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EXHIBIT 3.1
AMENDED AND RESTATED BY-LAWS
OF
AMERICAN SUPERCONDUCTOR CORPORATION
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TABLE OF CONTENTS
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ARTICLE I STOCKHOLDERS..................................................................... 1
1.1 Place of Meetings................................................................ 1
1.2 Annual Meeting................................................................... 1
1.3 Special Meetings................................................................. 1
1.4 Notice of Meetings............................................................... 1
1.5 Voting List...................................................................... 1
1.6 Quorum........................................................................... 2
1.7 Adjournments..................................................................... 2
1.8 Voting and Proxies............................................................... 2
1.9 Action at Meeting................................................................ 2
1.10 Conduct of Meetings.............................................................. 3
1.11 Action Without Meeting........................................................... 4
ARTICLE II DIRECTORS........................................................................ 4
2.1 General Powers................................................................... 4
2.2 Number; Election and Qualification............................................... 4
2.3 Enlargement of the Board......................................................... 4
2.4 Tenure........................................................................... 4
2.5 Vacancies........................................................................ 4
2.6 Resignation and Removal.......................................................... 5
2.7 Regular Meetings................................................................. 5
2.8 Special Meetings................................................................. 5
2.9 Notice of Special Meetings....................................................... 5
2.10 Meetings by Conference Communications Equipment.................................. 5
2.11 Quorum........................................................................... 5
2.12 Action at Meeting................................................................ 6
2.13 Action by Written Consent........................................................ 6
2.14 Committees....................................................................... 6
2.15 Compensation of Directors........................................................ 6
ARTICLE III OFFICERS......................................................................... 6
3.1 Titles........................................................................... 6
3.2 Election......................................................................... 7
3.3 Qualification.................................................................... 7
3.4 Tenure........................................................................... 7
3.5 Resignation and Removal.......................................................... 7
3.6 Vacancies........................................................................ 7
3.7 Chairman of the Board............................................................ 7
3.8 President; Chief Executive Officer............................................... 7
3.9 Vice Presidents.................................................................. 8
3.10 Secretary and Assistant Secretaries.............................................. 8
3.11 Treasurer and Assistant Treasurers............................................... 8
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3.12 Salaries......................................................................... 9
ARTICLE IV CAPITAL STOCK.................................................................... 9
4.1 Issuance of Stock................................................................ 9
4.2 Certificates of Stock............................................................ 9
4.3 Transfers........................................................................ 9
4.4 Lost, Stolen or Destroyed Certificates........................................... 9
4.5 Record Date...................................................................... 10
ARTICLE V GENERAL PROVISIONS............................................................... 10
5.1 Fiscal Year...................................................................... 10
5.2 Corporate Seal................................................................... 10
5.3 Waiver of Notice................................................................. 10
5.4 Voting of Securities............................................................. 10
5.5 Evidence of Authority............................................................ 10
5.6 Certificate of Incorporation..................................................... 11
5.7 Transactions with Interested Parties............................................. 11
5.8 Severability..................................................................... 11
5.9 Pronouns......................................................................... 11
ARTICLE VI INDEMNIFICATION.................................................................. 12
6.1 Actions, Suits and Proceedings Other than by or in the Right of the Corporation.. 12
6.2 Actions or Suits by or in the Right of the Corporation........................... 12
6.3 Indemnification for Expenses of Successful Party................................. 13
6.4 Notification and Defense of Claim................................................ 13
6.5 Advance of Expenses.............................................................. 14
6.6 Procedure for Indemnification.................................................... 14
6.7 Remedies......................................................................... 14
6.8 Limitations...................................................................... 15
6.9 Subsequent Amendment............................................................. 15
6.10 Other Rights..................................................................... 15
6.11 Partial Indemnification.......................................................... 15
6.12 Insurance........................................................................ 15
6.13 Savings Clause................................................................... 16
6.14 Intent of Article................................................................ 16
6.15 Definitions...................................................................... 16
ARTICLE VII AMENDMENTS....................................................................... 16
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ARTICLE I
STOCKHOLDERS
1.1 Place of Meetings. All meetings of stockholders shall be held at such
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place as may be designated from time to time by the Board of Directors, the
Chairman of the Board or the President or, if not so designated, at the
principal office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election
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of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date and at a time designated by
the Board of Directors, the Chairman of the Board or the President (which date
shall not be a legal holiday in the place where the meeting is to be held). 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 for any purpose or
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purposes may be called at any time by the Board of Directors, the Chairman of
the Board or the President, but such special meetings may not be called by any
other person or persons. 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
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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. Without limiting the manner
by which notice otherwise may be given to stockholders, any notice shall be
effective if given by a form of electronic transmission consented to (in a
manner consistent with the Delaware General Corporation Law) by the stockholder
to whom the notice is given. The notices of all meetings shall state the place,
date and time of the meeting and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting. The notice of a special meeting shall state, in addition,
the purpose or purposes for which the meeting is called. If notice is given by
mail, such notice shall be deemed given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholder's address
as it appears on the records of the corporation. If notice is given by
electronic transmission, such notice shall be deemed given at the time specified
in Section 232 of the Delaware General Corporation Law.
1.5 Voting List. The Secretary shall prepare, at least 10 days before
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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, for a period of at least 10 days prior to
the meeting: (i) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with notice of
the meeting, or (ii) during ordinary
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business hours, at the principal place of business of the corporation. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
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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, present by means of remote communication in a
manner, if any, authorized by the Board of Directors in its sole discretion, or
represented by proxy, shall constitute a quorum for the transaction of business.
A quorum, once established at a meeting, shall not be broken by the withdrawal
of enough votes to leave less than a quorum.
1.7 Adjournments. Any meeting of stockholders may be adjourned from time
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to time 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, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such 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
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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
by law or the Certificate of Incorporation. Each stockholder of record entitled
to vote at a meeting of stockholders may vote in person or may authorize another
person or persons to vote for such stockholder by a proxy executed or
transmitted in a manner permitted by the Delaware General Corporation Law by the
stockholder or such stockholder's authorized agent and delivered (including by
electronic transmission) to the Secretary of the corporation. No such proxy
shall be voted 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, any
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matter other than the election of directors to be voted upon by the stockholders
at such meeting shall be decided by the vote of the holders of shares of stock
having a majority of the votes cast by the holders of all of the shares of stock
present or represented and voting on such 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 a majority of the stock of that class present or
represented and voting on such matter), except when a different vote is required
by law, the Certificate of Incorporation or these By-laws. When a quorum is
present at any meeting, any election by stockholders of directors shall be
determined by a plurality of the votes cast by the stockholders entitled to vote
on the election.
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1.10 Conduct of Meetings.
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(a) Chairman of Meeting. Meetings of stockholders shall be presided
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over by the Chairman of the Board, if any, or in the Chairman's absence by the
Vice Chairman of the Board, if any, or in the Vice Chairman's absence by the
President, or in the President's absence by a Vice President, or in the absence
of all of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen by vote of
the stockholders at the meeting. The Secretary shall act as secretary of the
meeting, but in the Secretary's absence the chairman of the meeting may appoint
any person to act as secretary of the meeting.
(b) Rules, Regulations and Procedures. The Board of Directors of the
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corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the corporation as it shall deem
appropriate including, without limitation, such guidelines and procedures as it
may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as shall be determined; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent determined by the Board of Directors or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
(c) Closing of Polls. The chairman of the meeting shall announce at
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the meeting when the polls for each matter to be voted upon at the meeting will
be opened and closed. If no announcement is made, the polls shall be deemed to
have opened when the meeting is convened and closed upon the final adjournment
of the meeting. After the polls close, no ballots, proxies or votes or any
revocations or changes thereto may be accepted.
(d) Inspectors of Election. In advance of any meeting of
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stockholders, the Board of Directors, the Chairman of the Board or the President
shall appoint one or more inspectors of election to act at the meeting and make
a written report thereof. One or more other persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is present, ready and willing to act at a meeting of stockholders,
the chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by law, inspectors may be officers, employees
or agents of the corporation. Each inspector, before entering upon the discharge
of such inspector's duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the
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best of such inspector's ability. The inspector shall have the duties prescribed
by law and shall take charge of the polls and, when the vote in completed, shall
make a certificate of the result of the vote taken and of such other facts as
may be required by law.
1.11 Action Without Meeting. Any action required or permitted to be
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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
and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the action
were delivered to the corporation.
ARTICLE II
DIRECTORS
2.1 General Powers. The business and affairs of the corporation shall be
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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, the
Certificate of Incorporation or these By-laws. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which
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shall constitute the whole Board of Directors shall be determined from time to
time by resolution of the Board of Directors or by the stockholders at the
annual meeting or any special meeting of the stockholders, but in no event shall
be less than three. Except as provided in Section 2.5 of these By-Laws, the
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not be
stockholders of the corporation.
2.3 Enlargement of the Board. The number of directors may be increased at
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any time by a majority of the directors then in office.
2.4 Tenure. Each director shall hold office until the next annual meeting
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and until a successor is elected and qualified, or until such director's earlier
death, resignation or removal.
2.5 Vacancies. Any vacancy in the Board of Directors, however occurring,
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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. A director elected to fill a vacancy shall be
elected for the unexpired term of such director's predecessor in office, and a
director chosen to fill a position resulting from an increase in the number of
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directors shall hold office until the next annual meeting of stockholders and
until a successor is elected and qualified, or until such director's earlier
death, resignation or removal.
2.6 Resignation and Removal. Any director may resign by delivering a
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resignation in writing or by electronic transmission to the corporation at its
principal office or to the Chairman of the Board, the President or the
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some later time or upon the happening of some later
event. Any director or the entire Board of 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, unless otherwise specified by the Delaware General
Corporation Law or the Certificate of Incorporation.
2.7 Regular Meetings. Regular meetings of the Board of Directors may be
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held without notice at such time and place 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
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held at any time and place designated in a call by the Chairman of the Board,
the President, two or more directors, 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
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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 24 hours in advance of the meeting, (ii) by sending a telegram, telecopy
or electronic mail, or delivering written notice by hand, to such director's
last known business, home or electronic mail address at least 48 hours in
advance of the meeting, or (iii) by sending written notice, via first-class mail
or reputable overnight courier, to such director's last known business or home
address at least 72 hours 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.
2.10 Meetings by Conference Communications Equipment. Directors may
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participate in meetings of the Board of Directors or any committee thereof by
means of conference telephone or other 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
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Directors shall constitute a quorum at all meetings of the Board of Directors.
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.
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2.12 Action at Meeting. Every act of decision made by a majority of the
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directors present at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors unless a greater number is
required by law, the Certificate of Incorporation or these By-Laws.
2.13 Action by Written Consent. Any action required or permitted to be
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taken at any meeting of the Board of Directors or of any committee thereof 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 or by electronic transmission, and
the written consents and electronic transmissions are filed with the minutes of
proceedings of the Board or committee.
2.14 Committees. The Board of Directors may designate one or more
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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 such member or members 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 law, 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.
2.15 Compensation of Directors. Directors may be paid such compensation
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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 III
OFFICERS
3.1 Titles. The officers of the corporation shall consist of a President,
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a Secretary, a Treasurer and such other officers with such other titles as the
Board of Directors may 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.
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3.2 Election. The President, Treasurer and Secretary shall be elected
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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
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offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
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Incorporation or by these By-laws, each officer shall hold office until such
officer's successor is elected and qualified, unless a different term is
specified in the resolution electing or appointing such officer, or until such
officer's earlier death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering a
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written resignation to the corporation at its principal office or to the Chief
Executive Officer or the Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some later time or upon the
happening of some later 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.
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 such officer's resignation or removal, or any right to
damages on account of such removal, whether such officer's 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
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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
such officer's predecessor and until a successor is elected and qualified, or
until such officer's earlier death, resignation or removal.
3.7 Chairman of the Board. The Board of Directors may appoint from its
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members a Chairman of the Board. If the Board of Directors appoints a Chairman
of the Board, such Chairman shall perform such duties and possess such powers as
are assigned by the Board of Directors and, if the Chairman of the Board is also
designated as the corporation's Chief Executive Officer, shall have the powers
and duties of the Chief Executive Officer prescribed in Section 3.8 of these By-
laws. Unless otherwise provided by the Board of Directors, the Chairman of the
Board shall preside at all meetings of the Board of Directors and stockholders.
3.8 President; Chief Executive Officer. Unless the Board of Directors has
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designated the Chairman of the Board or another person as the corporation's
Chief Executive Officer, the President shall be the Chief Executive Officer of
the corporation. The Chief Executive Officer shall have general charge and
supervision of the business of the corporation subject to the direction of the
Board of Directors. The President shall perform such other duties and shall
have such other powers as the Board of Directors and the Chief Executive Officer
(if the Chairman of the Board or another person is serving in such position) may
from time to time prescribe.
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3.9 Vice Presidents. Any Vice President shall perform such duties and
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possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the Chief Executive Officer, the President (if the President is not
the Chief Executive Officer), and then 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 Chief Executive Officer and when so
performing shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer. 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
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duties and shall have such powers as the Board of Directors or the Chief
Executive Officer 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 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 Chief Executive Officer 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 chairman of 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
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duties and shall have such powers as may from time to time be assigned by the
Board of Directors or the Chief Executive Officer. 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 Chief Executive Officer 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.
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3.12 Salaries. Officers of the corporation shall be entitled to such
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salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE IV
CAPITAL STOCK
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
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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 shares of the authorized capital stock of the
corporation held in the corporation's treasury may be issued, sold, transferred
or otherwise disposed of by vote of the Board of Directors in such manner, for
such lawful consideration and on such terms as the Board of Directors may
determine.
4.2 Certificates of Stock. Every holder of stock of the corporation
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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 such holder 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, these By-laws,
applicable securities laws or any agreement among any number of stockholders 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.
4.3 Transfers. Except as otherwise established by rules and regulations
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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
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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
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indemnity as the Board of Directors may require for the protection of the
corporation or any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a
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record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, 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 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. If no record date is fixed, 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 V
GENERAL PROVISIONS
5.1 Fiscal Year. Except as from time to time otherwise designated by the
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Board of Directors, the fiscal year of the corporation shall begin on the first
day of April of each year and end on the last day of March in each year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be
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approved by the Board of Directors.
5.3 Waiver of Notice. Whenever notice is required to be given by law,
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by the Certificate of Incorporation or by these By-laws, a written waiver signed
by the person entitled to notice or a waiver by electronic transmission by the
person entitled to notice, whether before, at or after the time stated in such
waiver, or the attendance of such person at such meeting shall be deemed
equivalent to such notice.
5.4 Voting of Securities. Except as the Board of Directors may otherwise
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designate, the President or the Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, 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
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Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or
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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 at which the contract or transaction is authorized or solely
because any such director's or officer's votes are counted for such purpose, if:
(a) The material facts as to the director's or officer's 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;
(b) The material facts as to the director's or officer's 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
(c) 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.
5.9 Pronouns. All pronouns used in these By-laws shall be deemed to
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refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
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ARTICLE VI
INDEMNIFICATION
6.1 Actions, Suits and Proceedings Other than by or in the Right of the
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Corporation. The corporation shall 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 (other than an action by or in the right of the corporation), 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, partner, employee 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 him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
---------------
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
6.2 Actions or Suits by or in the Right of the Corporation. The
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corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was, 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, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan), or by
reason of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys' fees) and, to the extent permitted by
law, amounts paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the corporation, 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 to the corporation
unless and only to the extent that the Court of Chancery of Delaware shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware shall deem proper.
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6.3 Indemnification for Expenses of Successful Party. Notwithstanding the
------------------------------------------------
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 6.1 and 6.2 of these By-Laws, or in defense
of any claim, issue or matter therein, or on appeal from any such action, suit
or proceeding, he shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him or on his behalf in
connection therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a disposition
without prejudice), without (i) the disposition being adverse to the Indemnitee,
(ii) an adjudication that the Indemnitee was liable to the corporation, (iii) a
plea of guilty or nolo contendere by the Indemnitee, (iv) an adjudication that
---------------
the Indemnitee did not act in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
6.4 Notification and Defense of Claim. 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. After notice from the
corporation to the Indemnitee of its election so to assume such defense, the
corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such action,
suit, proceeding or investigation, other than as provided below in this Section
6.4. The Indemnitee shall have the right to employ his own counsel in connection
with such action, suit, proceeding or investigation, but the fees and expenses
of such counsel incurred after notice from the corporation of its assumption of
the defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the corporation,
(ii) counsel to the Indemnitee shall have reasonably concluded that there may be
a conflict of interest or position on any significant issue between the
corporation and the Indemnitee in the conduct of the defense of such action,
suit, proceeding or investigation or (iii) the corporation shall not in fact
have employed counsel to assume the defense of such action, suit, proceeding or
investigation, in each of which cases the fees and expenses of counsel for the
Indemnitee shall be at the expense of the corporation, except as otherwise
expressly provided by this Article. The corporation shall not be entitled,
without the consent of the Indemnitee, to assume the defense of any claim
brought by or in the right of the corporation or as to which counsel for the
Indemnitee shall have reasonably made the conclusion provided for in clause (ii)
above. The corporation shall not be required to indemnify the Indemnitee under
this Article for any amounts paid in settlement of any action, suit, proceeding
or investigation effected without its written consent. The corporation shall not
settle any action, suit, proceeding or investigation in any manner which would
impose any penalty or limitation on the Indemnitee without the Indemnitee's
written consent. Neither the corporation nor the Indemnitee will unreasonably
withhold or delay its consent to any proposed settlement.
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6.5 Advance of Expenses. Subject to the provisions of Section 6.6 of the
-------------------
se By-Laws, in the event that the corporation does not assume the defense
pursuant to Section 6.4 of these By-Laws of any action, suit, proceeding or
investigation of which the corporation receives notice under this Article, any
expenses (including attorneys' fees) incurred by an Indemnitee in defending a
civil or criminal action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the corporation in advance of the final disposition
of such matter; provided, however, that the payment of such expenses incurred by
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the 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; and further provided that no such advancement of
expenses shall be made if it is determined (in the manner described in Section
6.6) that (i) the Indemnitee did not act in good faith and in a manner he
reasonably believed to be in, or not 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. Such
undertaking shall be accepted without reference to the financial ability of the
Indemnitee to make such repayment.
6.6 Procedure for Indemnification. In order to obtain indemnification or
-----------------------------
advancement of expenses pursuant to Section 6.1, 6.2, 6.3 or 6.5 of these By-
Laws, the Indemnitee shall submit to the corporation a written request,
including in such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether and
to what extent the Indemnitee is entitled to indemnification or advancement of
expenses. Any such advancement of expenses shall be made promptly, and in any
event within 60 days after receipt by the corporation of the written request of
the Indemnitee, unless with respect to requests under Section 6.1, 6.2 or 6.5 of
these By-Laws the corporation determines within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
6.1, 6.2 or 6.5 of these By-Laws, as the case may be. Any such indemnification,
unless ordered by a court, shall be made with respect to requests under Section
6.1 or 6.2 only as authorized in the specific case upon a determination by the
corporation that the indemnification of the Indemnitee is proper because the
Indemnitee has met the applicable standard of conduct set forth in Section 6.1
or 6.2, as the case may be. Such determination shall be made in each instance
(a) by 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) by a majority vote of
a committee of disinterested directors designated by majority vote of
disinterested directors, whether or not a quorum, (c), if there are no
disinterested directors, or if disinterested directors so direct, by independent
legal counsel (who may, to the extent permitted by law, be regular legal counsel
to the corporation) in a written opinion, or (d) by the stockholders of the
corporation.
6.7 Remedies. The right to indemnification or advances as granted by this
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Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction. Neither the failure of the corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the corporation pursuant to
Section 6.6 of these By-Laws that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the Indemnitee has not met the applicable
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standard of conduct. The Indemnitee's expenses (including attorneys' fees)
incurred in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the corporation.
6.8 Limitations. Notwithstanding anything to the contrary in this Article,
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except as set forth in Section 6.7 of these By-Laws, the corporation shall not
indemnify an Indemnitee in connection with a proceeding (or part thereof)
initiated by the Indemnitee unless the initiation thereof was approved by the
Board of Directors of the corporation. Notwithstanding anything to the contrary
in this Article, 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.
6.9 Subsequent Amendment. No amendment, termination or repeal of this
--------------------
Article or of the relevant provisions of the Delaware General Corporation Law or
any other applicable laws shall affect or diminish in any way the rights of any
Indemnitee to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
6.10 Other Rights. The indemnification and advancement of expenses
------------
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office for the
corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, 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.
6.11 Partial Indemnification. If an Indemnitee is entitled under any
-----------------------
provision of this Article to indemnification by the corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
6.12 Insurance. The corporation may purchase and 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 (including any employee benefit
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plan) against any expense, liability or loss incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
6.13 Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
6.14 Intent of Article. This intent of this Article is to provide for
-----------------
indemnification and advancement of expenses to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law. to the extent that such
Section or any successor section may be amended or supplemented from time to
time, this Article shall be amended automatically and construed so as to permit
indemnification and advancement of expenses to the fullest extent from time to
time permitted by law.
6.15 Definitions. Terms used in this Article and defined in Section
-----------
145(h) and Section 145(i) of the Delaware General Corporation Law shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
ARTICLE VII
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or
new By-laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
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