT, INC.
FURTHER ACTIONS
RESOLVED, that the appropriate officers of the Company are hereby
authorized and directed to take any and all further actions deemed necessary or
appropriate to effectuate the foregoing resolutions.
IN WITNESS WHEREOF, the undersigned has hereunto fixed his signature.
/s/ Michael A. Harrop
- ------------------------------------------ RECEIVED
Michael A. Harrop, Chairman of the Board DEC 31 1998
SECRETARY OF STATE
/s/ Eric Drisenko
- ------------------------------------------
Eric Drisenko, Secretary
WHEREFORE, they pray that the Articles of Incorporation of WHY NOT?,
INC be so amended.
DATED this 29th day of December, 1998.
/s/ Michael A. Harrop
----------------------------
Michael A. Harrop, President
/s/ Eric Drizenko
- ------------------------
Eric Drizenko, Secretary
<PAGE> 4
On this 30th day of December, 1998, before me, a notary public,
personally appeared Michael A. Harrop, known to me to be the person whose name
is subscribed to the within document, and acknowledge that he executed the same.
Notary Public
Authentication N 8408
- --------------------------------------------------------------------------------
The undersigned, ERIC FELIX, PUBLIC NOTARY in CH-I170 Aubonne (Canton of Vaud,
Switzerland), hereby certifies the authenticity of the signature inscribed
opposite in his presence by Michael HARROP, born on the twentieth of August
nineteen forty-five, a Swiss citizen (originating from Chavaanes-des-Bois),
living in CH-1290 Chavannes-des-Bois, chemin des Tournesols. Aubonne, the
thirtieth of December nineteen ninety-eight.
/s/ Eric Felix
Eric Felix not.
<PAGE> 5
C 05838
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE ARTICLES OF MERGER
STATE OF NEVADA OF
AUG 28 1995 WHY NOT?, INC.
NO. 17570-93
--------------------------------
DEAN HELLER, SECRETARY OF STATE
As provided for under Nevada Revised Statute Section 78.458, Why Not?,
Inc., a Nevada corporation, as the surviving corporation of the planned merger
herein submits to the Secretary of State the following ARTICLES OF MERGER as
acknowledged by the President and the Secretary of the corporation.
1. Why Not?, Inc., a Utah corporation, is located at 3760 So. Highland Drive,
Suite 300, Salt Lake City, Utah 84106 and is being merged into and survived by
Why Not?, Inc., a Nevada corporation, as the acquiring corporation with its
registered place of business at 1800 E. Sahara, Suite 107, Las Vegas, Nevada
89104.
2. The plan of merger has been adopted by the board of directors of each
corporation.
3. Approval by the stockholders of the Nevada corporation was not required as
set forth in Section 78.454 inasmuch as the shares and rights of the
stockholders of the Nevada corporation will not change.
4. Approval by the stockholders of the Utah corporation was required, and after
approval by the board of directors, the plan was submitted to the stockholders
at a special meeting on December 30, 1993, with the voting as follows: At the
time of the meeting there were 1,000,000 shares outstanding and entitled to
vote, 826,800 shares were present in person or by proxy and that 826,800 shares
voted in favor of the plan and no shares voted against the plan.
5. There are no amendments to the Articles of Incorporation of the surviving
corporation.
6. A copy of the Plan of Merger is attached.
We, the undersigned, .being the President and the Secretary, do make
and file these Articles of Merger, hereby declaring and certifying that the
facts herein stated are true, and accordingly have hereunto set our hand.
/s/ Krista Castleton
---------------------------
Krista Castleton, President
/s/ David R. Yeaman
- ---------------------------
David R. Yeaman, Secretary
STATE OF UTAH )
:ss )
County of Salt Lake )
On this 30th day of December, 1993, before me, a notary public,
personally appeared Krista Castleton and David R. Yeaman, known to me to be the
persons whose names are subscribed to the within document, and acknowledge that
they executed the same.
/s/ Peter W. Guyon
- ------------------
Notary Public
[Notary Seal]
<PAGE> 6
PLAN OF MERGER
OF
WHY NOT?, INC.
SUBJECT TO THE NEVADA REVISED STATUTES SECTION 78.451 THE NEVADA
CORPORATION HEREIN SUBMITS ITS PLAN OF MERGER AS APPROVED BY THE BOARD OF
DIRECTORS AND A MAJORITY OF THE STOCKHOLDERS.
1. NAME:
It is the intent of Why Not?, Inc., incorporated in the State of Utah,
to merge into and to be survived by the Nevada corporation a corporation
organized under the laws of the State of Nevada, and to hence forth be known and
on record as Why Not?, Inc.
2. TERMS AND CONDITIONS:
The terms and conditions of the merger, as negotiated by the board of
directors and approved by the majority of the stockholders, is as follows:
(a) That Why Not?, Inc., a Utah corporation, merge into and be
survived by Why Not?, Inc., the Nevada corporation, and that the stockholders of
the Utah corporation will now hold the same number of shares in the Nevada
corporation with identical designations, preferences, limitations, and relative
rights after the merger.
(b) That the stockholders in Why Not?, Inc., a Utah
corporation, will receive one share of Why Not?, Inc., the Nevada corporation,
in exchange for one share of the Utah corporation.
(c) Merger of the Utah corporation into the Nevada corporation
is permissible under Utah law Section 16-10A-1107(1)(a).
(d) Subject to NRS Section 78.454, approval by the
stockholders of the Nevada corporation, is not required for the merger, inasmuch
as the articles of incorporation of the Nevada corporation will not differ from
its articles before the merger.
(e) Each stockholder in the Nevada corporation, whose shares
were outstanding immediately before the effective date of the merger, will hold
the same number of shares with identical designations, preferences, limitations,
and relative rights immediately after the merger.
(f) The number of voting shares outstanding immediately after
the merger, plus the number of voting shares issuable as a result of the merger
do not exceed more than twenty percent (20%) of the total number of voting
shares outstanding immediately before the merger.
(g) The number of participating shares outstanding immediately
after the merger, plus the number of participating shares issuable as a result
of the merger do not exceed more than twenty percent (20%) of the total number
of participating shares outstanding immediately before the merger.
WHY NOT?, INC. (UTAH)
/s/ Krista Castleton
--------------------
President
WHY NOT?, INC. (NEVADA)
/s/ Krista Castleton
------------------------
President
<PAGE> 7
FILED ARTICLES OF INCORPORATION
IN THE OFFICE OF THE
Secretary of State of the OF
STATE OF NEVADA
DEC. 30, 1993 WHY NOT?, INC.
Know all men by these presents:
That I, the undersigned, acting as incorporator for the purpose of
forming a corporation under and pursuant to the provisions of Nevada Revised
Statutes 78.010 to Nevada Revised Statutes 78.090 inclusive, as amended, and
certify that:
ARTICLE I
The name of this corporation is WHY NOT?, INC.
The name and post office address of the incorporator signing the
Articles of Incorporation is: Krista Castleton, 3760 So. Highland Drive, Suite
300, Salt Lake City, Utah, 84106. The name and address of the first member of
the First Board of Directors is: Krista Castleton, 3760 So. Highland Drive,
Suite 300, Salt Lake City, Utah, 84106.
ARTICLE II
The Resident Agent of this corporation in Nevada shall be Nevada
Corporate Services located at 1800 E. Sahara. Suite 107, Las Vegas, Clark
County, Nevada, 89104. Offices for the transaction of any business of the
Corporation, and where meetings of the Board of Directors and of Stockholders
may be held, may be established and maintained in any other part of the State of
Nevada, or in any other state, territory or possession of the United States of
America, or in any foreign country as the Board of Directors may, from time to
time determine.
ARTICLE III
The nature of the business and the objects and purpose proposed to be
transacted, promoted or carried on by the Corporation is to conduct any lawful
activity in accordance with the Laws of the State of Nevada and the United State
of America, including but not limited to inventing, developing, marketing, and
otherwise exploiting high technology electronic communication systems, both
hardware and software components, particularly systems utilizing security coding
and protective transmitting and receiving.
To do each and everything necessary, suitable or proper for the
accomplishment of any of the foregoing purposes or the attainment of any one or
more of the subjects hereinabove enumerated, or which may at any time appear
conducive to or expedient for the protection or benefit of this Corporation, and
to do such acts as fully and to the same extent as natural persons might, or
could do, in any part of the world as principals, agents, partners, trustees, or
otherwise, either alone or in conjunction with any other person, association or
corporation. The period of duration of this Corporation is perpetual.
The foregoing clauses shall be construed as powers as well as objects
and purposes and the matters expressed in each clause shall, unless herein
otherwise expressly provided, be in no wise limited by reference to or inference
from the terms of any other clause shall be regarded
<PAGE> 8
as independent objects, purposes and powers and the enumeration of specific
objects, purposes and powers shall not be construed to limit or restrict in any
manner the meaning of the general terms or the general powers of the Corporation
nor shall the expression of one thing be deemed to exclude another not expressed
although it be of like nature.
ARTICLE IV
The aggregate number of shares which the Corporation shall have
authority to issue is 100,000,000 shares, having a par value of $0.001 (one
mill) per share. The stock shall be designated as Class "A" voting common stock
and shall have the same rights and preferences. The stock of the Corporation
shall be nonassessable. Fully paid stock of this Corporation shall not be liable
for any further call or assessment. The total capitalization of the Corporation
shall be $100,000. The shares of Class "A" common stock shall not be divided
into classes and may not be issued in series.
ARTICLE V
No stockholder of the Corporation shall, because of his ownership of
stock, have a pre-emptive or other right to purchase, subscribe for or take part
of any of the notes, debentures. bonds or other securities convertible into or
carrying options for warrants to purchase stock of the Corporation issued,
optioned or sold by it after its incorporation, except as may be otherwise
stated in these Articles of Incorporation. Any part of the capital stock and any
part of the notes, debentures, bonds, or other securities convertible into or
carrying options or warranties to purchase stock of the Corporation authorized
by these Articles of Incorporation or by an amended certificate duly filed may
at any time be issued, optioned for sale and sold or disposed of by the
Corporation pursuant to the resolution of its Board of Directors to such persons
and upon such terms as may to such Board of Directors seem proper, without first
offering such stock or securities or any part thereof to existing stockholders,
except as required in Article IV of these Articles of Incorporation.
ARTICLE VI
Each outstanding share of the class "A" common stock of the Corporation
shall be entitled to one vote on each matter submitted to a vote at a meeting of
the stockholders. Each shareholder shall be entitled to vote his or its shares
in person or by proxy, executed in writing by such shareholder or by its duly
authorized attorney in fact. At each election for directors, every shareholder
entitled to vote at such election shall have the right to vote in person or by
proxy, the number of shares owned by him or it for as many persons as there are
directors to be elected and for whose election he or it has the right to vote,
but the shareholder shall have no right, whatsoever, to accumulate his or its
votes with regard to such election.
ARTICLE VII
The members of the governing board of this corporation shall be called
directors. The Board of Directors shall consist of at least one (1) person. The
number of directors of this corporation may, from time to time, be increased or
decreased by an amendment to the By-Laws in that regard and without the
necessity of amending the Articles of Incorporation. A majority of the Directors
in office, present at any meeting of the Board of Directors, duly called,
whether regular or special, shall always constitute a quorum for the transaction
of business, unless the By-Laws otherwise provide. Directors need not be
residents of the State of Nevada or stockholders of the Corporation.
<PAGE> 9
ARTICLE VIII
This Corporation shall have a president, a secretary, a treasurer, and
a resident agent, to be chosen by the Board of Directors, any person may hold
two or more offices.
ARTICLE IX
The capital stock of the Corporation, after the fixed consideration
thereof has been paid or performed, shall not be subject to assessment, and the
individual stockholders of this Corporation shall not be individually liable for
the debts and liabilities of the Corporation, and the Articles of Incorporation
shall never be amended as to the aforesaid provisions.
ARTICLE X
The Board of Directors is expressly authorized: (subject to the
By-Laws, if any, adopted by the Stockholders)
1) To make, alter or amend the By-Laws of the Corporation.
2) To fix the amount in cash or otherwise, to be reserved as working
capital.
3) To authorize and cause to be executed mortgages and liens upon the
property and franchises of the Corporation.
4) To by resolution or resolutions passed by a majority of the whole
board, designate one or more committees, each committee to consist of one or
more of the Directors of the Corporation, which, to the extent provided in the
resolution or resolutions or in the By-Laws of the Corporation, shall have and
may exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and may have power to authorize the
seal of the Corporation to be affixed to all papers on which the Corporation
desires to place a seal. Such committee or committees shall have such name or
names as may be stated in the By-Laws of the Corporation or as may be determined
from time to time by resolution adopted by the Board of Directors.
5) To sell, lease or exchange all of its property and assets, including
its goodwill and its corporate franchises, upon such terms and conditions as the
board deems expedient and for the best interests of the Corporation, when and as
authorized by the affirmative vote of the stockholders holding stock in the
Corporation entitling them to exercise at least a majority of the voting power
given at a stockholders meeting called for that purpose.
ARTICLE XI
In the absence of fraud, no contract or other transaction of the
Corporation shall be affected by the fact that any of the Directors are in any
way interested in, or connected with, any other party to such contract or
transaction, or are themselves, parties to such contract or transaction,
provided that this interest in any such contract or transaction of any such
director shall at any time be fully disclosed or otherwise known to the Board of
Directors, and each and every person who may become a director of the
Corporation is hereby relieved of any liability that might otherwise exist from
contracting with the Corporation for the benefit of himself or any firm,
association or corporation in which he may be in any way interested.
<PAGE> 10
ARTICLE XII
No director or officer of the Corporation shall be personally liable to
the Corporation or any of its stockholders for damage for breach of fiduciary
duty as a director or officer involving any act or omission of any such director
or officer provided, however, that the foregoing provision shall not eliminate
or limit the liability of a director or officer for acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law, or the
payment of dividends in violation of Section 78.300 of the Nevada Revised
Statutes. Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any
limitation on the personal liability of a director or officer of the Corporation
to acts or omissions prior to such repeal or modification.
I, the undersigned, being the incorporator hereinbefore named for the
purpose of forming a corporation pursuant to the general corporation law of the
State of Nevada, do make and file these Articles of Incorporation, hereby
declaring and certifying that the facts herein stated are true, and accordingly
have hereunto set my hand.
/s/ Krista Castleton
--------------------
State of Utah )
) ss
County of Salt Lake )
On December 29, 1993 personally appeared before me, the
undersigned, a Notary Public, Krista Castleton, known to me the person
whose name is subscribed to the foregoing document and acknowledged to
me that she executed the same.
/s/ David R. Yeaman
--------------------------
Notary Public
[Notary Stamp]
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
FORLINK SOFTWARE CORPORATION, INC.
ARTICLE I
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the corporation
shall be located at 94 Rue de Lausanne, CH1202 Geneva, Switzerland. The
corporation may have such other offices, either within or outside of the State
of Nevada, as the Board of Directors may designate or as the business of the
corporation may require from time to time.
Section 1.2 REGISTERED OFFICE. The registered office of the
corporation, required by the General Corporation Law of Nevada to be maintained
in the State of Nevada, may be, but need not be, identical with the principal
office in the State of Nevada, and the address of the registered office may be
changed from time to time by the Board of Directors.
ARTICLE II
SHAREHOLDERS
Section 2.1 ANNUAL MEETING. The annual meeting of the shareholders
shall be held within six months of the end of the corporation's fiscal year, at
such place, on such date, and at such hour as the Board of Directors shall fix
by resolution for the purpose of electing directors and for the transaction of
such other business as may come before the meeting.
Any shareholder entitled to participate in an annual meeting may apply
to the district court in the county in Nevada where the corporation's principal
office is located or, if the corporation has no principal office in Nevada, 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 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.
Section 2.2 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the President, by a majority of the Board of Directors, or by the person or
persons authorized by resolution of the Board of Directors and shall be called
by the President upon the receipt of one or more written demands for a special
meeting, stating the purpose or purposes for which it is to be held, signed and
dated by the 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.
Any person who participated in a call of or demand for a special
meeting may apply to the district court in the county in Nevada where the
corporation's principal office is located or, if the corporation has no
principal office in Nevada, 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 if: (i) 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; or
(ii) the special meeting was not held in accordance with the notice.
Section 2.3 PLACE OF MEETINGS. The Board of Directors may designate any
place, either within or outside of the State of Nevada, as the place of meeting
for any annual meeting or for any special
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<PAGE> 2
meeting. If no designation is made, or if a special meeting be otherwise called,
the place of meeting shall be the principal office of the corporation in the
State of Nevada.
Section 2.4 NOTICE OF MEETING. Notice stating the place, day and hour
of each annual and special meeting of shareholders and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall, unless
otherwise prescribed by statute, be delivered not less than ten nor more than
sixty days before the date of the meeting, either personally or by mail, by or
at the direction of the President, or the Secretary, or the officer or other
persons calling the meeting, to the shareholders; provided, however, that if the
authorized shares is to be increased, at least thirty days' notice shall be
given. Unless otherwise required by statute, notice need be given only to
shareholders entitled to vote at such meeting.
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, (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, 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 General Corporation Law of Nevada.
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. 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 or her
address as it appears in the corporation's current record of shareholders, with
postage prepaid. If written notice is given other than by mail, and provided
that such notice is in a comprehensible form, the notice is given and effective
at the earliest of: (i) the date received; (ii) five days after mailing; or
(iii) the date shown on the return receipt, if mailed by registered or certified
mail, return receipt requested, and the receipt is signed by or on behalf of the
addressee.
If requested by the person or persons lawfully calling such meeting,
the notice shall be given at corporate expense.
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 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 stated in the notice as the date or time when any action will occur or
has occurred by a writing signed by the shareholder entitled to the notice. Such
waiver shall be delivered to the corporation for filing with the corporate
records provided that such delivery and filing shall not be conditions of the
effectiveness of the waiver. 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 in 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.
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<PAGE> 3
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. 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.
Section 2.5 FIXING OF RECORD DATE. For the purpose of determining
shareholders entitled to (i) be given notice of any meeting of shareholders or
any adjournment thereof, (ii) to vote at any meeting, (iii) take any other
action, (iv) receive distributions or share dividends, or (v) 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
sixty days and, in the case of a meeting of shareholders, not less than ten
days, prior to the date of the meeting or 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 day before the first notice of the
meeting is given to shareholders, or the date on which the Board of Directors
authorizes a distribution, 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. Unless otherwise specified when the record date is fixed, the
time of day for such determination shall be as of the corporation's close of
business on the record date.
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, or the
date that is 60 days before the date the first of such demands is received by
the corporation, whichever is later.
Section 2.6 VOTING LISTS. After a record date is fixed for a
shareholders' meeting, the Secretary shall make 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 of the meeting or any
adjournment thereof) 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 2.6 any holder of voting trust certificates) or his
or her agent or attorney during regular business hours and during the meeting or
adjournment thereof. The original stock transfer books shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders.
Any shareholder, his or her agent, or attorney may upon written demand
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 in connection
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.
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<PAGE> 4
Section 2.7 QUORUM. A majority of the votes entitled to be cast on the
matter by a voting group, represented in person or by proxy, constitutes a
quorum of that voting group for action on that matter. If no specific voting
group is designated in the Articles of Incorporation or under the General
Corporation Law of Nevada for a particular matter, all outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a voting group. In the absence of a quorum at any such meeting, a
majority of the shares so represented may adjourn the meeting from time to time
for a period not to exceed one hundred twenty days for any one adjournment
without further notice. However, if the adjournment is for more than one hundred
twenty days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
At such adjourned meeting at which a quorum shall be present or
represented, 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 during such meeting of that number of shareholders whose absence
would cause there to be less than a quorum.
Section 2.8 MANNER OF ACTING. If a quorum is present, an 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 a greater number of
affirmative votes is otherwise required by the General Corporation Law of
Nevada, the Articles of Incorporation or these Bylaws.
Section 2.9 PROXIES. A shareholder may vote the shareholder's shares in
person or by proxy by signing an appointment form, either personally or by his
or her duly authorized attorney-in-fact. A shareholder may also appoint a proxy
by transmitting or authorizing the transmission of a 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 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.
An appointment of a proxy is revocable by the shareholder unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest. An appointment made irrevocable is revoked when the
interest with which it is coupled is extinguished, but such revocation 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 or
her 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 or her 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 or her voting in person on any
matter subject to a vote at such meeting.
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<PAGE> 5
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 or her
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 either personally or by the shareholder's 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.
A transferee for value of shares subject to an irrevocable appointment
may revoke the appointment if the transferee did not know of its existence when
he or she acquired the shares and the existence of the irrevocable appointment
was not noted on the certificate representing the shares or on the information
statement for shares without certificates.
Section 2.10 VOTING OF SHARES. Except as otherwise provided in this
Section or in the Articles of Incorporation, 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. At each
election for directors, every shareholder entitled to vote at such election has
the right to vote, in person or proxy, all of the shareholder's votes for as
many persons as there are directors to be elected and for whose election the
shareholder has a right to vote unless the Articles of Incorporation provide
otherwise. Cumulative voting shall not be permitted in the election of directors
or for any other purpose. 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 corporation owns, directly or
indirectly, a majority of the shares entitled to vote for directors of the
second corporation; provided, however, that this provision shall not limit the
power of the corporation to vote any shares, including the corporation's own
shares, held by it 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 2.11 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:
(a) the shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
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<PAGE> 6
(b) 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;
(c) 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;
(d) 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;
(e) 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
(f) 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 2.11.
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 any of its officers or agents 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 2.12 ACTION BY SHAREHOLDERS WITHOUT A MEETING. Unless the
Articles of Incorporation require that such action be taken at a shareholders'
meeting any action required or permitted to be taken at a meeting of the
shareholders may be taken without a meeting if all of the shareholders entitled
to vote thereon consent to such action in writing. No action pursuant to this
Section shall be effective unless the corporation has received writings that
describe and consent to the action, signed by all of the shareholders entitled
to vote on the action. Any such writing may be received by the corporation by
electronically transmitted facsimile or other form of wire or wireless
communication providing the corporation with a complete copy thereof, including
a copy of the signature thereto. Action taken pursuant to this Section shall be
effective as of the date the corporation receives writings describing and
consenting to the action signed by all of the shareholders entitled to vote with
respect to the action, unless all of the writings specify another date as the
effective date of the action, in which case such other date shall be the
effective date of the action.
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Any shareholder who has signed a writing describing and consenting to
action taken pursuant to this Section 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 prior to the date the last writing necessary to effect the
action is received by the corporation.
If any shareholder revokes his or her 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 first receives a
writing upon which the action is taken.
Action taken under this Section has the same effect as action taken at
a meeting of the shareholders and may be described as such in any document.
Section 2.13 VOTING BY BALLOT. Voting on any question or in any
election may be by voice vote unless the presiding officer shall order or any
shareholder shall demand that voting be by ballot.
Section 2.14 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 3.1 GENERAL POWERS. All corporate powers shall be exercised by
or under the authority of, and the business affairs of the corporation shall be
managed under the direction of, the Board of Directors, except as otherwise
provided in the General Corporation Law of Nevada or the Articles of
Incorporation. Notwithstanding the foregoing, the Board of Directors shall make
all decisions regarding all managers' salaries, bonuses, corporate borrowings,
expansion, issuance of stock, and similar major corporate actions.
Section 3.2 PERFORMANCE OF DUTIES. A director of the corporation shall
discharge his or her duties as a director, including his or her duties as a
member of any committee of the board upon which he or she may serve, in good
faith, in a manner he or she reasonably believes to be in the best interests of
the corporation, and with the care an ordinarily prudent person in a like
position would use under similar circumstances. In discharging his or her
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 persons and groups listed in paragraphs (a), (b),
and (c) of this Section 3.2; but he or she shall not be considered to be acting
in good faith if he or she has knowledge concerning the matter in question that
makes such reliance unwarranted. A director shall not be liable as such to the
corporation or its shareholders for any action he or she takes or omits to take
as a director if, in connection with such action or omission, he or she
performed the duties of the position in compliance with this Section. Those
persons and groups on whose information, opinions, reports, and statements a
director is entitled to rely are:
(a) one or more officers or employees of the corporation whom
the director reasonably believes to be reliable and competent in the
matters presented;
(b) legal counsel, public accountants, or other persons as to
matters which the director reasonably believes to be within such
person's professional or expert competence; or
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(c) a committee of the board of which the director is not a
member if the director reasonably believes the committee merits
confidence.
Section 3.3 NUMBER, TENURE, AND QUALIFICATIONS. The number of directors
of the corporation shall be fixed from time to time by resolution of the Board
of Directors, but in no instance shall there be less than one director nor more
than nine directors, and in no case shall a decrease in the number of directors
shorten an incumbent director's term. Each director shall hold office until the
next annual meeting of shareholders and thereafter until his or her successor
shall have been elected and qualified. Directors shall be natural persons who
are eighteen years of age or older but need not be residents of the State of
Nevada or shareholders of the corporation.
In the event that there is more than one director of the corporation,
there may be a Chairman of the Board, who has been elected from among the
directors. He or she shall preside at all meetings of the stockholders and of
the Board of Directors. He or she shall have such other powers and duties as may
be prescribed by the Board of Directors.
Section 3.4 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 without the State of Nevada,
for the holding of additional regular meetings without other notice than such
resolution.
Section 3.5 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the President or, if there are
more than two directors, by any two directors. The person or persons authorized
to call special meetings of the Board of Directors may fix any place, either
within or without the State of Nevada, as the place for holding any special
meeting of the Board of Directors called by them.
Section 3.6 NOTICE. Notice of the date, time and place of any special
meeting shall be given to each director at least two days prior to the meeting.
Notice shall be given personally or by mail, private carrier, telegraph,
teletype, electronically transmitted facsimile or other form of wire or wireless
communication. 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 director at his or her address as it appears in the
corporation's current records, with postage prepaid. If written notice is given
other than by mail, and provided that such notice is in a comprehensible form,
the notice is given and effective at the earliest of: (i) the date received;
(ii) five days after mailing; or (iii) the date shown on the return receipt, if
mailed by registered or certified mail, return receipt requested, and the
receipt is signed by or on behalf of the addressee.
A director entitled to notice of a meeting may waive notice of a
meeting before or after the time and date of the meeting stated in the notice by
a writing signed by such director. Such waiver shall be delivered to the
corporation for filing with the corporate records, but such delivery and filing
shall not be conditions to the effectiveness of the waiver. Further, a
director's attendance at or participation in a meeting waives any required
notice to him or her of the meeting unless at the beginning of the meeting or
promptly upon his or her later 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 3.7 QUORUM. A quorum for the transaction of business at any
meeting of the Board of Directors shall consist of one-half of the directors in
office immediately before the meeting begins.
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Section 3.8 MANNER OF ACTING. The affirmative vote of a majority of the
directors present shall be required for the taking of any action by the Board of
Directors.
Section 3.9 INFORMAL ACTION BY DIRECTORS OR COMMITTEE MEMBERS. 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 or of the members of the committee, as the
case may be. 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 time or date,
action taken under this Section is effective at the time or date the last
director signs a writing describing the action taken, unless, before such time,
any director has revoked his or her consent by a writing signed by the director
and received by the President of the Secretary of the corporation.
Section 3.10 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
by, or conduct the meeting through the use of, any means of communication by
which all directors participating in the meeting may 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 3.11 VACANCIES. Any vacancy on the Board of Directors,
including a vacancy resulting from an increase in the number 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 shareholders' meeting at which directors are elected. If elected by
the shareholders, the director shall hold office for the unexpired term of his
or her 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 the office for the unexpired term of the last
predecessor elected by the shareholders.
If the vacant office was held by a director elected by a voting group
of shareholders, only the holders of shares of that voting group are entitled to
vote to fill the vacancy if it is filled by the shareholders, and, if one or
more of the remaining directors were elected by the same voting group, only such
directors are entitled to vote to fill the vacancy if it is filled by the
directors.
Section 3.12 RESIGNATION. Any director of the corporation may resign at
any time by giving written notice to the corporation. The resignation of any
director shall take effect upon receipt by the corporation of notice thereof or
at such later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective. When one or more directors shall resign from the board,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or resignations
shall become effective.
Section 3.13 REMOVAL. Subject to any limitations contained in the
Articles of Incorporation, any director or directors of the corporation may be
removed at any time, with or without cause, in the manner provided in the
General Corporation Law of Nevada. Any director may be removed by the
shareholders of the voting group that elected the director with or without
cause, only at a meeting called for that purpose. The notice of the meeting
shall state that the purpose of one or the purposes of the meeting is removal of
the director. A director may be removed only if the number of votes cast in
favor of removal exceeds the number of votes cast against removal.
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Section 3.14 COMMITTEES. By resolution adopted by a majority of the
Board of Directors in office at the time, the directors may designate one or
more directors to constitute a committee, any of which shall have such authority
in the management of the corporation as the Board of Directors shall designate
and as shall be prescribed by the General Corporation Law of Nevada and Article
XI of these Bylaws.
Section 3.15 COMPENSATION. By resolution of the Board of Directors and
irrespective of any personal interest of any of the members or the Board of
Directors, each director may be paid his or her expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a stated salary as
director or a fixed sum for attendance at each meeting of the Board of Directors
or both. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 3.16 PRESUMPTION OF ASSENT. A director of the corporation who
is present at a meeting of the Board of Directors or committee of the board when
action on any corporate matter is taken shall be presumed to have assented to
all action taken unless (i) the director objects at the beginning of the
meeting, or promptly upon his or her 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 or her 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 or her 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 Directors or
a committee of the board shall not be available to a director who voted in favor
of such action.
ARTICLE IV
OFFICERS
Section 4.1 NUMBER. The officers of the corporation shall be a
President, a Secretary, and a Treasurer, each of whom must be a natural person
who is eighteen years or older and shall be elected by the Board of Directors.
Such other officers and assistant officers as may be deemed necessary may be
appointed by the Board of Directors by resolution. Any two or more offices may
be held by the same person.
Section 4.2 ELECTION AND TERM OF OFFICE. The officers of the
corporation to be appointed by the Board of Directors shall be appointed
annually by the Board of Directors at the first meeting of the Board of
Directors held after the annual meeting of the shareholders. If the appointment
of officers shall not be held at such meeting, such appointment shall be held as
soon thereafter as practicable. Each officer shall hold office until his or her
successor shall have been duly appointed and shall have qualified or until his
or her death or until he or she shall resign or shall have been removed in the
manner hereinafter provided.
Section 4.3 REMOVAL AND RESIGNATION. Any officer or agent may be
removed by the Board of Directors at any time, with or without cause, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed or to the corporation. Appointment of an officer or agent shall not
of itself create contract rights.
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An officer or agent 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.
If a resignation is made effective at a later date, the Board of Directors 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 provides
that the successor does not take office until the effective date, or the Board
of Directors may remove the officer at any time before the effective date and
may fill the resulting vacancy. An officer's resignation does not affect the
corporation's contract rights, if any, with the officer.
Section 4.4 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification, or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
Section 4.5 PRESIDENT. The President shall, subject to the control of
the Board of Directors, supervise and control all of the day-to-day business and
affairs of the corporation. He or she may sign, with the Secretary or any other
proper officer of the corporation thereunto authorized by the Board of
Directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
Bylaws to some other officer or agent of the corporation or shall be required by
law to be otherwise signed or executed; and in general shall perform all duties
incident to the office of President and such other duties as may be prescribed
by the Board of Directors from time to time.
Section 4.6 CHIEF EXECUTIVE OFFICER. The corporation shall have a Chief
Executive Officer (CEO). He or she shall, when present, and in the absence of a
Chairman of the Board, preside at all meetings of the shareholders and of the
Board of Directors; and in general shall perform all duties incident to the
office of the Chief Executive Officer and such other duties as may be prescribed
by the Board of Directors from time to time.
Section 4.7 VICE PRESIDENT. If appointed by the Board of Directors, the
Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated at the time of their appointment, or in the
absence of any designation, then in the order of their election) shall, in the
absence of the President or in the event of his or her death, inability or
refusal to act, perform all duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice President may sign, with the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, certificates for shares of
the corporation; and shall perform such other duties as from time to time may be
assigned to him or her by the President or by the Board of Directors.
Section 4.8 SECRETARY. The Secretary shall: (a) 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 and meetings of shareholders
and of the Board of Directors or any committee thereof, (b) ensure that all
notices are duly given in accordance with the provisions of these Bylaws and as
required by law, (c) 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, (d) 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 voting
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,
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(e) 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 names 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 reasonable
detail the corporation's assets and liabilities and results of operations for
the last three years, (f) have general charge of the stock transfer books of the
corporation, unless the corporation has a transfer agent, (g) authenticate
records of the corporation, and (h) 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 or her 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 4.9 TREASURER. The Treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; (b)
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever and deposit all such moneys in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected in
accordance with the provisions of Article V of these Bylaws; and (c) in general
perform all of the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him or her by the President or by
the Board of Directors.
Section 4.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries, when authorized by the Board of Directors, may sign with
the Chairman of the Board of Directors or the President or a Vice President
certificates for shares of the corporation the issuance of which shall have been
authorized by a resolution of the Board of Directors. The Assistant Secretaries
and Assistant Treasurers, in general, shall perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
President or the Board of Directors.
Section 4.11 BONDS. If the Board of Directors by resolution shall so
require, any officer or agent of the corporation shall give bond to the
corporation in such amount and with such surety as the Board of Directors may
deem sufficient, conditioned upon the faithful performance of their respective
duties and offices.
Section 4.12 SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a director of
the corporation.
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ARTICLE V
CONTRACTS, LOANS, CHECKS, AND DEPOSITS
Section 5.1 CONTRACTS. The Board of Directors may authorize any
officer, officers, agent, or agents to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation and such
authority may be general or confined to specific instances.
Section 5.2 LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 5.3 CHECKS, DRAFTS, ETC. All checks, drafts, or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer, officers, agent, or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 5.4 DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies, or other depositories as the Board of Directors
may select.
ARTICLE VI
SHARES, CERTIFICATES FOR SHARES
AND TRANSFER OF SHARES
Section 6.1 REGULATION. The Board of Directors may make such rules and
regulations as it may deem appropriate concerning the issuance, transfer, and
registration of certificates for shares of the corporation, including the
appointment of transfer agents and registrars.
Section 6.2 SHARES WITHOUT CERTIFICATES. Unless otherwise provided by
the Articles of Incorporation or these Bylaws, the Board of Directors may
authorize the issuance of any of its classes or series of shares without
certificates. Such authorization shall not affect shares already represented by
certificates until they are surrendered to the corporation.
Within a reasonable time following the issue or transfer of shares
without certificates, the corporation shall send the shareholder a complete
written statement of the information required on certificates by the General
Corporation Law of Nevada.
Section 6.3 CERTIFICATES FOR SHARES. If shares of the corporation are
represented by certificates, the certificates shall be respectively numbered
serially for each class of shares or series thereof, as they are issued, shall
be impressed with the corporate seal or a facsimile thereof, and shall be signed
by the Chairman of the Board of Directors or by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or by the Secretary or
an Assistant Secretary; provided that such signatures may be in facsimile if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. If the person who signed,
either manually or in facsimile, a share certificate no longer holds office when
the certificate is issued, the certificate is nevertheless valid. Each
certificate shall state on its face the name of the corporation, the fact that
the corporation is organized or incorporated under the laws of the State of
Nevada, the name of the person to whom issued, the date of issue, the class (or
series of any class), and the number and class of shares and the designation of
the series, if any, represented thereby. A statement of the designations,
preferences,
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qualifications, limitations, restrictions, and special or relative rights of the
shares of each class shall be set forth in full or summarized on the face or
back of the certificates which the corporation shall issue, or in lieu thereof,
the certificate may set forth that such a statement or summary will be furnished
to any shareholder upon request without charge. Each certificate shall be
otherwise in such form as may be prescribed by the Board of Directors and as
shall conform to the rules of any stock exchange on which the shares may be
listed.
The corporation shall not issue certificates representing fractional
shares and shall not be obligated to make any transfers creating a fractional
interest in a share of stock. The corporation may, but shall not be obligated
to, issue scrip in registered or bearer form in lieu of any fractional shares,
such scrip to have terms and conditions specified by the Board of Directors
consistent with the requirements of the General Corporation Law of Nevada.
Section 6.4 CANCELLATION OF CERTIFICATES. All certificates surrendered
to the corporation for transfer shall be canceled, and no new certificates shall
be issued in lieu thereof until the former certificate for a like number of
shares shall have been surrendered and canceled, except as herein provided with
respect to lost, stolen, or destroyed certificates.
Section 6.5 LOST, STOLEN, OR DESTROYED CERTIFICATES. Any shareholder
claiming that his or her certificate for shares is lost, stolen, or destroyed
may make an affidavit or affirmation of that fact and lodge the same with the
Secretary of the corporation, accompanied by a signed application for a new
certificate. Thereupon, and upon the giving of a satisfactory bond of indemnity
to the corporation not exceeding an amount double the value of the shares as
represented by such certificate (the necessity for such bond and the amount
required to be determined by the President and Treasurer of the corporation), a
new certificate may be issued of the same tenor and representing the same
number, class and series of shares as were represented by the certificate
alleged to be lost, stolen, or destroyed.
Section 6.6 TRANSFER OF SHARES. Subject to the terms of any shareholder
agreement relating to the transfer of shares or other transfer restrictions
contained in the Articles of Incorporation or authorized therein, shares of the
corporation shall be transferable on the books of the corporation by the holder
thereof in person or by his or her duly authorized attorney, upon the surrender
and cancellation of a certificate or certificates for a like number of shares.
Upon presentation and surrender of a certificate for shares properly endorsed
and payment of all taxes therefor, the transferee shall be entitled to a new
certificate or certificates in lieu thereof. As against the corporation, a
transfer of shares can be made only on the books of the corporation and in the
manner hereinabove provided, and the corporation shall be entitled to treat the
holder of record of any share as the owner thereof and shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, save as expressly provided by the statutes of the State of Nevada.
Section 6.7 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 "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.
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ARTICLE VII
FISCAL YEAR
The Board of Directors may, by resolution, adopt a fiscal year for this
Corporation.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may from time to time declare, and the
corporation may pay, distributions on its outstanding shares in the manner and
upon the terms and conditions provided by the General Corporation Law of Nevada
and its Articles of Incorporation.
ARTICLE IX
CORPORATE SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the corporation
and the state of incorporation and the words "CORPORATE SEAL."
ARTICLE X
AMENDMENTS
The Board of Directors shall have power, to the maximum extent
permitted by the General Corporation Law of Nevada, 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.
ARTICLE XI
COMMITTEES
Section 11.1 APPOINTMENT. The Board of Directors by resolution adopted
by a majority of the full Board, may designate one or more committees, which, to
the extent provided in the resolution or resolutions or in these Bylaws, have
and may exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation. The designation of such Committee and
the delegation thereto of authority shall not operate to relieve the Board of
Directors or any member thereof of any responsibility imposed by law.
Section 11.2 NAME. The committee or committees must have such name or
names as may be stated in these Bylaws or as may be determined from time to time
by resolution adopted by the Board of Directors.
Section 11.3 MEMBERSHIP. Each committee must include at least one
director. Unless the Articles of Incorporation or these Bylaws provide
otherwise, the Board of Directors may appoint natural persons who are not
directors to serve on committees.
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Section 11.4 MEETINGS. Regular meetings of a committee may be held
without notice at such time and places as the committee may fix from time to
time by resolution. Special meetings of a committee may be called by any member
thereof upon not less than one day's notice stating the place, date and hour of
the meeting. Notice shall be given personally or by mail, private carrier,
telegraph, teletype, electronically transmitted facsimile or other form of wire
or wireless communication. 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 director at his or her address as it appears in
the corporation's current records, with postage prepaid. If written notice is
given other than by mail, and provided that such notice is in a comprehensible
form, the notice is given and effective at the earliest of: (i) the date
received; (ii) five days after mailing; or (iii) the date shown on the return
receipt, if mailed by registered or certified mail, return receipt requested,
and the receipt is signed by or on behalf of the addressee. Any member of a
committee may waive notice of any meeting and no notice of any meeting need be
given to any member thereof who attends in person. The notice of a meeting of a
committee need not state the business proposed to be transacted at the meeting.
Section 11.5 QUORUM. A majority of the members of a committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
action of a committee must be authorized by the affirmative vote of a majority
of the members present at a meeting at which a quorum is present.
Section 11.6 VACANCIES. Any vacancy in a committee may be filled by a
resolution adopted by a majority of the full Board of Directors.
Section 11.7 RESIGNATIONS AND REMOVAL. Any member of a committee may be
removed at any time with or without cause by resolution adopted by a majority of
the full Board of Directors. Any member of a committee may resign from such
committee at any time by giving written notice to the President or Secretary of
the corporation, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 11.8 PROCEDURE. A committee shall elect a presiding officer
from its members and may fix its own rules of procedure which shall not be
inconsistent with these Bylaws. It shall keep regular minutes of its proceedings
and report the same to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
ARTICLE XII
EMERGENCY BY-LAWS
The Emergency Bylaws provided in this Article XII shall be operative
during any emergency in the conduct of the business of the corporation resulting
from a catastrophic event that prevents the normal functioning of the offices of
the Corporation, notwithstanding any different provision in the preceding
articles of the Bylaws or in the Articles of Incorporation of the corporation or
in the General Corporation Law of Nevada. To the extent not inconsistent with
the provisions of this Article, the Bylaws provided in the preceding articles
shall remain in effect during such emergency and upon its termination the
Emergency Bylaws shall cease to be operative.
During any such emergency:
(a) A meeting of the Board of Directors may be called by any
officer or director of the corporation. Notice of the time and place of
the meeting shall be given by the person calling the meeting to such of
the directors as it may be feasible to reach by any available means of
communication. Such notice shall be given at such time in advance of
the meeting as circumstances permit in the judgment of the person
calling the meeting.
- --------------------------------------------------------------------------------
BYLAWS - FORLINK SOFTWARE CORPORATION, INC. Page 16 of 18
<PAGE> 17
(b) At any such meeting of the Board of Directors, a quorum
shall consist of the number of directors in attendance at such meeting.
(c) The Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the principal office
or designate several alternative principal offices or regional offices
or authorize the officers so to do.
(d) The Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of
succession in the event that during such an emergency any or all
officers or agents of the corporation shall for any reason be rendered
incapable of discharging their duties.
(e) No officer, director, or employee acting in accordance
with these Emergency Bylaws shall be liable except for willful
misconduct.
(f) These Emergency Bylaws shall be subject to repeal or
change by further action of the Board of Directors or by action of the
shareholders, but no such repeal or change shall modify the provisions
of the next preceding paragraph with regard to action taken prior to
the time of such repeal or change. Any amendment of these Emergency
Bylaws may make any further or different provision that may be
practical and necessary for the circumstances of the emergency.
[Certification Page Follows]
- --------------------------------------------------------------------------------
BYLAWS - FORLINK SOFTWARE CORPORATION, INC. Page 17 of 18
<PAGE> 18
CERTIFICATE
I hereby certify that the foregoing Bylaws, consisting of eighteen (18)
pages, including this page, constitute the Bylaws of Forlink Software
Corporation, Inc., adopted by the Board of Directors of the Corporation as of
April 17, 2000.
/s/ Zhang Jie
------------------------
Zhang Jie, Secretary
- --------------------------------------------------------------------------------
BYLAWS - FORLINK SOFTWARE CORPORATION, INC. Page 18 of 18
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<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM A FORM
10-QSB FOR THE QUARTER ENDED MARCH 31, 2000 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FORM 10-QSB.
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<PERIOD-TYPE> 3-MOS
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<SECURITIES> 0
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<ALLOWANCES> 0
<INVENTORY> 60,581
<CURRENT-ASSETS> 0
<PP&E> 111,037
<DEPRECIATION> 0
<TOTAL-ASSETS> 1,291,663
<CURRENT-LIABILITIES> 1,012,242
<BONDS> 0
0
0
<COMMON> 25,000
<OTHER-SE> 254,421
<TOTAL-LIABILITY-AND-EQUITY> 1,291,663
<SALES> 212,107
<TOTAL-REVENUES> 212,107
<CGS> 90,089
<TOTAL-COSTS> 51,793
<OTHER-EXPENSES> 62,415
<LOSS-PROVISION> 0
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<INCOME-TAX> 0
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