Exhibit 3.3
BY-LAWS
of
PLUG POWER INC.
ARTICLE I
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Stockholders
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Section 1. Annual Meeting. The Annual Meeting of Stockholders shall be
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held each year at the place, date and time determined by the Board of Directors.
The purposes for which the annual meeting is to be held, in addition to those
prescribed by law, by the Certificate of Incorporation or by these By-laws, may
be specified by the Board of Directors or the Chief Executive Officer and
President. If no annual meeting has been held on the date fixed above, a
special meeting in lieu thereof may be held, and such special meeting shall
have, for the purposes of these By-laws or otherwise, all the force and effect
of an annual meeting.
Section 2. Special Meetings. Special meetings of the stockholders may be
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called at any time by the Chief Executive Officer and President or the Board of
Directors.
Section 3. Notice of Meetings. A written notice stating the place, date
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and hour of the Annual Meeting of Stockholders shall be given by the Secretary
(or other person authorized by these By-laws or by law) not less than ten, nor
more than sixty, days before the meeting to each stockholder entitled to vote
thereat, and to each stockholder who, under the Certificate of Incorporation or
under these By-laws, is entitled to such notice, by delivering such notice to
him or by mailing it, postage prepaid, and addressed to such stockholder at his
address as it appears in the records of the Corporation. Notice need not be
given to a stockholder if a written waiver of notice is executed before or after
the meeting by such stockholder, if communication with such stockholder is
unlawful, or if such stockholder attends the meeting in question, unless such
attendance was for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting was not lawfully
called or convened.
Notice of Special Meetings shall be given in the same manner as provided
for Annual Meetings, except that the written notice of Special Meetings shall
state clearly and briefly the purpose or purposes for which the meeting is
called. Only such purposes shall be considered or dealt with at Special
Meetings.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the stockholders need be specified in the written waiver
of notice.
If a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 4. Quorum. The holders of a majority in interest of all stock
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issued, outstanding and entitled to vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present.
Section 5. Voting and Proxies. Stockholders shall have one vote for each
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share of stock entitled to vote owned by them of record according to the books
of the corporation unless otherwise provided by law or by the Certificate of
Incorporation. Stockholders may vote either in person or by written proxy, but
no proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. Proxies shall be filed with the
Secretary of the meeting, or of any adjournment thereof. Except as otherwise
limited therein, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting. A proxy purporting to be executed by, or on
behalf of, a stockholder shall be deemed valid unless challenged at or prior to
its exercise, and the burden of proving invalidity shall rest on the challenger.
Section 6. Action at Meeting. When a quorum is present, any matter before
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the meeting shall be decided by vote of the holders of a majority of the shares
of stock voting on such matter except where a larger vote is required by law, by
the Certificate of Incorporation or by these By-laws. Any election by
stockholders shall be determined by a plurality of the votes cast, except where
a larger vote is required by law, by the Certificate of Incorporation or by
these By-laws. No ballot shall be required for any election. The Corporation
shall not directly or indirectly vote any share of its own stock; provided,
however, that the Corporation may vote shares which it holds in a fiduciary
capacity to the extent permitted by law.
Section 7. Action Without a Meeting. Any action required or permitted by
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law to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
all outstanding shares of stock entitled to vote thereon.
Section 8. Stockholder Lists. The Secretary (or the corporation's
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transfer agent or other person authorized by these By-laws or by law) shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
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ARTICLE II
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Directors
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Section 1. Powers. The business of the Corporation shall be managed by or
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under the direction of a Board of Directors that may exercise all the powers of
the Corporation except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws. In the event of a vacancy in the Board of
Directors, the remaining Directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
Section 2. Number; Election and Qualification. The number of Directors
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shall be not less than one (1) nor more than seven (7). At each Annual Meeting,
the stockholders shall fix the number of Directors, and shall elect not more
than the number so designated. No Director need be a stockholder.
Section 3. Vacancies; Reduction of Board. Any vacancy in the Board of
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Directors, however occurring, including a vacancy resulting from the enlargement
of the Board of Directors, may be filled by the stockholders or by the Directors
then in office or by a sole remaining Director. In lieu of filling any such
vacancy, the stockholders or Board of Directors may reduce the number of
Directors, but not to a number less than the minimum number required by Section
2 of this Article II. When one or more Directors shall resign from the Board of
Directors, 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 4. Enlargement of the Board. The Board of Directors may be
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enlarged by the stockholders at any meeting or by vote of a majority of the
Directors then in office.
Section 5. Tenure. Except as otherwise provided by law, by the
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Certificate of Incorporation or by these By-laws, Directors shall hold office
for one year or until their successors are elected and qualified or until their
earlier resignation or removal. Any Director may resign by delivering his
written resignation to the Corporation. Such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event.
Section 6. Removal. A Director may be removed from office with or without
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cause by vote of the holders of a majority of the shares of stock entitled to
vote in the election of Directors.
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Section 7. Meetings. The regular Annual Meeting of the Board of Directors
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shall be held immediately after the close of the Annual Meeting of the
Stockholders. No notice shall be required for this meeting. Other regular
meetings of the Board of Directors may be held without notice at such time, date
and place as the Board of Directors may from time to time determine. Special
meetings of the Board of Directors may be called, orally or in writing, by the
Chief Executive Officer and President designating the time, date and place
thereof. Any matter of business which may properly come before the Board of
Directors may be transacted at either a regular or special meeting thereof.
Directors may participate in meetings of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other, and participation in
a meeting in accordance herewith shall constitute presence in person at such
meeting.
Section 8. Notice of Meetings. Notice of the time, date and place of all
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special meetings of the Board of Directors shall be given to each Director by
the Secretary or Assistant Secretary, or in case of the death, absence,
incapacity or refusal of such persons, by the Chief Executive Officer and
President. Notice shall be given to each Director in person or by telephone or
by telegram sent to his business or home address at least twenty-four hours in
advance of the meeting, or by written notice mailed to be business or home
address at least forty-eight hours in advance of the meeting. Notice need not
be given to any Director if a written waiver of notice is executed by him before
or after the meeting, or if communications with such Director is unlawful, or if
all of the Directors are present at the meeting. A notice or waiver of notice
of a meeting of the Board of Directors need not specify the purpose of the
meeting.
Section 9. Quorum. At any meeting of the Board of Directors, a majority
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of the Directors then in office shall constitute a quorum. Less than a quorum
may adjourn any meeting from time to time and the meeting may be held as
adjourned without further notice.
Section 10. Action at Meeting. At any meeting of the Board of Directors
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at which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless a larger number is required
by law, by the Certificate of Incorporation or by these By-laws.
Section 11. Action by Consent. Any action required or permitted to be
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taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing, and the
writing or writings are filed with the minutes of the Board of Directors. Such
consent shall be treated as a vote of the Board of Directors for all purposes.
Section 12. Committees. The Board of Directors, by vote of a majority of
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the Directors then in office, may elect from its number one or more committees,
including an Executive Committee and an Audit Committee, and may delegate
thereto some or all of its powers except those which by law, by the Certificate
of Incorporation, or by these By-laws may not be delegated. Except as the Board
of Directors may otherwise determine, any such
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committee may make rules for the conduct of its business, but unless otherwise
provided by the Board of Directors or in such rules, its business shall be
conducted so far as possible in the same manner as is provided by these By-laws
for the Board of Directors. All members of such committees shall hold such
offices at the pleasure of the Board of Directors. The Board of Directors may
abolish any such committee at any time. Any committee to which the Board of
Directors delegates any of its powers or duties shall keep records of its
meetings and shall report its action to the Board of Directors. The Board of
Directors shall have power to rescind any action of any committee, but no such
rescission shall have retroactive effect.
ARTICLE III
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Officers
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Section 1. Enumeration. The officers of the Corporation shall consist of
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a Chief Executive Officer and President, a Secretary, a Treasurer, and such
other officers, including one or more Vice-Presidents, Assistant Secretaries,
and Assistant Treasurers, as the Board of Directors may determine.
Section 2. Election. At its Annual Meeting, the Board of Directors shall
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elect the Chief Executive Officer and President, the Secretary, and the
Treasurer. Other officers may be chosen by the Board of Directors at such
meeting or any other meeting.
Section 3. Qualification. No officer need be a stockholder. No officer
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need be a Director. Any person may occupy more than one office of the
Corporation at any time. Any officer may be required by the Board of Directors
to give bond for the faithful performance of his duties in such amount and with
such sureties as the Board of Directors may determine.
Section 4. Tenure. Except as otherwise provided by the Certificate of
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Incorporation or by these By-laws, each of the officers of the Corporation shall
hold his office for one year or until his successor is elected and qualified or
until his earlier resignation or removal. Any officer may resign by delivering
his written resignation to the Corporation, and such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Section 5. Removal. The Board of Directors may remove any officer with or
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without cause by a vote of a majority of the entire number of Directors then in
office; provided, that if an officer is to be removed for cause, he may only be
removed after reasonable notice and an opportunity to be heard by the Board of
Directors.
Section 6. Vacancies. Any vacancy in any office may be filled for the
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unexpired portion of the term by the Board of Directors.
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Section 7. Chief Executive Officer and President. The Chief Executive
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Officer and President shall be the chief executive officer of the corporation
and shall, subject to the direction of the Board of Directors, have general
supervision and control of its business. Unless otherwise provided by the Board
of Directors, he shall preside, when present, at all meetings of stockholders
and of the Board of Directors.
Section 8. Vice-Presidents. Any Vice-President shall have such powers and
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shall perform such duties as the Board of Directors may from time to time
designate.
Section 9. Treasurer and Assistant Treasurers. The Treasurer shall,
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subject to the direction of the Board of Directors, have general charge of the
financial affairs of the Company and shall cause to be kept accurate books of
account. He shall have custody of all funds, securities, and valuable documents
of the Corporation, except as the Board of Directors may otherwise provide.
Any Assistant Treasurer shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 10. Secretary and Assistant Secretaries. The Secretary shall
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record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose.
In his absence from any such meeting, a temporary secretary chosen at the
meeting shall record the proceedings thereof. The Secretary shall have charge of
the stock ledger (which may, however, be kept by any transfer or other agent of
the Corporation). He shall have custody of the seal of the Corporation, and he,
or an Assistant Secretary, shall have authority to affix it to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature.
He shall have such other duties and powers as may be designated from time to
time by the Board of Directors or the Chief Executive Officer and President.
Any Assistant Secretary shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 11. Other Powers and Duties. Subject to these By-laws and to such
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limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors.
ARTICLE IV
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Capital Stock
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Section 1. Certificates of Stock. Each stockholder shall be entitled to a
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certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the
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Board of Directors. Such certificate shall bear the Corporation seal and shall
be signed by the Chief Executive Officer and President or a Vice-President and
by the Treasurer or the Secretary. The Corporation seal and the signatures by
Corporation officers may be facsimile if the certificate is manually
countersigned by an authorized person on behalf of a transfer agent or registrar
other than the Corporation or its employee. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed on such
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the time
of its issue. Every certificate for shares of stock which are subject to any
restriction on transfer and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
Section 2. Transfers. Subject to any restrictions on transfer, shares of
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stock may be transferred only on the books of the Corporation by the surrender
to the Corporation or its transfer agent of the certificate therefor properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of
the authenticity of signature as the Corporation or its transfer agent may
reasonably require.
Section 3. Record Holders. Except as may otherwise be required by law, by
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the Certificate of Incorporation or by these By-laws, the Corporation shall be
entitled to treat the record holder of stock as shown on its books as the owner
of such stock for all purposes, including the payment of dividends and the right
to vote with respect thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the Corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the Corporation of his
post office address.
Section 4. Record Date. In order that the Corporation may determine the
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stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. In such case, only stockholders of record on such record date
shall be so entitled, notwithstanding any transfer of stock on the books of the
Corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of
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business on the day next preceding the day on which the meeting is held; (ii)
the record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
is expressed; and (iii) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 5. Replacement of Certificates. In case of the alleged loss,
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destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
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Indemnification of Directors, Officers and Others
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Section 1. Indemnifiable Events; Extent of Indemnification.
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A. The Corporation shall indemnify, to the fullest extent permitted by
the General Corporation Law of the State of Delaware (as presently in effect or
as hereafter amended):
(1) any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action or suit by or in the right of the Company) by reason of the fact
that he is or was a Director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such suit, action or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Corporation and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(2) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a Director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture,
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trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation unless, and only to the extent that, the Court of Chancery
of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
(3) To the extent that a Director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in paragraphs (1) and (2), or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
B. The Board of Directors, in its discretion, may authorize the
Corporation to indemnify:
(1) Any person who was or is a party or is threatened to be made a
party to any threatened pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact that he
is or was an employee or agent of the Corporation, or is or was serving at
the request of the Corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was an employee or agent of the Corporation, or is
or was serving at the request of the Corporation as an employee or agent of
another corporation, partnership, joint venture,
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trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the Corporation unless, and only to the extent that, the Court of Chancery
of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 2. Determination of Entitlement. Any indemnification hereunder
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(unless required by law or ordered by a court) shall be made by the Company only
as authorized in the specific case upon a determination that indemnification of
the Director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in Section 1 of this
Article V. Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders of the
Corporation.
Section 3. Advance Payments. Expenses incurred in defending a civil or
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criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding, only as authorized by
the Board of Directors in the specific case (including by one or more Directors
who may be parties to such action, suit or proceeding), upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article V.
Section 4. Non-Exclusive Nature of Indemnification. The indemnification
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provided herein shall not be deemed exclusive of any other rights to which any
person, whether or not entitled to be indemnified hereunder, may be entitled
under any statute, by-law, agreement, vote of stockholders or Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person. Each
person who is or becomes a Director or officer as aforesaid shall be deemed to
have served or to have continued to serve in such capacity in reliance upon the
indemnity provided for in this Article V.
Section 5. Insurance. The Corporation may purchase and maintain insurance
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on behalf of any person who is or was a Director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability
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asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of the General
Corporation Law of the State of Delaware (as presently in effect or hereafter
amended), the Certificate of Incorporation of the Corporation or these By-laws.
Section 6. No Duplicate Payments. The Corporation's indemnification under
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Section 1 of this Article V of any person who is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall be reduced by any
amounts such person receives as indemnification (i) under any policy of
insurance purchased and maintained on his behalf by the Corporation, (ii) from
such other corporation, partnership, joint venture, trust or other enterprise,
or (iii) under any other applicable indemnification provision.
Section 7. Amendment. This Article V may be amended only so as to have a
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prospective effect. Any amendment to this Article V which would result in any
person having a more limited entitlement to indemnification may be approved only
by the stockholders.
ARTICLE VI
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Transactions with Related Parties
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Section 1. Transactions Not Void. No contract or transaction between the
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Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof,
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors, or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested Directors, even though the disinterested
Directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the shareholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders; or
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(3) The contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified, by the Board of Directors,
a committee thereof, or the shareholders.
Section 2. Quorum. Common or interested Directors may be counted in
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determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 3. Limitation. Nothing herein contained shall protect or purport
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to protect any Director or officer of the Corporation against any liability to
the Corporation or its security holders to which he would otherwise be subject
by reason of his willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of his office.
ARTICLE VII
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Miscellaneous Provisions
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Section 1. Fiscal Year. The fiscal year of the Corporation shall end on
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December 31 of each year.
Section 2. Seal. The Board of Directors shall have power to adopt and
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alter the seal of the Corporation.
Section 3. Execution of Instruments. All deeds, leases, transfers,
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contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chief Executive Officer and
President or the Treasurer.
Section 4. Voting of Securities. Unless the Board of Directors otherwise
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provides, the Chief Executive Officer and President or the Treasurer may waive
notice of and act on behalf of this Corporation, or appoint another person or
persons to act as proxy or attorney in fact for this Corporation with or without
discretionary power and/or power of substitution, at any meeting of stockholders
or shareholders of any other corporation or organization, any of whose
securities are held by this Corporation.
Section 5. Resident Agent. The Board of Directors may appoint a resident
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agent upon whom legal process may be served in any action or proceeding against
the Corporation.
Section 6. Corporate Records. The original or attested copies of the
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Certificate of Incorporation, By-laws and records of all meetings of the
incorporators, stockholders and the Board of Directors and the stock and
transfer records, which shall contain the names of all stockholders, their
record addresses and the amount of stock held by each, shall be kept at the
principal office of the Corporation, at the office of its counsel, or at an
office of its transfer agent.
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Section 7. Certificate of Incorporation. All references in these By-laws
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to the Certificate of Incorporation shall be deemed to refer to the Certificate
of Incorporation of the Corporation, as amended and in effect from time to time.
Section 8. Amendments. These By-laws may be altered, amended or repealed
by the vote of a majority in interest of the stockholders of the Corporation at
any regular or special meeting thereof; or by the vote of a majority of the
Board of Directors at any regular or special meeting thereof, without any action
on the part of the stockholders, unless otherwise provided herein; provided,
that (i) the Board of Directors may not amend or repeal this Section 8 nor may
it amend or repeal any other provision of these By-laws to the extent such
amendment or repeal requires action by the stockholders, and (ii) any amendment
or repeal of these By-laws by the Board of Directors and any provision to these
By-laws adopted by the Board of Directors may be amended or repealed by the
stockholders.
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