<PAGE>
EXHIBIT 3.4
AMENDED AND RESTATED
BY-LAWS OF H POWER CORP.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE
The registered office of the Corporation shall be established and
maintained at The Prentice Hall Corporation System, Inc., 229 South State
Street, Dover, in the County of Kent, in the State of Delaware.
SECTION 2. OTHER OFFICES
The Corporation may have other offices, either within or without the
State of Delaware, at such place or places as the Board of Directors may from
time to time appoint or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING
An annual meeting of stockholders for the purpose of electing directors
and of transacting such other business as may come before it shall be held each
year at such place, either within or without the State of Delaware, and at such
date and time as the Board of Directors, by resolution, shall determine and as
set forth in the notice of the meeting or in a duly executed waiver of notice
thereof.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day.
SECTION 2. STOCKHOLDER PROPOSALS
In addition to any other applicable requirements, including, without
limitation, requirements relating to solicitation of proxies and proposals of
security holders under the Securities Exchange Act of 1934, as amended (the
"Proxy Rules"), for business to be properly
<PAGE>
brought before the annual meeting by a stockholder, including nominations of
persons for election to the Board of Directors, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be received by the Secretary at the
principal executive offices of the Corporation, not less than 60 days prior to
the annual meeting. A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the annual meeting: (i)
a brief description of the business desired to be brought before the annual
meeting; (ii) the stockholder's name and address, as they appear on the
Corporation's books; (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder; (iv) any material interest of
the stockholder and any other person or persons in connection with the proposal
of such business; (vi) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting; and (vii) with regard to nominations, all information required by the
Proxy Rules.
SECTION 3. SPECIAL MEETINGS
Special meetings of the stockholders for any purpose or purposes may be
held at any time upon call of the Chairman of the Board, if any, the President
or a majority of the Board of Directors, at such date, time and place either
within or without the State of Delaware as may be stated in the notice of such
meeting. A special meeting of stockholders shall be called by the President or
the Secretary upon the written request, stating the place, date, time, and
purpose or purposes of the meeting, of stockholders who together own of record a
majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote at such meeting.
SECTION 4. NOTICE OF MEETINGS
Written notice of a stockholders meeting, stating the place, date and
time thereof, and, in the case of a special meeting the purpose or purposes for
which the meeting is called, shall be given by the Chairman of the Board, if
any, the President, any Vice President, the Secretary, or an Assistant
Secretary, to each stockholder entitled to vote thereat at his or her address as
it appears on the records of the Corporation, not less than ten nor more than
sixty days before the date of the meeting unless a different period is
prescribed by law.
SECTION 5. QUORUM
Except as otherwise required by law, by the Certificate of
Incorporation or by these By-Laws, at any meeting of stockholders, the holders
of a majority of the outstanding shares of each class of stock entitled to vote
at the meeting shall be present or represented by proxy in order to constitute a
quorum for the transaction of any business. In the absence of a quorum, a
<PAGE>
majority in interest of the stockholders entitled to vote thereat present in
person or by proxy or the chairman of the meeting may adjourn the meeting from
time to time in the manner provided in Article II, Section 5 of these By-Laws
until a quorum shall attend.
SECTION 6. ADJOURNMENT
Any meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. At any such
adjourned meeting any business may be transacted that might have been transacted
at the original meeting. If the adjournment is for more than thirty days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
SECTION 7. ORGANIZATION
The Chairman of the Board, if any, or in his or her absence the
President, or in their absence any Vice President, shall call to order meetings
of stockholders and shall act as chairman of such meetings. The Board of
Directors, or, if the Board fails to act, the stockholders may appoint any
stockholder, director, or officer of the Corporation to act as chairman of any
meeting in the absence of the Chairman of the Board, the President, and all Vice
Presidents.
The Secretary of the Corporation shall act as secretary of all meetings
of stockholders, but, in the absence of the Secretary, the chairman of the
meeting may appoint any other person to act as secretary of the meeting.
SECTION 8. VOTING
Each stockholder entitled to vote in accordance with the terms and
provisions of the Certificate of Incorporation and these By-Laws shall be
entitled to one vote, in person or by proxy, for each share of stock entitled to
vote held by such stockholder, but no proxy shall be voted after three years
from its date unless such proxy provides for a longer period. Except as
otherwise provided by law or in the Certificate of Incorporation or these
By-Laws and except for the election of directors, at any meeting duly called and
held at which a quorum is present, a majority of the votes cast at such meeting
upon a given question by the holders of outstanding shares of stock of all
classes of stock of the Corporation entitled to vote thereon who are present in
person or by proxy shall decide such question. At any meeting duly called and
held for the election of directors at which a quorum is present, directors shall
be elected by a plurality of the votes cast by the holders (acting as such) of
shares of stock of the Corporation entitled to elect such directors. Upon the
demand of any stockholder, the vote for directors and upon any question
<PAGE>
before a meeting shall be by ballot.
SECTION 9. STOCKHOLDER LIST
The officer who has charge of the stock ledger of the Corporation shall
at least ten days before each meeting of stockholders prepare a complete
alphabetical addressed list of the stockholders entitled to vote at the ensuing
election, with the number of shares held by each. Said 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 the executive offices of the Corporation or 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 be available for inspection at the meeting and may be
inspected by any stockholder who is present.
SECTION 10. ACTION WITHOUT MEETING
Except as otherwise provided by the Certificate of Incorporation,
whenever the vote of stockholders at a meeting thereof is required or permitted
to be taken in connection with any corporate action by any provisions of the
statutes or the Certificate of Incorporation or of these By-Laws, the meeting
and vote of stockholders may be dispensed with, if a consent in writing, setting
forth the action so taken, shall be 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
thereon were present and voted. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE
The business, property, and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders. The number of directors
shall be three to nine. The directors shall be elected at the annual meeting of
the stockholders and each director shall be elected to serve (subject to the
provisions of Article V) until the next succeeding annual meeting of
stockholders and until his or her respective successor shall be elected and
shall qualify. The number of directors may not be less than three except that
<PAGE>
where all the shares of the Corporation are owned beneficially and of record by
either one or two stockholders, the number of directors may be less than three
but not less than the number of stockholders. Directors need not be residents of
Delaware or stockholders of the Corporation.
SECTION 2. INCREASE OF NUMBER
The number of directors may be increased by amendment of these By-Laws
by the affirmative vote of a majority of the directors, though less than a
quorum, or, by the affirmative vote of a majority in interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
SECTION 3. CHAIRMAN OF THE BOARD
The directors may elect one of their members to be Chairman of the
Board of Directors. The Chairman shall be subject to the control of and may be
removed by the Board of Directors. He or she shall perform such duties as may
from time to time be assigned to him or her by the Board.
SECTION 4. MEETINGS
A regular meeting of the Board of Directors shall be held each year,
without other notice than this By-Law, at the place of, and immediately
following, the annual meeting of stockholders; and other regular meetings of the
Board of Directors may be held each year without notice at such time and place
as shall from time to time be determined by the Board.
Special meetings of the Board of Directors shall be held at such time
and place as shall be designated in the notice of meeting whenever called by the
Chairman of the Board, if any, the President, or by a majority of the directors
then in office.
SECTION 5. NOTICE OF SPECIAL MEETINGS
The Secretary, or in his or her absence any other officer of the
Corporation, shall give each director notice of the date, time and place of
holding of a special meeting of the Board of Directors by mail at least five
days before the meeting, or by fax, telegram, cable, radiogram, email or
personal service at least three days before the meeting. Unless otherwise stated
in the notice thereof, any and all business may be transacted at any meeting
without specification of such business in the notice.
<PAGE>
SECTION 6. QUORUM AND ORGANIZATION OF MEETINGS
A majority of the total number of members of the Board of Directors as
constituted from time to time shall constitute a quorum for the transaction of
business, but, if at any meeting of the Board of Directors (whether or not
adjourned from a previous meeting) there shall be less than a quorum present, a
majority of those present may adjourn the meeting to another time and place, and
the meeting may be held as adjourned without further notice or waiver. Except as
otherwise provided by law or in the Certificate of Incorporation or these
By-Laws, a majority of the directors present at any meeting at which a quorum is
present may decide any question brought before such meeting. Meetings shall be
presided over by the Chairman of the Board, if any, or in his or her absence by
the President, or in the absence of both by such other person as the directors
may select. The Secretary of the Corporation shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
SECTION 7. COMMITTEES
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. 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 thereof
present at any meeting and not disqualified from voting, whether or not he, she
or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business, property and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers that may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation of the
Corporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease, or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
these By-Laws; and, unless the resolution expressly so provided, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Each committee that may be established by the
Board of Directors or these By-Laws may fix its own rules and procedures. Notice
of meetings of committees, other than regular meetings prescribed by the rules,
shall be given to committee members. Members of committees may be allowed
compensation for attending committee meetings, if the Board of Directors shall
so determine. All action taken by committees shall be recorded in minutes of the
meetings.
<PAGE>
SECTION 8. COMPENSATION
Directors shall not receive any stated salary for their services as
directors, but by resolution of the Board of Directors a fixed fee and expenses
of attendance may be allowed for attendance at each meeting. Nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity as an officer, agent or otherwise, and
receiving compensation therefor.
SECTION 9. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting,
if prior to such action a written consent thereto is signed by all members of
the Board, or of such committee as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
SECTION 10. TELEPHONE MEETINGS
Nothing contained in these By-Laws shall be deemed to restrict the
power of the members of the Board of Directors, or any committee designated by
the Board, to participate in a meeting of the Board, or 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 such participation
in a meeting shall constitute presence in person at the meeting.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS
The Board of Directors may, at their discretion, elect the following
officers of the Corporation: a Chairman of the Board, a President, one or more
Vice Presidents, a Treasurer, and a Secretary. The Board of Directors may elect
or appoint such other officers (including a Controller and one or more Assistant
Treasurers and Assistant Secretaries) as it may deem necessary and desirable.
Each officer shall hold office for such term as may be prescribed by the Board
of Directors from time to time. None of the officers of the Corporation need be
directors. Two or more offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS
<PAGE>
The Board of Directors may appoint such officers and agents as it may
deem advisable, who shall hold their offices for such terms and shall exercise
such power and perform such duties as shall be determined from time to time by
the Board of Directors.
SECTION 3. POWERS AND DUTIES
The Chairman of the Board, if any, or, in his or her absence, the
President, shall preside at all meetings of the stockholders and of the Board of
Directors. The President shall be the chief executive officer of the
Corporation. In the absence of the President, a Vice President appointed by the
President or, if the President fails to make such appointment, by the Board,
shall perform all the duties of the President. The officers and agents of the
Corporation shall each have such powers and authority and shall perform such
duties in the management of the business, property and affairs of the
Corporation as generally pertain to their respective offices, as well as such
powers and authorities and such duties as from time to time may be prescribed by
the Board of Directors. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
SECTION 4. THE PRESIDENT
The President shall have general direction and supervision over
day-to-day matters relating to the business and affairs of the Corporation,
shall implement or supervise the implementation of corporate policies as
established by the Board of Directors and shall be in charge of stockholder
relations. He or she shall have such other powers and perform such other duties
as the Board of Directors may from time to time prescribe.
SECTION 5. THE VICE PRESIDENTS
The Vice President, if any, or, if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors (or, in the
absence of any designation, then in the order of their election) shall, in the
absence or disability of the President, perform the duties and exercise the
powers of the President and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
SECTION 6. THE SECRETARY AND ASSISTANT SECRETARY
The Secretary shall attend all meetings of the Board of Directors and
all meetings of the stockholders and record all the proceedings of the meetings
of the Corporation and of the Board of Directors in a book to be kept for that
purpose and shall perform like duties for the standing committees when required.
He or she shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of Directors or person
serving as President, under whose supervision he or she shall be. He or she
shall have custody of the corporate seal of the
<PAGE>
Corporation and he or she, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and, when so affixed, it may be
attested by his or her signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature. The Secretary shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
SECTION 7.
The Assistant Secretary or, if there be more than one, the Assistant
Secretaries in the order determined by the Board of Directors (or, in the
absence of any designation, then in the order of their election), shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
SECTION 8. THE TREASURER AND ASSISTANT TREASURERS
The Treasurer shall have custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors. The Treasurer shall perform such
other duties and have such other powers as the Board of Directors may from time
to time prescribe.
SECTION 9.
He or she shall disburse the funds of the Corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the person serving as chief executive officer, the President and
Board of Directors at its regular meetings, or when the Board of Directors so
requires, an account of all of his or her transactions as Treasurer and of the
financial condition of the Corporation.
SECTION 10.
If required by the Board of Directors, he or she shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his or her
possession or under his or her control belonging to the Corporation.
SECTION 11.
<PAGE>
The Assistant Treasurer, or, if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or, in
the absence of any designation, then in the order of their election), shall, in
the absence or disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
ARTICLE V
RESIGNATIONS, REMOVALS, AND VACANCIES
SECTION 1. RESIGNATIONS
Any director or officer of the Corporation, or any member of any
committee, may resign at any time by giving written notice to the Board of
Directors, the President, or the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or if no time be
specified, then upon receipt thereof. The acceptance of a resignation shall not
be necessary to make it effective.
SECTION 2. REMOVALS
The Board of Directors, by a vote of not less than a majority of the
entire Board, at any meeting thereof, or by written consent, at any time may, to
the extent permitted by law, remove with or without cause from office or
terminate the employment of any officer or member of any committee and may, with
or without cause disband any committee. Any director or the entire Board of
Directors may be removed, with or without cause, at any time by the holders of a
majority of the shares entitled at the time to vote at an election of directors.
SECTION 3. VACANCIES
Any vacancy in the office of any director or officer and any additional
directorship resulting from an increase in the number of directors, may be
filled at any time by a vote of the majority of the directors then in office
(even though less than a quorum remains) or by a sole remaining director and,
subject to the provisions of this Article V, the person so chosen shall hold
office until his or her successor shall have been elected and qualified or until
his or her earlier resignation or removal.
ARTICLE VI
CAPITAL STOCK
<PAGE>
SECTION 1. CERTIFICATES OF STOCK
Every holder of stock in the Corporation shall be entitled to have a
certificate, signed by, or in the name of the Corporation by, the Chairman of
the Board of Directors, or the President or a Vice President and the Treasurer
or an Assistant Treasurer, or the Secretary or Assistant Secretary of the
Corporation, certifying the number of shares owned by him or her in the
Corporation. If the Corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the 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 the certificate that the Corporation shall issue to represent such
class or series, provided that, except as otherwise provided in Section 202 of
the General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate that the
Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so
requests 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. Where a certificate is countersigned (1) by a transfer agent other than
the Corporation or its employee, or (2) by a registrar other than the
Corporation or its employee, the signatures of such officers may be facsimiles.
SECTION 2. TRANSFER OF SHARES
Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Transfers of shares shall be made only on the books of the Corporation by the
registered holder thereof, or by his or her attorney thereunto authorized by
power of attorney, which power of attorney has been filed with the Secretary of
the Corporation or the transfer agent.
SECTION 3. FIXING RECORD DATE
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
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 day of such meeting,
nor more than sixty days prior to any other action. A
<PAGE>
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.
SECTION 4. LOST CERTIFICATES
The Board of Directors may direct a new certificate or certificates of
stock to be issued in the place of any certificate or certificates theretofore
issued by the Corporation, alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
or certificates to be lost, stolen or destroyed. The Board of Directors may, in
its discretion and as a condition precedent, require the owner of such lost,
stolen or destroyed certificate or certificates, or his or her legal
representative, to advertise the same in such manner as they shall require
and/or to give the Corporation a bond, in such sum as they may direct to
indemnify the Corporation against any claim that may be made against the
Corporation with respect to the certificate or certificates alleged to have been
lost, stolen or destroyed, and such requirement may be general or confined to
special instances.
SECTION 5. REGULATIONS
The Board of Directors shall have the power and authority to make all
such rules and regulations as it may deem expedient concerning the issue,
transfer, registration, cancellation, and replacement of certificates
representing stock of the Corporation.
SECTION 6. DIVIDENDS
Subject to the provisions of the Certificate of Incorporation the Board
of Directors may, out of funds legally available therefor at any regular or
special meeting, declare dividends upon the capital stock of the Corporation as
and when they deem expedient, pursuant to applicable law. Before declaring any
dividends there may be set apart out of any funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the Corporation and the
directors may modify or abolish any such reserve in the manner in which it was
created.
SECTION 7. REGISTERED STOCKHOLDERS
The Corporation shall be entitled to treat the holder of record of any
share or shares of the Corporation's capital stock as the holder in fact thereof
and, accordingly, shall not be bound to
<PAGE>
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
ARTICLE VII
INDEMNIFICATION
SECTION 1.
The Corporation shall indemnify 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 or she 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she 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 or her
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 or she 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 or
her conduct was unlawful.
SECTION 2.
The Corporation shall indemnify 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 or she 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 expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection with the
defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation; 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 or
her duty to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought determines upon
application that, despite the adjudication of liability and in view of
<PAGE>
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.
SECTION 3.
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 or 2 of this Article VII or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the action, suit or proceeding.
SECTION 4.
Any indemnification under Sections 1 or 2 of this Article VII (unless
ordered by a court) shall be made by the Corporation 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 or she has
met the applicable standard of conduct set forth in Sections 1 or 2 of this
Article VII. Such determination shall be made (a) 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 (b) 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 (c) by the stockholders.
SECTION 5.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount unless it shall
ultimately be determined that he or she is entitled to be indemnified by the
Corporation as authorized in this Article VII. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
SECTION 6.
The indemnification provided by this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her 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.
SECTION 7.
<PAGE>
The Corporation may purchase and maintain insurance 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 asserted against him or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article VII.
SECTION 8.
For the purpose of this Article VII, references to "the Corporation"
shall include, in addition to the resulting corporation, all constituent
corporations (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had the power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 9.
For purposes of this Article VII, the term "other enterprise" shall
include employee benefit plans; the term "fines" shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and the term
"serving at the request of the Corporation" shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee, or agent with respect
to any employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he or she reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article VII.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. SEAL
The corporate seal shall be circular in form and shall contain the name
of the Corporation, the year of its creation and the words "CORPORATE SEAL
DELAWARE." Said seal may be
<PAGE>
used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
SECTION 2. FISCAL YEAR
The fiscal year of the Corporation shall be determined by resolution of
the Board of Directors.
SECTION 3. CHECKS
All checks, drafts, or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the Corporation shall be
signed by the officer or officers, agent or agents of the Corporation, and in
such manner as shall be determined from time to time by resolution of the Board
of Directors.
SECTION 4. NOTICES AND WAIVER OF NOTICES
Whenever any notice whatever is required by law, the Certificate of
Incorporation, or these By-Laws to be given to any stockholder, director, or
officer, such notice, except as otherwise provided by law, may be given
personally, or by mail, or, in the case of directors or officers, by fax,
telegram, cable, radiogram or email, addressed to such address as appears on the
books of the Corporation. Any notice given by fax, telegram, cable, radiogram or
email shall be deemed to have been given when it shall have been delivered for
transmission and any notice given by mail shall be deemed to have been given
when it shall have been deposited in the United States mail with postage thereon
prepaid. Whenever any notice is required to be given by law, the Certificate of
Incorporation, or these By-Laws, a written waiver thereof, signed by the person
entitled to such notice, whether before or after the meeting or the time stated
therein, shall be deemed equivalent in all respects to such notice to the full
extent permitted by law. Stockholders not entitled to vote shall not be entitled
to receive notice of any meetings except as otherwise provided by statute.
SECTION 5. STOCK OF OTHER CORPORATIONS OR OTHER INTERESTS
Unless otherwise ordered by the Board of Directors, the President, the
Secretary, and such attorneys or agents of the Corporation as may be from time
to time authorized by the Board of Directors or the President, shall have full
power and authority on behalf of this Corporation to attend and to act and vote
in person or by proxy at any meeting of the holders of securities of any
corporation or other entity in which this Corporation may own or hold shares or
other securities, and at such meetings shall possess and may exercise all rights
and powers incident to the ownership of such shares or other securities that
this Corporation, as the owner or holder thereof, might have possessed and
exercised if present. The President, the Secretary, or such attorneys or
<PAGE>
agents, may also execute and deliver on behalf of the Corporation powers of
attorney, proxies, consents, waivers, and other instruments relating to the
shares or securities owned or held by this Corporation.
SECTION 6. ANNUAL STATEMENT
The Board of Directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and conditions of the Corporation.
ARTICLE IX
AMENDMENTS
The holders of shares entitled at the time to vote for the election of
directors shall have power to adopt, amend, or repeal the By-Laws of the
Corporation by vote of not less than a majority of such shares, and except as
otherwise provided by law, the Board of Directors shall have power equal in all
respects to that of the stockholders to adopt, amend, or repeal the By-Laws by
vote of not less than a majority of the entire Board. However, any By-Law
adopted by the Board may be amended or repealed by vote of the holders of the
majority of the shares entitled at the time to vote for the election of
directors.
