Exhibit 10.5(a)
Schedule 4.3
------------
None
Schedule 4.5
------------
Joint Development Agreement dated September 24, 1999 between Plug Power, LLC and
Epyx
Joint Development Agreement dated January 12, 2000 between Cellex Power
Products, Inc. and Epyx
Purchase Order from Plug Power to Epyx dated November 10, 1999 for 10kW Multi-
fuel Processor with Supporting Data and Service
Joint Venture Agreement dated December 18, 1998 between H Power Corp. and Xxxxxx
X. Xxxxxx, Inc.
XXX Xxxxxxxx Xx. XX-XX00-00XX00000 dated July 21, 1999 issued to Xxxxxx X.
Xxxxxx, Inc., titled Development of Fuel Processor, Durability Demonstration and
10kW
Subcontract Agreement dated November 21, 1997 between Plug Power, LLC and Xxxxxx
X. Xxxxxx, Inc. under DOE Contract No. DE-FC02-97EE50472
Subcontract Agreement dated January 17, 2000 between Giner, Inc. and Epyx
Purchase Order for Transient Reactor dated February 2000 from Epyx to ZTON-
Altamira Corporation
Excluded Contracts:
"Design of a 50 kW Stationary PEMFC System"
"Design of next generation of PEMFC stacks with clearly superior hydrogen
utilization"
Schedule 4.6
------------
None
Schedule 4.11
-------------
Epyx Balance Sheet
As of December 31, 1999
Adjusted Assign Gov't Adjusted
Balances Receivables Balances
-------------- ------------------ --------------
Assets:
Current Assets:
Cash and Cash Equivalents
Accounts Receivable................................... $ 247,239.4 $454,234.0 $ 701,473.4
Unbilled Services..................................... 156,972.9 156,972.9
Other Current Assets.................................. (3,298.7) (3,298.7)
-------------- --------------
Total Current Assets.................................... 400,913.6 454,234.0 855,147.6
Property and Equipment:
Land
Bldgs. & Leasehold Improvements....................... 339.1 339.1
Equip., Furniture, & Fixtures......................... 516,296.6 516,296.6
-------------- --------------
Property and Equipment................................ 516,635.7 516,635.7
Accumulated Depreciation.............................. (140,068.2) (140,068.2)
-------------- --------------
Net Property and Equipment............................ 376,567.5 376,567.5
-------------- --------------
Total Assets............................................ $ 777,481.0 $454,234.0 $1,231,715.0
============== ================== ==============
Liabilities and Stockholders' Equity:
Current Liabilities:
Accounts Payable...................................... $ 1,878.6 $ 1,878.6
Accrued Compensation.................................. 31,370.1 31,370.1
Other Accrued Expenses................................ (2,354.5) (2,354.5)
-------------- --------------
Total Current Liabilities............................... 30,894.2 30,894.2
Intercompany Receivable/Payable......................... 400,913.6 299,234.0 700,147.6
Total Liabilities
Stockholders' Equity:
Retained Earnings....................................... 345,673.3 155,000.0 500,673.3
-------------- --------------
Total Liabilities and Stockholders' Equity.............. $ 777,481.0 $454,234.0 $1,231,715.0
============== ================== ==============
Schedule 4.15
-------------
MDT Retirement Plan
ESOP - Hired prior to 1-1-99
Investment Plan
ADL Medical Plan - Self funded
Harvard Pilgrim HMO - Insured
Tufts HMO - Insured
ADL Dental Plan - Self funded
ADL Long Term Disability Plan - Self funded
Basic Life Insurance - Insured
Portable Optional Term Life Insurance - Insured
Dependent Life Insurance - Insured
Health Care Spending Account - Self funded
Dependent Care Spending Account - Self funded
Pre-tax Deduction Plan - Self funded
Business Travel Accident Insurance - Insured
Excess Contribution Plan
Stock Incentive Plan
Stock-Based Deferred Incentive Compensation Plan
New ADL Stock Option Plan
Senior Staff Stock Purchase Plan
All of the above plans are maintained and administered by ADL and not by Epyx
Schedule 5.3
------------
Excluded Contracts:
"Design of a 50 kW Stationary PEMFC System"
"Design of next generation of PEMFC stacks with clearly superior hydrogen
utilization"
Exhibit A
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "ADVANCED FUEL PROCESSORS, INC.", CHANGING ITS NAME FROM "ADVANCED FUEL
PROCESSORS, INC." TO "EPYX CORPORATION", FILED IN THIS OFFICE ON THE SEVENTEENTH
DAY OF FEBRUARY, A.D. 1998, AT 10 OCLOCK A.M.
[SEAL OF DELAWARE SECRETARY'S OFFICE] /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Secretary of State
2834471 8100 AUTHENTICATION: 8923349
981059546 DATE: 2-17-98
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ADVANCED FUEL PROCESSORS, INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------
Advanced Fuel Processors, Inc. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware does hereby certify as follows:
That by written consent of the Board of Directors of the Corporation, a
resolution was duly adopted, pursuant to Sections 141(f) and 242 of the General
Corporation Law of the State of Delaware, setting forth an amendment to the
Certificate of Incorporation of the Corporation declaring said amendment to be
advisable. The sole stockholder of the Corporation entitled to vote thereon
approved said proposed amendment by written consent in accordance with Sections
228 and 242 of the General Corporation Law of the State of Delaware. The
resolution setting forth the amendment is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation
-------- (the "Certificate of Incorporation") be and hereby is
amended by deleting Article FIRST in its entirety and
substituting therefor the following:
"FIRST: The name of the Corporation is EPYX Corporation."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its President and Chief Executive Officer this 12th day of February,
1998.
ADVANCED FUEL PROCESSORS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
President
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "ADVANCED FUEL PROCESSORS, INC.", FILED IN THIS OFFICE ON THE
EIGHTEENTH DAY OF DECEMBER, A.D. 1997, AT 12:30 O'CLOCK P.M.
[SEAL OF DELAWARE SECRETARY'S OFFICE] /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Secretary of State
2834471 8100 AUTHENTICATION: 8822484
971436517 DATE: 12-18-97
CERTIFICATE OF INCORPORATION
OF
ADVANCED FUEL PROCESSORS, INC.
FIRST. The name of the Corporation is: Advanced Fuel Processors, Inc.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or promoted
by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, $.O1 par value per
share.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
FIFTH. The name and mailing address of the sole incorporator are as
follows:
NAME MAILING ADDRESS
---- ---------------
Xxxxx X. Face Xxxx and Xxxx
Corporate Paralegal 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend or
repeal the By-Laws of the Corporation.
SEVENTH. Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
EIGHTH. The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of Delaware, as amended from time to time,
indemnify each 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, by reason of the fact that he
is or was, or has agreed to become, a director or officer of the Corporation, or
is or was serving, or has agreed to serve, at the request of the Corporation, as
a director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (all such persons being referred to hereafter as an
"Indemnitee"), or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by or on
behalf of an Indemnitee in connection with such action, suit or proceeding and
any appeal therefrom.
As a condition precedent to his right to be indemnified, the Indemnitee
must notify the Corporation in writing as soon as practicable of any action,
suit, proceeding or investigation involving him for which indemnity will or
could be sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be entitled to
participate therein at its own expense and/or to assume the defense thereof at
its own expense, with legal counsel reasonably acceptable to the Indemnitee.
In the event that the Corporation does not assume the defense of any
action, suit, proceeding or investigation of which the Corporation receives
notice under this Article, the Corporation shall pay in advance of the final
disposition of such matter any expenses (including attorneys' fees) incurred by
an Indemnitee in defending a civil or criminal action, suit, proceeding or
investigation or any appeal therefrom; provided, however, that the payment of
-------- -------
such expenses incurred by an Indemnitee in advance of the final disposition of
such matter shall be made only upon receipt of an undertaking by or on behalf of
the Indemnitee to repay all amounts so advanced in the event that it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
by the Corporation as authorized in this Article, which undertaking shall be
accepted without reference to the financial ability of the Indemnitee to make
such repayment; and further provided that no such advancement of expenses shall
------- --------
be made if it is determined that (i) the Indemnitee did not act in good faith
and in a
manner he reasonably believed to be in, or riot opposed to, the best interests
of the Corporation, or (ii) with respect to any criminal action or proceeding,
the Indemnitee had reasonable cause to believe his conduct was unlawful.
The Corporation shall not indemnify an Indemnitee seeking indemnification
in connection with a proceeding (or part thereof) initiated by such Indemnitee
unless the initiation thereof was approved by the Board of Directors of the
Corporation. In addition, the Corporation, shall not indemnify an Indemnitee to
the extent such Indemnitee is reimbursed from the proceeds of insurance, and in
the event the Corporation makes any indemnification payments to an Indemnitee
and such Indemnitee is subsequently reimbursed from the proceeds of insurance,
such Indemnitee shall promptly refund such indemnification payments to the
Corporation to the extent of such insurance reimbursement.
All determinations hereunder as to the entitlement of an Indemnitee to
indemnification or advancement of expenses shall be made in each instance by (a)
a majority vote of the directors of the Corporation consisting of persons who
are not at that time parties to the action, suit or proceeding in question
("disinterested directors"), whether or not a quorum, (b) a majority vote of a
quorum of the outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of stockholders
who are not at that time parties to the action, suit or proceeding in question,
(c) independent legal counsel (who may, to the extent permitted by law, be
regular legal counsel to the Corporation), or (d) a court of competent
jurisdiction.
The indemnification rights provided in this Article (i) shall not be
deemed exclusive of any other rights to which an Indemnitee may be entitled
under any law, agreement or vote of stockholders or disinterested directors or
otherwise, and (ii) shall inure to the benefit of the heirs, executors and
administrators of the Indemnitees. The Corporation may, to the extent authorized
from time to time by its Board of Directors, grant indemnification rights to
other employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than, those
set forth in this Article.
NINTH. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute and this Certificate of Incorporation, and
all rights conferred upon stockholders herein are granted subject to this
reservation.
EXECUTED at Boston, Massachusetts, on December 18, 1997.
/s/ Xxxxx X. Xxxx
--------------------
Incorporator
Xxxxx X. Xxxx
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, XXXXXX X. XXXXX, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "EPYX CORPORATION", FILED IN THIS OFFICE ON THE THIRTY-FIRST DAY OF MARCH,
A.D. 2000, AT 4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE WAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
[SEAL OF DELAWARE SECRETARY'S OFFICE] /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx X. Xxxxx, Secretary of State
2834471 8100 AUTHENTICATION: 0355725
001166923 DATE: 04-03-00
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EPYX CORPORATION
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
----------------------------------------
Epyx Corporation (hereinafter called the "Corporation"), organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware does hereby certify as follows:
That by written consent of the Board of Directors of the Corporation, a
resolution was duly adopted, pursuant to Sections 141(f) and 242 of the General
Corporation Law of the State of Delaware, setting forth an amendment to the the
Certificate of Incorporation of the Corporation declaring said amendment to be
advisable. The sole stockholder of the Corporation entitled to vote thereon
approved said proposed amendment by written consent in accordance with Sections
228 and 242 of the General Corporation Law of the State of Delaware. The
resolution setting forth the amendment is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation be
and hereby is amended by deleting the first sentence of
Article FOURTH in its entirety and substituting therefor the
following:
"The total number of shares of stock which the Corporation
shall have authority to issue is 2,000,000 shares of Common
Stock, $.01 par value per share."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its President this 31st day of March, 2000.
EPYX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Xxxx X. Xxxxxxx
President
AMENDED AND RESTATED BY-LAWS
OF
EPYX CORPORATION
ARTICLE I - Stockholders
------------------------
1.1 Place of Meetings. All meetings of stockholders shall be held at such
-----------------
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the President or, if not so designated, at
the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
--------------
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors or the President (which date shall not be a legal holiday in the place
where the meeting is to be held) at the time and place to be fixed by the Board
of Directors or the President and stated in the notice of the meeting. If no
annual meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient.
If no annual meeting is held in accordance with the foregoing provisions, a
special meeting may be held in lieu of the annual meeting, and any action taken
at that special meeting shall have the same effect as if it had been taken at
the annual meeting, and in such case all references in these By-Laws to the
annual meeting of the stockholders shall be deemed to refer to such special
meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at any
----------------
time by the President or by the Board of Directors. Business transacted at any
special meeting of stockholders shall be limited to matters relating to the
purpose or purposes stated in the notice of meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written notice
------------------
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all meetings shall
state the place, date and hour of the meeting. The notice of a special meeting
shall state, in addition, the purpose or purposes for which the meeting is
called. If mailed, notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
1.5 Voting List. The officer who has charge of the stock ledger of the
-----------
corporation shall prepare, at least 10 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 10 days prior
to the meeting, at a place within the city 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 of the meeting, and may be inspected by any stockholder who is
present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
------
Incorporation or these By-Laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
1.7 Adjournments. Any meeting of stockholders may be adjourned to any other
------------
time and to any other place at which a meeting of stockholders may be held under
these By-Laws by the stockholders present or represented at the meeting and
entitled to vote, although less than a quorum, or, if no stockholder is present,
by any officer entitled to preside at or to act as Secretary of such meeting. It
shall not be necessary to notify any stockholder of any adjournment of less than
30 days if the time and place of the adjourned meeting are announced at the
meeting at which adjournment is taken, unless after the adjournment a new
record date is fixed for the adjourned meeting. At the adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share
------------------
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided in the
Certificate of Incorporation. Each stockholder of record entitled to vote at a
meeting of stockholders, or to express consent or dissent to corporate action in
writing without a meeting, may vote or express such consent or dissent in person
or may authorize another person or persons to vote or act for him by written
proxy executed by the stockholder or his authorized agent and delivered to the
Secretary of the corporation. No such proxy shall be voted or acted upon after
three years from the date of its execution, unless the proxy expressly provides
for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the holders
-----------------
of shares of stock representing a majority of the votes cast on a matter (or if
there are two or more classes of stock entitled to vote as separate classes,
then in the case of each such class, the holders of shares of stock of that
class representing a majority of the votes cast on a matter) shall decide any
matter to be voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the Certificate of
Incorporation, these By-Laws or that certain Stockholders' Agreement dated as of
April 4, 2000 (as amended, the "Stockholders' Agreement") among XxXxxx New
Energy Investments B.V. ("DN"), Xxxxxx X. Xxxxxx, Inc. ("ADL"), Amerada Xxxx
Corporation ("Hess") and the corporation. When a quorum is present at any
meeting, any election by stockholders shall be determined by a plurality of the
votes cast on the election.
2
1.10 Inspectors
One or more inspectors may be appointed by the Board of Directors before or
at any meeting of stockholders, or, if no such appointment shall have been made,
the presiding officer may make such appointment at the meeting. At the meeting
for which the inspector or inspectors are appointed, he or they shall open and
close the polls, receive and take charge of the proxies and ballots, and decide
all questions touching on the qualifications of voters, the validity of proxies
and the acceptance and rejection of votes. If any inspector previously appointed
shall fail to attend or refuse or be unable to serve, the presiding officer
shall appoint an inspector in his place.
At any time at which the corporation has a class of voting stock that is
(i) listed on a national securities exchange, (ii) authorized for quotation on
an inter-dealer quotation system of a registered national securities
association, or (iii) held of record by more than 2,000 stockholders, the
provisions of Section 231 of the Delaware General Corporation Law with respect
to inspectors of election and voting procedures shall apply, in lieu of the
provisions of the preceding paragraph.
1.11 Action without Meeting. Any action required or permitted to be taken
at any annual or special meeting of stockholders of the corporation may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote on such action were present and voted. Prompt notice of the
taking of corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
ARTICLE 2 - Directors
2.1 General Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law or the
Certificate of Incorporation. 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.
2.2 Number; Election and Qualification. The number of directors which shall
constitute the whole Board of Directors shall be determined by resolution of the
stockholders or the Board of Directors, but in no event shall be less than one.
The number of directors may be decreased at any time and from time to time
either by the stockholders or by a majority of the directors then in office, but
only to eliminate vacancies existing by reason of the death, resignation,
removal or expiration of the term of one or more directors. The directors shall
be elected at the annual meeting of stockholders by such stockholders as have
the right to vote on such election, provided that as long as the Stockholders'
Agreement is in effect, the corporation
3
shall nominate the directors designated by DN, ADL and Hess for election as
directors of the corporation. Directors need not be stockholders of the
corporation.
2.3 Enlargement of the Board. The number of directors may be increased at
any time and from time to time by the stockholders or by a majority of the
directors then in office.
2.4 Tenure. Each director shall hold office until the next annual meeting
and until his successor is elected and qualified, or until his earlier death,
resignation or removal.
2.5 Vacancies. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from an
enlargement of the Board, may be filled by vote of a majority of the directors
then in office, although less than a quorum, or by a sole remaining director,
except as otherwise provided in the Stockholders' Agreement. A director elected
to fill a vacancy shall be elected for the unexpired term of his predecessor in
office, and a director chosen to fill a position resulting from an increase in
the number of directors shall hold office until the next annual meeting of
stockholders and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
2.6 Resignation. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. 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.
2.7 Regular Meetings. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.8 Special Meetings. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President, two or more directors
(provided that at least two directors are directors who have been designated by
different stockholders), or by one director in the event that there is only a
single director in office.
2.9 Notice of Special Meetings. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
by giving notice to such director in person or by telephone at least seven (7)
business days in advance of the meeting, (ii) by sending a telegram or telex, or
delivering written notice by hand, to his last known business or home address at
least seven (7) business days in advance of the meeting, or (iii) by mailing
written notice to his last known business or home address at least seven (7)
business days in advance of the meeting. A notice or waiver of notice of a
meeting of the Board of Directors need not specify the purposes of the meeting.
4
2.10 Meetings by Telephone Conference Calls. Directors or any members of
any committee designated by the directors may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
2.11 Quorum. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors, provided
that for so long as the Stockholders' Agreement is in effect, four (4) directors
shall constitute a quorum, at least two of which shall be directors designated
by DN, and two of which shall be directors designated by ADL. In the event one
or more of the directors shall be disqualified to vote at any meeting, then the
required quorum shall be reduced by one for each such director so disqualified;
provided, however, that in no case shall less than one-third (1/3) of the
number so fixed constitute a quorum. In the absence of a quorum at any such
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice other than announcement at the meeting, until a
quorum shall be present.
2.12 Action at Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
2.13 Actions Requiring Special Board Approval.
(a) Without the prior approval of the Required Percentage (as defined
below) of the Board of Directors, acting by resolution at a duly called regular
or special meeting of the Board or acting by written consent, the corporation
shall not:
(i) merge or consolidate the corporation with any other Person (as
defined below), or sell, assign, lease or otherwise dispose of or
voluntarily part with the control of (whether in one transaction or in a
series of transactions) all, or substantially all, of its assets or capital
stock (whether now owned or hereinafter acquired) or sell, assign or
otherwise dispose of (whether in one transaction or in a series of
transactions) any asset or group of assets which is material to the
business or operations of the corporation, or agree to do any of the
foregoing, except for sales or other dispositions of assets in the ordinary
course of business;
(ii) amend the Certificate of Incorporation or By-laws of the
corporation;
(iii) sell or issue to any Person any capital stock of the corporation
except pursuant to the Stockholders' Agreement or any approved stock option
or other equity participation plan, or agree to do either of the foregoing;
5
(iv) redeem, purchase or otherwise acquire for value any common stock
or any other capital stock the corporation except for repurchases of common
stock pursuant to the terms of any approved stock option or other equity
participation plan within the normal operation of such plan, or agree to do
any of the foregoing;
(v) declare or pay any dividend on any capital stock of the
corporation;
(vi) liquidate, dissolve or commence proceedings in bankruptcy;
(vii) approve the operating plan of the corporation; or
(viii) designate the individual to represent the corporation in the
shareholders meeting of XxXxxx Fuel Cells, S.p.A. and the instructions to
be granted to such representative to vote at such meeting.
(b) For purposes of this Section 2.13, "Required Percentage" shall mean:
(i) seventy-five percent (rounded up to the nearest whole number) of the Board
as long as the number of directors on the Board is eight (8) or less and (ii)
sixty-six and two-thirds percent (rounded up to the nearest whole number) of the
Board as long as the number of directors on the Board is nine (9) or more. For
purposes of this Section 2.13, "Person" means an individual, a corporation, an
association, a partnership, a limited liability company, an estate, a trust, and
any other entity or organization, governmental or otherwise.
2.14 Action by Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.15 Removal. Except as otherwise provided by the General Corporation Law
of Delaware or by the Stockholders, Agreement, any one or more or all of the
directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors, except that the
directors elected by the holders of a particular class or series of stock may be
removed without cause only by vote of the holders of a majority of the
outstanding shares of such class or series.
2.16 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation
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Law of the State of Delaware, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation and may authorize the seal of the corporation to be
affixed to all papers which may require it. Each such committee shall keep
minutes and make such reports as the Board of Directors may from time to time
request. Except as the Board of Directors may otherwise determine, any committee
may make rules for the conduct of its business, but unless otherwise provided by
the directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these By-Laws for the Board of
Directors.
2.17 Compensation of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE 3 - Officers
3.1 Enumeration. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice-Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote choosing or appointing him, or until his earlier death, resignation or
removal.
3.5 Resignation and Removal. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the
President or Secretary. 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.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
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Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his resignation or removal, or any right to damages on
account of such removal, whether his compensation be by the month or by the year
or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of President, Treasurer and
Secretary. Each such successor shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
3.7 Chairman of the Board and Vice-Chairman of the Board. The Board of
Directors may appoint a Chairman of the Board and may designate the Chairman of
the Board as Chief Executive Officer. If the Board of Directors appoints a
Chairman of the Board, he shall perform such duties and possess such powers as
are assigned to him by the Board of Directors. If the Board of Directors
appoints a Vice-Chairman of the Board, he shall, in the absence or disability of
the Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other duties and possess such other
powers as may from time to time be vested in him by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of the
corporation. Unless otherwise provided by the Board of Directors, he shall
preside at all meetings of the stockholders and, if he is a director, at all
meetings of the Board of Directors. Unless the Board of Directors has designated
the Chairman of the Board or another officer as Chief Executive Officer, the
President shall be the Chief Executive Officer of the corporation. The President
shall perform such other duties and shall have such other powers as the Board of
Directors may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
President, the Vice President (or if there shall be more than one, the Vice
Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have all the powers of and
be subject to all the restrictions upon the President. The Board of Directors
may assign to any Vice President the title of Executive Vice President, Senior
Vice President or any other title selected by the Board of Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the President may
from time to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the secretary,
including without limitation the duty and power to give notices of all meetings
of stockholders and special meetings of the Board of Directors, to attend all
meetings of stockholders and the Board of Directors and keep a record of the
proceedings, to
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maintain a stock ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate seal and to
affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary, (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned to him by
the Board of Directors or the President. In addition, the Treasurer shall
perform such duties and have such powers as are incident to the office of
treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Treasurer, the Assistant Treasurer, (or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Treasurer.
3.12 Salaries. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4 - Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
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4.2 Certificates of Stock. Every holder of stock of the corporation shall
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him in the corporation. Each such certificate shall be signed by, or in the name
of the corporation by, the Chairman or Vice-Chairman, if any, of the Board of
Directors, or the President or a Vice President, and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of shareholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of each certificate representing shares of such
class or series of stock, provided that in lieu of the foregoing requirements
there may be set forth on the face or back of each certificate representing
shares of such class or series of stock a statement that the corporation will
furnish without charge to each stockholder who so requests a copy of the full
text of the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
4.3 Transfers. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by 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
to such stock, 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.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
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4.5 Record Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders or to express consent (or dissent) to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 10 days after the date of adoption of a
record date for a written consent without a meeting, nor more than 60 days prior
to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. 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 properly delivered to the corporation. 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 to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE 5 - General Provisions
5.1 Fiscal Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these By-Laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver, or
the appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as,
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proxy or attorney-in-fact for this corporation (with or without power of
substitution) at, any meeting of stockholders or shareholders of any other
corporation or organization, the securities of which may be held by this
corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
5.6 Certificate of Incorporation. All references in these By-Laws 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.
5.7 Transactions with Interested Parties. No contract or transaction
between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the 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 a committee of the
Board of Directors 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 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;
(2) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(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 of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.8 Severability. Any determination that any provision of these By-Laws is
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
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5.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE 6 - Indemnification
6.1 Right to Indemnification. Each person who was or is made a party or is
threatened to be made a party to or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of being or having been a director or officer of the
corporation or serving or having served at the request of the corporation as a
director, trustee, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (an "Indemnitee"), shall be indemnified and
held harmless by the corporation to the fullest extent authorized by the
Delaware General Corporation Law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than permitted
prior thereto) (as used in this Article 6, the "Delaware Law"), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such Indemnitee in connection therewith and such indemnification
shall continue as to an Indemnitee who has ceased to be a director, trustee,
officer, employee or agent and shall inure to the benefit of the Indemnitee's
heirs, executors and administrators; provided, however, that, except as provided
in Section 6.2 hereof with respect to Proceedings to enforce rights to
indemnification, the corporation shall indemnify any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee only
if such Proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this Article 6 shall
be a contract right and shall include the right to be paid by the corporation
the, expenses (including attorneys' fees) incurred in defending any such
Proceeding in advance of its final disposition (an "Advancement of Expenses");
provided, however, that an Advancement of Expenses incurred by an Indemnitee
shall be made only upon delivery to the corporation of an undertaking, by or on
behalf of such Indemnitee, to repay all amounts so advanced if it should
ultimately be determined by final judicial decision from which there is no
further right to appeal (a "Final Adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Article 6 or otherwise.
6.2 Right of Indemnitee to Bring Suit. If a claim under Section 6.1 hereof
is not paid in full by the corporation within sixty days after a written claim
has been received by the corporation, except in the case of a claim for an
Advancement of Expenses, in which case the applicable period will be twenty
days, the Indemnitee may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the corporation to recover an
Advancement of Expenses, the Indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by an
Indemnitee to enforce a right to
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indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that, and
(ii) in any suit by the corporation to recover an Advancement of Expenses, the
corporation shall be entitled to recover such expenses upon a Final Adjudication
that, the Indemnitee has not met the applicable standard of conduct set forth in
the Delaware Law. In any suit brought by the Indemnitee to enforce a right to
indemnification or to an Advancement of Expenses hereunder, or by the
corporation to recover an Advancement of Expenses, the burden of proving that
the Indemnitee is not entitled to be indemnified, or to such Advancement of
Expenses, under this Article 6 or otherwise shall be on the corporation.
6.3 Non-Exclusivity of Rights. The rights to indemnification and to the
Advancement of Expenses conferred in this Article 6 shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, provisions of the corporation's Certificate of Incorporation or these
by-laws, agreement, vote of stockholders or disinterested directors or
otherwise.
6.4 Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under this Article 6 or under the Delaware Law.
6.5 Indemnification of Employees and Agents of the Corporation. The
corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification, and to the Advancement of Expenses,
to any employee or agent of the corporation to the fullest extent of the
provisions of this Article 6 with respect to the indemnification and Advancement
of Expenses of directors and officers of the corporation.
ARTICLE 7 - Amendments
7.1 By the Board of Directors. These By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of the Required
Percentage of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present.
7.2 By the Stockholders. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of the holders of
sixty-six and two-thirds percent of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote at any regular meeting
of stockholders, or at any special meeting of stockholders, provided notice of
such alteration, amendment, repeal or adoption of new by-laws shall have been
stated in the notice of such special meeting.
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