Unassociated Document
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
November 25,
2009
CHINA RECYCLING ENERGY
CORPORATION
(Exact
name of registrant as specified in its charter)
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Nevada
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000-12536
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90-0093373
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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Suite
909, Tower B
Chang An
International Building
No. 88
Nan Guan Zheng Jie
Xi An
City, Shan Xi Province
China
710068
(Address
of principal executive offices, including zip code)
(86-29)
8769-1097
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
£ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
£ Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
£ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
£ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
5.03 Amendment to Articles
of Incorporation or Bylaws; Change in Fiscal Year.
On November 25, 2009, the Board of
Directors (the “Board”) of China Recycling Energy Corporation (the “Company”)
adopted amendments to its Bylaws (the “Bylaws”), effective
immediately. Article II of the Bylaws was amended to (i) clarify who
may call special meetings of the stockholders of the Company, (ii) clarify what
business may be conducted at such meetings, and (iii) update the advance notice
provisions regarding stockholder nominations of directors and stockholder
proposals at the annual meetings of stockholders. Article III of the
Bylaws was also amended to set the minimum and maximum number of directors of
the Company and to clarify who may call special meetings of the
Board. Article VI of the Bylaws was amended to comply with rules and
regulations of the Securities and Exchange Commission and The NASDAQ Stock
Market that require listed companies to be eligible to issue shares in either
certificated or uncertificated form by incorporating into Article VI the concept
of uncertificated shares, as well as adding provisions relating to the
administration of such shares. Previously, the Bylaws did not
specifically provide for the issuance of uncertificated shares. A new
Article VII has been added to the Bylaws to clarify the procedures and
circumstances in which the Company will indemnify, advance expenses to and
provide insurance for directors, officers and other employees of the Company in
connection with their service to the Company in such capacity. A copy
of the Bylaws, as amended, is attached to this report as Exhibit 3.1 and is
incorporated herein by reference.
Set forth
below is a description of the specific amendments to the Bylaws:
Article
II
Article
II, Section 2.4 of the Bylaws has been amended to allow special meetings of
stockholders to be called by either (i) the Chairman of the Board, (ii) the
Chief Executive Officer or President, or (iii) the Board. In
addition, Section 2.4 specifically denies stockholders the right to call a
special meeting of stockholders and limits the business to be conducted at such
meetings to that business specified in the notice of the
meeting. Previously, special meetings of stockholders could be called
by the President or the Board or at the request of the holders of at least
thirty percent (30%) of all of the outstanding shares entitled to
vote.
Article
II, Section 2.5 of the Bylaws has been amended to clarify that only such
business shall be conducted at a special meeting of the stockholders of the
Company of which notice has been properly provided and to clarify that any
proper matter for stockholder action may be brought before the meeting by any
stockholder provided that such stockholder has provided notice pursuant to
Section 2.11 of the Bylaws. The Bylaws previously allowed business
not specified in the notice of the meeting to be conducted at the special
meeting if all stockholders were present and consented.
Article
II, Section 2.6 of the Bylaws has been amended to change the definition of a
quorum for any matter at a stockholder meeting. A quorum with regard
to any matter is present under the Section 2.6, as amended, if one-third (33
1/3%) of the holders of shares entitled to vote on that matter are present in
person or by proxy. Previously a quorum was present if 33% of the
holders of shares entitled to vote on the matter were present in person or by
proxy.
Article
II, Section 2.11 of the Bylaws has been adopted to set forth the procedures,
including the notice timing and content requirements, for which a stockholder
may nominate a person for election as a director of the Company and may propose
matters to be considered and voted on by the stockholders at annual and special
meetings of stockholders. In addition to the ability of the Board to
nominate individuals for election as directors and to propose matters to be
considered at stockholder meetings, according to the new Section 2.11, any
stockholder who was a stockholder of record at the time of the notice of such
meetings and who is entitled to vote at the meeting may nominate individuals for
election to the Board (at the annual meeting of stockholders or any special
meeting called for the purpose of electing directors) and may propose matters to
be considered at stockholder meetings (at the annual meeting of stockholders),
provided that the stockholder follows the notice and timing requirements set
forth in Section 2.11. Further, Section 2.11 reserves for the
Chairman of the meeting the power to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the Bylaws. The Bylaws did not previously contain any provisions
analogous to the new Section 2.11.
Article
III
Article
III, Section 3.3 of the Bylaws has been amended to require that there be no more
than eleven (11) and no less than three (3) directors serving on the
Board. Previously, there were no minimum or maximum limits on the
number of directors.
Article
III, Section 3.9 of the Bylaws has been amended to provide that the Chairman of
the Board is entitled to call special meetings of the Board, and not the
President as was the case prior to the amendment, and that the Chairman of the
Board or the Secretary must call a special meeting of the Board at the written
request of at least three (3) directors. Originally, two directors
could cause the President or the Secretary to call a special meeting of the
Board.
Article
VI
Article
VI, Section 6.1 of the Bylaws has been amended to provide that the shares of
stock of the Company may be issued in the form of uncertificated shares, in
addition to certificated shares, upon the adoption of a resolution of the Board
authorizing the issuance of uncertificated shares. In addition,
Section 6.1 was amended to revise the requirements specifying the information to
be retained in the stock ledger to address both certificated and uncertificated
shares and to require the delivery of a notice to holders of uncertificated
shares providing them with information that would otherwise be set forth on a
stock certificate.
Article
VI, Section 6.2 of the Bylaws has been amended to add the ability of the Company
to issue uncertificated shares, in addition to certificated shares, in the event
of the replacement of lost, destroyed or stolen certificates.
Article
VI, Section 6.3 of the Bylaws, which addresses transfers of shares, has been
amended to provide that upon the transfer of shares, either certificated or
uncertificated, the Company can issue either certificated or evidence of
uncertificated shares to the transferee, and further provides for the
cancellation of the old certificate or uncertificated shares and the recording
of the transaction in the Company’s books.
Article
VI, Section 6.4 of the Bylaws has been added to allow the Board to appoint one
or more transfer agents and registrars for the transfer and registration of
certificates of stock or uncertificated shares.
Article
VII
Article
VII, Section 7.01 has been added to clarify whether and when directors, officers
and employees of the Company are entitled to indemnification and/or advancement
of expenses by the Company. Such indemnification is allowed to the
fullest extent permitted by Nevada law (including advancement of expenses) where
such individual is a party to a threatened, pending or completed action, suit or
proceeding by reason of his or her position as a director or officer of the
Company or if he or she was serving as a director, officer, employee, agent,
partner or fiduciary of another enterprise at the request of the
Company. The right to indemnification set forth in Section 7.01
continues after such director or officer ceases to serve in such
capacity. In addition, Section 7.01 allows the Board to determine
whether and to what extent the Company will indemnify other employees or
individuals. Further, Section 7.01 allows the Company to purchase and
maintain insurance on behalf of any director, officer, employee or agent of the
Company for potential liabilities incurred by such individual in his or her
capacity as a director, officer, employee or agent of the Company, and to make
other financial arrangements, including the creation of a trust fund, the
establishment of a program of self insurance and the granting of a
security interest to secure its indemnification obligations. The
previous indemnification and insurance provisions did not specifically address
advancement of expenses, other financial arrangements and related procedural
matters.
Article
VII, Section 7.02 has been added to provide that, notwithstanding any other
provision regarding amendment of the Bylaws generally, any repeal or
modification to Article VII, which is adverse to any director or officer will
only apply prospectively and will not affect such person’s indemnification
rights regarding any action or failure to act occurring prior to the repeal or
amendment. Further, Section 7.02 provides that only an amendment
approved by either the unanimous vote of the then-serving directors of the
Company or the stockholders can limit or reduce the indemnification provided by
Article VII. Prior to the amendment of the Bylaws, directors and
officers did not specifically enjoy any of the protections contained in the new
Section 7.02.
Article
VII, Section 7.03 has been added to clarify that in the event Nevada
law expands the liability of directors or officers or limits the indemnification
rights and rights to advancement of expenses, then all references to Nevada law
shall be references to the law as it existed on November 25, 2009, and if Nevada
law is amended to allow the Company, without further action by the stockholders
or the Board, to further limit the liability of directors or officers or to
provide broader indemnification rights, then such liability shall be limited and
the rights to indemnification and the advancement of expenses shall be broadened
to the extent permitted by the law as amended. This provision is new
and was not specifically addressed in the Bylaws prior to the
amendment.
Item 5.05 Adoption of Code of
Business Conduct and Ethics.
On
November 25, 2009, the Board of the Company adopted a Code of Business Conduct
and Ethics (the “Code of Ethics”) applicable to the Company and all
subsidiaries and entities controlled by the Company and the Company’s directors,
officers and employees. Compliance with the Code is required of all
Company personnel at all times. The Company’s senior management is
charged with ensuring that the Code of Ethics and the Company’s corporate
policies will govern, without exception, all business activities of the
Company. The Code of Ethics addresses, among other things, the use
and protection of Company funds, property and information, avoiding conflicts of
interest, insider trading, compliance with the law, accuracy and retention of
business records, document retention, as well as reporting, enforcement and
compliance procedures. A copy of the Code of Ethics is attached to
this report as Exhibit 14.1 and is incorporated herein by
reference.
Item 8.01 Other
Events.
On
November 25, 2009, in compliance with the listing requirements of The NASDAQ
Stock Market, the Board of the Company adopted charters for the Board’s Audit
Committee, Compensation Committee and Corporate Governance and Nominating
Committee setting forth the rules, policies and procedures governing those
committees. The Board also appointed members to each of those
committees as follows:
Sean Shao
and Julian Ha were appointed as members of the Audit Committee with a third
member to be appointed in the future. Mr. Shao was appointed as
Chairman of the Audit Committee.
Timothy
Driscoll and Mr. Ha were appointed as members of the Compensation
Committee. Mr. Ha was appointed as Chairman of the Compensation
Committee.
Mr. Shao
and Mr. Driscoll were appointed as members of the Corporate Governance and
Nominating Committee. Mr. Driscoll was appointed as Chairman of the
Corporate Governance and Nominating Committee.
On
November 25, 2009, the Board also adopted an Insider Trading Policy to adopt
preventive policies and procedures covering securities trades by the Company’s
personnel and to promote compliance with the federal securities laws and to
protect the Company, as well as certain insiders from liabilities and penalties
that can result from violations of these laws. The Insider Trading
Policy restricts Company Insiders (as defined in the Insider Trading Policy)
from entering into transactions with regard to the stock of the Company or other
firms which the Company transacts business with where such persons know material
nonpublic information about the Company or the other
firm. Additionally, the Insider Trading Policy sets forth specific
procedures that require the Company’s Chief Financial Officer to clear all other
transactions regarding trading of Company stock by
Insiders. Violations of the Insider Trading Policy can result in
sanctions being levied by the Company, including dismissal for
cause.
Item 9.01 Financial Statements and
Exhibits.
The following exhibits are filed with
this report:
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Exhibit No.
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Description
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3.1
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Bylaws
of China Recycling Energy Corporation, as amended.
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14.1
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Code
of Ethics of China Recycling Energy
Corporation.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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China
Recycling Energy Corporation
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Date:
December 1, 2009
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Xinyu
Peng, Chief Financial Officer
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