SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 21, 1999
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FUELCELL ENERGY, INC.
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(Exact Name Of Registrant As Specified In Its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
0-24852 06-0853042
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(Commission File Number) (I.R.S. Employer Identification No.)
3 Great Pasture Road, Danbury, Connecticut 06813
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(Address of Principal Executive Offices) (Zip Code)
(203)825-6000
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(Registrant's Telephone Number, Including Area Code)
ENERGY RESEARCH CORPORATION
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(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
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On September 21, 1999, Energy Research Corporation, a New York
corporation ("ERC") and the sole stockholder of the Registrant, merged with and
into the Registrant (the "Merger") for the purpose of changing ERC's state of
incorporation from New York to Delaware (the "Reincorporation"). The
Reincorporation was approved by the holders of more than two-thirds of ERC's
outstanding shares of Common Stock at ERC's Special Meeting of shareholders (the
"Special Meeting") held on September 2, 1999. At the Special Meeting, ERC's
shareholders also approved changing ERC's corporate name to FuelCell Energy,
Inc. and increasing the number of authorized shares of Common Stock, $.0001 par
value of ERC from 8,000,000 to 20,000,000 shares. Both of these changes also
have been effected by the Merger.
The Reincorporation will not result in any changes in the physical
location, business, management, assets, liabilities, net worth or employee
benefit plans of the Company. The directors and officers of the Company
immediately prior to the Reincorporation will serve as the directors and
officers of the Registrant following the Reincorporation.
Shareholders of ERC will not be required to undertake a mandatory
exchange of their shares of ERC's Common Stock. By virtue of the
Reincorporation, certificates for shares of ERC's Common Stock will
automatically represent an equal number of shares of the Registrant's Common
Stock. Effective September 21, 1999, the Registrant's Common Stock will be
listed for trading on the American Stock Exchange under the symbol "FCL".
The Certificate of Incorporation and By-laws of the Registrant
are attached hereto as exhibits.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits:
3.1 Certificate of Incorporation of the Registrant
3.2 By-laws of the Registrant
99 Press Release dated September 20, 1999.
2
<PAGE>
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FUELCELL ENERGY, INC.
Dated: September 21, 1999
By:/s/ Jerry D. Leitman
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Jerry D. Leitman
President and Chief Executive Officer
3
CERTIFICATE OF INCORPORATION
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OF
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FUELCELL ENERGY, INC.
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The undersigned, a natural person, for the purposes of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental hereto, and generally known as the
"General Corporation Law of the State of Delaware") (the "G.C.L."), hereby
certifies that:
FIRST: The name of the Corporation (hereinafter called the "Corporation")
is FuelCell Energy, Inc.
SECOND: The address, including street, number, city, and county, of the
registered office of the Corporation in the State of Delaware is 1209 Orange
Street, Wilmington, New Castle County, Delaware 19801; and the name of the
registered agent of the Corporation in the State of Delaware at such address is
The Corporation Trust Company.
THIRD: The nature of the business and the purposes to be conducted and
promoted by the Corporation shall be any lawful business, to promote any lawful
purpose, and to engage in any lawful act or activity for which corporations may
be organized under the G.C.L.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is as follows:
20,000,000 shares of Common Stock, $.0001 par value (the "Common Stock");
and 250,000 shares of Preferred Stock, $.01 par value (the "Preferred Stock")
The classes of capital stock of the Corporation shall have the preferences,
voting powers and relative participating, optional or other special rights, and
qualifications, limitations or restrictions as set forth in this Article Fourth.
PART A - COMMON STOCK
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Section 1. Voting Rights and Powers.
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(a) Except as otherwise required by law, with respect to all matters upon
which stockholders are entitled to vote or give consent, the holders of the
outstanding shares of the Common Stock shall be entitled to cast thereon one (1)
vote in person or by proxy for each share of the Common Stock standing in his or
her name. No action required to be taken or which may be taken at any annual or
special meeting of stockholders of the Corporation may be taken by stockholders
without a meeting, and the power of stockholders to consent in writing, without
a meeting, to the taking of any action is specifically denied.
<PAGE>
(b) This Section 1 of Part A of Article Fourth shall not be amended,
altered or repealed except by the affirmative vote of eighty percent (80%) of
the votes entitled to be cast by the stockholders.
Section 2. Dividends, etc. Subject to the rights of any one or more series
of Preferred Stock, if any, the holders of Common Stock shall be entitled to
receive such dividends as from time to time may be declared by the Board of
Directors out of any funds of the Corporation legally available for the payment
of such dividends and shall share equally, share for share, in all such
dividends and distributions.
Section 3. Liquidation. Upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, and after payment shall have
been made to the holders of Preferred Stock, if any, of the full amount to which
they are entitled, the holders of Common Stock shall be entitled to share
equally, share for share, in all remaining assets of the Corporation available
for distribution to its stockholders.
PART B - PREFERRED STOCK
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Section 1. General. The Preferred Stock may consist of one or more series.
The Board of Directors may, from time to time, establish and designate the
different series and the variations in the relative rights and preferences as
between the different series provided in Section 2 hereof, but in all other
respects all shares of the Preferred Stock shall be identical. In the event that
at any time the Board of Directors shall have established and designated one or
more series of Preferred Stock consisting of a number of shares less than all of
the authorized number of shares of Preferred Stock, the remaining authorized
shares of Preferred Stock shall be deemed to be shares of an undesignated series
of Preferred Stock until designated by the Board of Directors as being a part of
a series previously established or a new series then being established by the
Board of Directors.
Section 2. Establishment of a Series. Subject to the provisions of this
Article Fourth, the Board of Directors is authorized to establish one or more
series of Preferred Stock and, to the extent now or hereafter permitted by the
G.C.L., to file with the State of Delaware a Certificate of Designations in
which the Board of Directors may fix and determine the preferences, voting
powers, designations and relative participating, optional or other special
rights and qualifications, limitations or restrictions of each series including,
but not limited to:
(a) the number of shares to constitute such series and the distinctive
designation of such series;
(b) the dividend rate on the shares of such series and preferences, if any,
and the special and relative rights of such shares of such series as to
dividend;
(c) whether or not the shares of such series shall be redeemable, and, if
redeemable, the price, terms and manner of redemption;
(d) the preferences, if any, and the special and relative rights of the
shares of such series upon liquidation of the Corporation;
<PAGE>
(e) whether or not the shares of such series shall be subject to the
operation of a sinking or purchase fund and, if so, the terms and provisions of
such fund;
(f) whether or not the shares of such series shall be convertible into
shares of any other class or of any other series of the same or any other class
of stock of the Corporation and, if so, the conversion price or ratio and other
conversion rights;
(g) the conditions under which the shares of such series shall have
separate voting rights or no voting rights; and
(h) such other designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
of such series to the full extent now and hereafter permitted by the G.C.L.
Notwithstanding the fixing of the number of shares constituting a
particular series, the Board of Directors may at any time authorize the issuance
of additional shares of the same series.
Section 3. Dividends. Holders of Preferred Stock shall be entitled to
receive, when and as declared by the Board of Directors, but only out of funds
legally available for the payment of dividends, cash dividends at the rates, if
any, fixed by the Board of Directors for the respective series, payable on such
dates in each year as the Board of Directors shall fix for the respective series
as provided in Section 2 (hereinafter referred to as "dividend dates"). Until
all accrued dividends on each series of Preferred Stock shall have been paid
through the last preceding dividend date of each such series, no dividend or
distribution shall be made to holders of Common Stock other than a dividend
payable in Common Stock of the Corporation. Dividends on shares of any
cumulative series of Preferred Stock shall accumulate from and after the day on
which such shares are issued, but arrearages in the payment thereof shall not
bear interest. Nothing hereincontained shall be deemed to limit the right of the
Corporation to purchase or otherwise acquire at any time any shares of its
capital stock.
For purposes of this Article Fourth, the amount of dividends "accrued" on
any shares of any cumulative series of Preferred Stock as at any dividend date
shall be deemed to be the amount of any unpaid dividends accumulated thereon to
and including such dividend date, whether or not earned or declared. The amount
of dividends "accrued" on any noncumulative series of Preferred Stock shall mean
only those dividends declared by the Board of Directors, unless otherwise
specified for such series by the Board of Directors pursuant to Section 2.
Section 4. Liquidation. Upon the voluntary or involuntary liquidation of
the Corporation, before any payment or distribution of the assets of the
Corporation shall be made to or set apart for Common Stock or any other class of
stock, the holders of Preferred Stock shall be entitled to payment of the amount
of the preference payable upon such liquidation of the Corporation fixed by the
Board of Directors for the respective series as provided in Section 2. If, upon
any such liquidation, the assets of the Corporation shall be insufficient to pay
in full to the holders of the Preferred Stock the preferential amount aforesaid,
then such assets, or the proceeds thereof, shall be distributed among the
holders of each series of Preferred Stock ratably in accordance with the sums
which would be payable on such distribution if all sums payable were
<PAGE>
discharged in full. Except to the extent that the Board of Directors shall
determine at the time any series of Preferred Stock is established, the
voluntary sale, conveyance, exchange or transfer of all or substantially all of
the property and assets of the Corporation, the merger or consolidation of the
Corporation into or with any other corporation, or the merger of any other
corporation into it, shall not be deemed to be a liquidation of the Corporation
for the purpose of this Section 4.
Section 5. Retirement. Any shares of Preferred Stock which shall at any
time have been redeemed, or which shall at any time have been surrendered for
conversion or exchange or for cancellation pursuant to any sinking or purchase
fund provisions with respect to any series of Preferred Stock, shall be retired
and shall thereafter have the status of authorized and unissued shares of
Preferred Stock undesignated as to series.
Section 6. Voting Rights. The Common Stock shall have exclusive voting
power except as required by law and except to the extent the Board of Directors
shall, at the time any series of Preferred Stock is established, determine that
the shares of such series shall vote (a) together as a single class with shares
of Common Stock and/or with shares of Preferred Stock (or one or more other
series thereof) on all or certain matters presented to the stockholders and/or
upon the occurrence of any specified event or condition, and/or (b) exclusively
on certain matters, or, upon the occurrence of any specified event or condition,
on all or certain matters. The Board of Directors, in establishing a series of
Preferred Stock and fixing the voting rights thereof, may determine that the
voting power of each share of such series may be greater or less than the voting
power of each share of the Common Stock or of other series of Preferred Stock
notwithstanding that the shares of such series of Preferred Stock may vote as a
single class with the shares of other series of Preferred Stock and/or with the
shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator are as follows:
NAME ADDRESS
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Jayne M. Donegan, Esq. Brown, Rudnick, Freed & Gesmer
One Providence Washington Plaza
Providence, Rhode Island 02903
SIXTH: The Corporation shall have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 29l of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement
<PAGE>
and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided that:
1. The business and affairs of the Corporation will be managed by and under
the direction of the Board of Directors.
2. The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the By-Laws. No
election of Directors need be by written ballot.
3. The Board of Directors of the Corporation may adopt, amend or repeal the
By-Laws of the Corporation at any time after the original adoption of the
By-Laws according to Section 109 of the G.C.L.; provided, however, that any
amendment to provide for the classification of directors of the Corporation for
staggered terms pursuant to the provisions of subsection (d) of Section 141 of
the G.C.L. shall be set forth in an amendment to this Certificate of
Incorporation, in an initial By-Law, or in a By-Law adopted by the stockholders
of the Corporation entitled to vote.
NINTH: (a) The Corporation may, to the fullest extent permitted by Section
145 of the G.C.L., indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which a person indemnified may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(b) No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director as a director. Notwithstanding the foregoing sentence, a director shall
be liable to the extent provided by applicable law (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the G.C.L. or (iv)
for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this paragraph (b) of this Article Ninth
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
<PAGE>
TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article Tenth.
Signed on the 12 day of July, 1999.
/s/ Jayne M. Donegan, Incorporator
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Jayne M. Donegan, Incorporator
<PAGE>
BY-LAWS
OF
FUELCELL ENERGY, INC.
(A Delaware Corporation)
ARTICLE I.
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Stockholders
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Section 1.1. Annual Meeting. The annual meeting of the stockholders of the
corporation shall be held on such date as shall be fixed by the Board of
Directors, at such time and place within or without the State of Delaware as may
be designated in the notice of meeting. If the day fixed for the annual meeting
shall fall on a legal holiday, the meeting shall be held on the next succeeding
day not a legal holiday. If the annual meeting is omitted on the day herein
provided, a special meeting may be held in place thereof, and any business
transacted at such special meeting in lieu of annual meeting shall have the same
effect as if transacted or held at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the stockholders may be
called at any time by the board of directors. Special meetings of the
stockholders shall be held at such time, date and place within or outside of the
State of Delaware as may be designated in the notice of such meeting.
Section 1.3. Notice of Meeting. A written notice stating the place, date,
and hour of each meeting of the stockholders, and, in the case of a special
meeting, the purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at such meeting, and to each stockholder who, under
the Certificate of Incorporation or these By-laws, is entitled to such notice,
by delivering such notice to such person or leaving it at their residence or
usual place of business, or by mailing it, postage prepaid, and addressed to
such stockholder at his address as it appears upon the books of the corporation,
at least ten (10) days and not more than sixty (60) before the meeting. Such
notice shall be given by the secretary, an assistant secretary, or any other
officer or person designated either by the secretary or by the person or persons
calling the meeting.
The requirement of notice to any stockholder may be waived (i) by a written
waiver of notice, executed before or after the meeting by the stockholder or his
attorney thereunto duly authorized, and filed with the records of the meeting,
(ii) if communication with such stockholder is unlawful, (iii) by attendance at
the meeting without protesting prior thereto or at its commencement the lack of
notice, or (iv) as otherwise excepted by law. A waiver of notice of any regular
or special meeting of the stockholders need not specify the purposes of the
meeting.
<PAGE>
If a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place are announced at the
meeting at which the adjournment is taken, except that if the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.4. Quorum. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present.
Section 1.5. Voting and Proxies. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the corporation, unless otherwise provided by law or by the Certificate of
Incorporation. Stockholders may vote either in person or by written proxy, but
no proxy shall be voted or acted upon after three years from its date, unless
the proxy provides for a longer period. Proxies shall be filed with the
secretary of the meeting, or of any adjournment thereof. Except as otherwise
limited therein, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the challenger.
A proxy with respect to stock held in the name of two or more persons shall be
valid if executed by one of them unless at or prior to exercise of the proxy the
corporation receives a specific written notice to the contrary from any one of
them.
Section 1.6. Action at Meeting. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office, and a majority of the votes properly cast upon any question other
than election to an office shall decide such question, except where a larger
vote is required by law, the Certificate of Incorporation or these by-laws. No
ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
Section 1.7. Voting of Shares of Certain Holders. Shares of stock of the
corporation standing in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, or proxy as the by-laws of such corporation
may prescribe, or, in the absence of such provision, as the board of directors
of such corporation may determine.
Shares of stock of the corporation standing in the name of a deceased
person, a minor ward or an incompetent person, may be voted by his
administrator, executor, court-appointed guardian or conservator without a
transfer of such shares into the name of such administrator, executor, court
appointed guardian or conservator. Shares of capital stock of the corporation
standing in the name of a trustee or fiduciary may be voted by such trustee or
fiduciary.
Shares of stock of the corporation standing in the name of a receiver may
be voted by such receiver, and shares held by or under the control of a receiver
<PAGE>
may be voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by which
such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledgor on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or its proxy shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by the corporation in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares.
Section 1.8. Stockholder Lists. The secretary (or the corporation's
transfer agent or other person authorized by these By-laws or by law) shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 1.9 Meeting Protocol. The board of directors and the chairman of a
meeting may adopt rules for the conduct of stockholder meetings and specify the
types of rules that may be adopted, including but not limited to, the
establishment of an agenda, rules relating to presence at the meeting of persons
other than stockholders, restrictions on entry at the meeting after commencement
thereof and the imposition of time limitations for questions by participants at
the meeting.
ARTICLE II.
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Board of Directors
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Section 2.1. Powers. Except as reserved to the stockholders by law, by the
Certificate of Incorporation or by these By-laws, the business of the
corporation shall be managed by and under the direction of the board of
directors, who shall have and may exercise all of the powers of the corporation.
In particular, and without limiting the foregoing, the board of directors shall
have the power to issue or reserve for issuance from time to time the whole or
any part of the capital stock of the corporation which may be authorized from
time to time to such person, for such consideration and upon such terms and
conditions as they shall determine, including the granting of options, warrants
or conversion or other rights to stock.
<PAGE>
Section 2.2. Number of Directors; Qualifications. The board of directors
shall consist of such number of directors, not less than three (3) nor more than
sixteen (16), as shall be fixed initially by the incorporator(s) and thereafter
from time to time by vote of a majority of the board of directors. No director
need be a stockholder.
Section 2.3. Nomination of Directors.
(a) Nominations for the election of directors at an annual meeting of the
stockholders, or special meeting in lieu of the annual meeting, may be made by
the board of directors or by any stockholder entitled to vote for the election
of directors. Stockholders entitled to vote in such election may nominate one or
more persons for election as directors only if written notice of such
stockholder's intent to make such nomination or nominations has been given
either by personal delivery, overnight (receipted) courier or by United States
mail, postage prepaid, to the secretary of the corporation not less than fifty
(50) nor more than seventy-five (75) days prior to the anniversary date of the
immediately preceding annual meeting or special meeting in lieu thereof
provided, however, that in the event that less than sixty-five (65) days' notice
of the date of the meeting is given or made to stockholders, notice by the
stockholder, to be timely, must be received not later than the fifteenth (15th)
day following the day on which such notice of the date of the annual meeting was
mailed.
(b) Each notice under subsection (a) shall set forth (i) the name, age,
business address and, if known, residence address of each nominee proposed in
such notice, (ii) the principal occupation or employment of each such nominee,
(iii) the class and such number of shares of stock of the corporation which are
beneficially owned by each such nominee, and (iv) such other information
relating to the nominee proposed by a stockholder as would be required to be
included in a proxy statement filed pursuant to the rules of the Securities and
Exchange Commission.
(c) The chairman of the meeting of stockholders shall determine whether or
not a nomination was made in accordance with the procedures of this Section 2.3,
and if he shall determine that it was not, he shall so declare to the meeting
and the defective nomination shall be disregarded.
Section 2.4. Election of Directors. The initial board of directors shall be
designated in the certificate of incorporation, or if not so designated, elected
by the incorporator(s) at the first meeting thereof. Thereafter, directors shall
be elected by the stockholders at their annual meeting or at any special
meeting, the notice of which specifies the election of directors as an item of
business for such meeting, subject to the provisions of the Certificate of
Incorporation and these By-laws.
Section 2.5. Vacancies. In the case of a vacancy in the board of directors
from death, resignation, disqualification or other cause, the election of a
director to fill such vacancy shall be by vote of a majority of the directors
then in office, whether or not constituting a quorum, or by the sole remaining
director. In the case of a vacancy in the board of directors resulting from
enlargement of the board, the election of a director to fill such vacancy shall
be by vote of a
<PAGE>
majority of the directors then in office, provided that a quorum is
present. The director thus elected shall hold office for a term until the
election of his successor in the manner provided in the Certificate of
Incorporation.
Section 2.6. Change in Size of the Board. The number of the board of
directors may be changed by vote of a majority of the directors then in office.
Section 2.7. Tenure and Resignation. The directors shall be elected and
serve in the manner provided in the Certificate of Incorporation. Any director
may resign by delivering or mailing postage prepaid a written resignation to the
corporation at its principal office or to the president, secretary or assistant
secretary, if any. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
Section 2.8. Removal. A director, whether elected by the stockholders or
directors, may be removed from office with or without cause at an annual or
special meeting of stockholders by vote of a majority of the stockholders
entitled to vote in the election of such directors, or for cause by a vote of a
majority of the directors then in office; provided, however, that a director may
be removed for cause only after reasonable notice and opportunity to be heard
before the body proposing to remove him.
Section 2.9. Meetings. Regular meetings of the board of directors may be
held without call or notice at such times and such places within or without the
State of Delaware as the board may, from time to time, determine, provided that
notice of the first regular meeting following any such determination shall be
given to directors absent from such determination. A regular meeting of the
board of directors shall be held without notice immediately after, and at the
same place as, the annual meeting of the stockholders or the special meeting of
the stockholders held in place of such annual meeting, unless a quorum of the
directors is not then present. Special meetings of the board of directors may be
held at any time and at any place designated in the call of the meeting when
called by the chairman of the board, president, or any three (3) of the
directors. Members of the board of directors or any committee elected thereby
may participate in a meeting of such board or committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other at the same time, and
participation by such means shall constitute presence in person at the meeting.
Section 2.10. Notice of Meeting. It shall be sufficient notice to a
director to send notice by mail at least seventy-two (72) hours before the
meeting addressed to such person at his usual or last known business or
residence address or to give notice to such person in person or by telephone at
least twenty-four (24) hours before the meeting. Notice shall be given by the
secretary, or in his absence or unavailability, may be given by an assistant
secretary, if any, or by the officer or directors calling the meeting. The
requirement of notice to any director may be waived by a written waiver of
notice, executed by such person before or after the meeting or meetings, and
filed with the records of the meeting, or by attendance at the meeting without
protesting prior thereto or at its commencement the lack of notice. A notice or
waiver of notice of a directors' meeting need not specify the purposes of the
meeting.
<PAGE>
Section 2.11. Agenda. Any lawful business may be transacted at a meeting of
the board of directors, notwithstanding the fact that the nature of the business
may not have been specified in the notice or waiver of notice of the meeting.
Section 2.12. Quorum. At any meeting of the board of directors, a majority
of the directors then in office shall constitute a quorum for the transaction of
business. Any meeting may be adjourned by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
Section 2.13. Action at Meeting. Any motion adopted by vote of the majority
of the directors present at a meeting at which a quorum is present shall be the
act of the board of directors, except where a different vote is required by law,
by the Certificate of Incorporation or by these By-laws. The assent in writing
of any director to any vote or action of the directors taken at any meeting,
whether or not a quorum was present and whether or not the director had or
waived notice of the meeting, shall have the same effect as if the director so
assenting was present at such meeting and voted in favor of such vote or action.
Section 2.14. Action Without Meeting. Any action by the directors may be
taken without a meeting if all of the directors consent to the action in writing
and the consents are filed with the records of the directors' meetings. Such
consent shall be treated for all purposes as a vote of the directors at a
meeting.
Section 2.15. Compensation. The members of the board of directors shall be
entitled to receive such reasonable compensation for attendance at meetings of
the board or for service on committees of the board or otherwise as from time to
time may be fixed by the board of directors.
Section 2.16. Committees. There shall be three (3) standing committees of
the board of directors, as follows:
(a) Executive Committee. During the intervals between the meetings of the
board of directors, the Executive Committee shall have and may exercise all the
powers of the board of directors in the management of the business and affairs
of the corporation, in such manner as such Committee shall deem best for the
interests of the corporation, in all cases in which specific instructions shall
not have been given by the board of directors.
(b) Audit Committee. The Audit Committee shall, among other things, (i)
select the firm of independent accountants that will audit the corporation; (ii)
discuss the scope and the results of the audit with the accountants; and (iii)
review the corporation's financial accounting and reporting principles.
(c) Compensation Committee. The Compensation Committee shall (i) review,
approve and recommend to the board of directors the terms and conditions of
incentive bonus plans applicable to corporate officers and key management
personnel; (ii) review and approve the annual salary of the chief executive
officer; and (iii) administer the Corporation's Section 423
<PAGE>
Stock Purchase Plan, the Corporation's 1988 Stock Option Plan, as amended,
and the Corporation's 1998 Equity Incentive Plan.
In addition, the board of directors may, by the affirmative vote of a
majority of the directors then in office, appoint other committees consisting of
three (3) or more directors and may by vote delegate to any such committee some
or all of their powers except those which by law, the Certificate of
Incorporation or these By-laws they may not delegate. In the absence or
disqualification of a member of a committee, the members of the committee
present and not disqualified, whether or not they constitute a quorum, may by
unanimous vote appoint another member of the board of directors to act at the
meeting in place of the absence or disqualified member. Unless the board of
directors shall otherwise provide, any such committee may make rules for the
conduct of its business, but unless otherwise provided by the board of directors
or such rules, its meetings shall be called, notice given or waived, its
business conducted or its action taken as nearly as may be in the same manner as
is provided in these By-laws with respect to meetings or for the conduct of
business or the taking of actions by the board of directors. The board of
directors shall have power at any time to fill vacancies in, change the
membership of, or discharge any such committee at any time. The board of
directors shall have power to rescind any action of any committee, but no such
rescission shall have retroactive effect.
ARTICLE III.
------------
Officers
--------
Section 3.1. Enumeration. The officers shall consist of a chairman of the
board, a president, a treasurer, a secretary and such other officers and agents
(including one or more vice-presidents, assistant treasurers and assistant
secretaries), as the board of directors may, in their discretion, determine.
Section 3.2. Election. The chairman of the board, president, treasurer and
secretary shall be elected annually by the directors at their first meeting
following the annual meeting of the stockholders or any special meeting held in
lieu of the annual meeting. Other officers may be chosen by the directors at
such meeting or at any other meeting.
Section 3.3. Qualification. An officer may, but need not, be a director or
stockholder. Any two or more offices may be held by the same person. Any officer
may be required by the directors to give bond for the faithful performance of
his duties to the corporation in such amount and with such sureties as the
directors may determine. The premiums for such bonds may be paid by the
corporation.
Section 3.4. Tenure. Except as otherwise provided by the Certificate of
Incorporation or these By-laws, the term of office of each officer shall be for
one year or until his successor is elected and qualified or until his earlier
resignation or removal.
Section 3.5. Removal. Any officer may be removed from office, with or
without cause, by the affirmative vote of a majority of the directors then in
office; provided, however, that an
<PAGE>
officer may be removed for cause only after reasonable notice and
opportunity to be heard by the board of directors prior to action thereon.
Section 3.6. Resignation. Any officer may resign by delivering or mailing
postage prepaid a written resignation to the corporation at its principal office
or to the president, secretary, or assistant secretary, if any, and such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some event.
Section 3.7. Vacancies. A vacancy in any office arising from any cause may
be filled for the unexpired portion of the term by the board of directors.
Section 3.8. Chairman of the Board. The chairman of the board shall be the
chief executive officer of the corporation. He shall preside at all meetings of
stockholders and at all meetings of the board of directors. He shall be
ex-officio a member of all standing committees. In general, he shall perform all
duties incident to the office of chairman of the board, as herein defined, and
all such other duties as from time to time may be assigned to him by the board
of directors.
Section 3.9. President. The president shall be the chief operating and
administrative officer of the corporation and as such shall have general
supervision of the affairs of the corporation, subject to the control of the
board of directors and the chairman of the board. Subject to the control and
direction of the board of directors and the chairman of the board, the president
may enter into any contract or execute and deliver any instrument in the name
and on behalf of the corporation. In the absence of disability of the chairman
of the board, the president shall perform all duties, other than presiding at
stockholders' and directors' meetings, and exercise the powers of the chairman
of the board. The president shall have such duties and powers as are commonly
incident to the office and such duties and powers as the chairman of the board
or the board of directors shall from time to time designate.
Section 3.10. Vice-President(s). The vice-president(s), if any, shall have
such powers and perform such duties as the board of directors, the chairman of
the board or the president may from time to time determine.
Section 3.11. Treasurer and Assistant Treasurers. The treasurer or if the
board of directors so determines, the vice-president, finance or the chief
financial officer, subject to the direction and under the supervision and
control of the board of directors, shall have general charge of the financial
affairs of the corporation. The treasurer shall have custody of all funds,
securities and valuable papers of the corporation, except as the board of
directors may otherwise provide. The treasurer shall keep or cause to be kept
full and accurate records of account which shall be the property of the
corporation, and which shall be always open to the inspection of each elected
officer and director of the corporation. The treasurer shall deposit or cause to
be deposited all funds of the corporation in such depository or depositories as
may be authorized by the board of directors. The treasurer shall have the power
to endorse for deposit or collection all notes, checks, drafts, and other
negotiable instruments payable to the corporation. The treasurer shall perform
such other duties as are incidental to the office, and such other duties as may
be
<PAGE>
assigned by the board of directors. All of the duties of the treasurer may
be performed by the vice-president, finance and/or the chief financial officer,
in the discretion of the board of directors.
Assistant treasurers, if any, shall have such powers and perform such
duties as the board of directors may from time to time determine.
Section 3.12. Secretary and Assistant Secretaries. The secretary shall
record, or cause to be recorded, all proceedings of the meetings of the
stockholders and directors (including committees thereof) in the book of records
of this corporation. The record books shall be open at reasonable times to the
inspection of any stockholder, director, or officer. The secretary shall notify
the stockholders and directors, when required by law or by these By-laws, of
their respective meetings, and shall perform such other duties as the directors
and stockholders may from time to time prescribe. The secretary shall have the
custody and charge of the corporate seal, and shall affix the seal of the
corporation to all instruments requiring such seal, and shall certify under the
corporate seal the proceedings of the directors and of the stockholders, when
required. In the absence of the secretary at any such meeting, a temporary
secretary shall be chosen who shall record the proceedings of the meeting in the
aforesaid books.
Assistant secretaries, if any, shall have such powers and perform such
duties as the board of directors may from time to time designate.
Section 3.13. Other Powers and Duties. Subject to these By-laws and to such
limitations as the board of directors may from time to time prescribe, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the board of directors.
ARTICLE IV.
-----------
Capital Stock
-------------
Section 4.1. Stock Certificates. Each stockholder shall be entitled to a
certificate representing the number of shares of the capital stock of the
corporation owned by such person in such form as shall, in conformity to law, be
prescribed from time to time by the board of directors. Each certificate shall
be signed by the chairman or president or vice-president and treasurer or
assistant treasurer or the secretary or assistant secretary or such other
officers designated by the board of directors from time to time as permitted by
law, shall bear the seal of the corporation, and shall express on its face its
number, date of issue, class, the number of shares for which, and the name of
the person to whom, it is issued. The corporate seal and any or all of the
signatures of corporation officers may be facsimile if the stock certificate is
manually counter-signed by an authorized person on behalf of a transfer agent or
registrar other than the corporation or its employee.
If an officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on, a certificate shall have ceased to be
such before the certificate is issued, it may be
<PAGE>
issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the time of its issue.
Section 4.2. Transfer of Shares. Title to a certificate of stock and to the
shares represented thereby shall be transferred only on the books of the
corporation by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented thereby.
Upon surrender of a certificate for the shares being transferred, a new
certificate or certificates shall be issued according to the interests of the
parties.
Section 4.3. Record Holders. Except as otherwise may be 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 thereto, regardless of any transfer, pledge or other
disposition of such stock, until the shares have been transferred on the books
of the corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the corporation of his
post office address.
Section 4.4. Record Date. In order that the corporation may determine the
stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty days prior to any
such action. In such case only stockholders of record on such record date shall
be so entitled notwithstanding any transfer of stock on the books of the
corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting, when no prior action by the board of
directors is necessary, shall be the day on which the first written consent is
expressed; and (iii) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
Section 4.5. Transfer Agent and Registrar for Shares of Corporation. The
board of directors may appoint a transfer agent and a registrar of the
certificates of stock of the corporation. Any transfer agent so appointed shall
maintain, among other records, a stockholders' ledger, setting forth the names
and addresses of the holders of all issued shares of stock of the corporation,
the number of shares held by each, the certificate numbers representing
<PAGE>
such shares, and the date of issue of such shares. Any registrar so
appointed shall maintain, among other records, a share register, setting forth
the total number of shares of each class of shares which the corporation is
authorized to issue and the total number of shares actually issued. The
stockholders' ledger and the share register are hereby identified as the stock
transfer books of the corporation; but as between the stockholders' ledger and
the share register, the names and addresses of stockholders, as they appear on
the stockholders' ledger maintained by the transfer agent shall be the official
list of stockholders of record of the corporation. The name and address of each
stockholder of record, as they appear upon the stockholders' ledger, shall be
conclusive evidence of who are the stockholders entitled to receive notice of
the meetings of stockholders, to vote at such meetings, to examine a complete
list of the stockholders entitled to vote at meetings, and to own, enjoy and
exercise any other property or rights deriving from such shares against the
corporation. Stockholders, but not the corporation, its directors, officers,
agents or attorneys, shall be responsible for notifying the transfer agent, in
writing, of any changes in their names or addresses from time to time, and
failure to do so will relieve the corporation, its other stockholders,
directors, officers, agents and attorneys, and its transfer agent and registrar,
of liability for failure to direct notices or other documents, or pay over or
transfer dividends or other property or rights, to a name or address other than
the name and address appearing in the stockholders' ledger maintained by the
transfer agent.
Section 4.6. Loss of Certificates. In case of the loss, destruction or
mutilation of a certificate of stock, a replacement certificate may be issued in
place thereof upon such terms as the board of directors may prescribe,
including, in the discretion of the board of directors, a requirement of bond
and indemnity to the corporation.
Section 4.7. Restrictions on Transfer. Every certificate, if any, for
shares of stock which are subject to any restriction on transfer, whether
pursuant to the Certificate of Incorporation, the By-laws or any agreement to
which the corporation is a party, shall have the fact of the restriction noted
conspicuously on the certificate and shall also set forth on the face or back
either the full text of the restriction or a statement that the corporation will
furnish a copy to the holder of such certificate upon written request and
without charge.
Section 4.8. Multiple Classes of Stock. The amount and classes of the
capital stock and the par value, if any, of the shares, shall be as fixed in the
Certificate of Incorporation. At all times when there are two or more classes of
stock, the several classes of stock shall conform to the description and the
terms and have the respective preferences, voting powers, restrictions and
qualifications set forth in the Certificate of Incorporation and these By-laws.
Every certificate issued when the corporation is authorized to issue more than
one class or series of stock shall set forth on its face or back either (i) the
full text of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series authorized to be issued,
or (ii) a statement of the existence of such preferences, powers, qualifications
and rights, and a statement that the corporation will furnish a copy thereof to
the holder of such certificate upon written request and without charge.
<PAGE>
ARTICLE V.
----------
Dividends
---------
Section 5.1. Declaration of Dividends. Except as otherwise required by law
or by the Certificate of Incorporation, the board of directors may, in its
discretion, declare what, if any, dividends shall be paid from the surplus or
from the net profits of the corporation for the current or preceding fiscal
year, or as otherwise permitted by law. Dividends may be paid in cash, in
property, in shares of the corporation's stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may
designate.
Section 5.2. Reserves. Before the payment of any dividend and before making
any distribution of profits, the board of directors, from time to time and in
its absolute discretion, shall have power to set aside out of the surplus or net
profits of the corporation such sum or sums as the board of directors deems
proper and sufficient as a reserve fund to meet contingencies or for such other
purpose as the board of directors shall deem to be in the best interests of the
corporation, and the board of directors may modify or abolish any such reserve.
ARTICLE VI.
-----------
Powers of Officers to Contract
------------------------------
With the Corporation
--------------------
Any and all of the directors and officers of the corporation,
notwithstanding their official relations to it, may enter into and perform any
contract or agreement of any nature between the corporation and themselves, or
any and all of the individuals from time to time constituting the board of
directors of the corporation, or any firm or corporation in which any such
director may be interested, directly or indirectly, whether such individual,
firm or corporation thus contracting with the corporation shall thereby derive
personal or corporate profits or benefits or otherwise; provided, that (i) the
material facts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii)
if the material facts as to such person's relationship or interest are disclosed
or are known to the stockholders entitled to vote thereon, and the contract is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee thereof,
or the stockholders. Any director of the corporation who is interested in any
transaction as aforesaid may nevertheless be counted in determining the
existence of a quorum at any meeting of the board of directors which shall
authorize or ratify any such transaction. This Article shall not be construed to
invalidate any contract or other transaction which would otherwise be valid
under the common or statutory law applicable thereto.
<PAGE>
ARTICLE VII.
------------
Indemnification
---------------
Section 7.1. Definitions. For purposes of this Article VII the following
terms shall have the meanings indicated:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the corporation or
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the express
written request of the corporation.
"Court" means the Court of Chancery of the State of Delaware, the court
in which the Proceeding in respect of which indemnification is sought by a
Covered Person shall have been brought or is pending, or another court having
subject matter jurisdiction and personal jurisdiction over the parties.
"Covered Person" means a person who is a present or former director or
Officer of the corporation and shall include such person's legal
representatives, heirs, executors and administrators.
"Disinterested" describes any individual, whether or not that
individual is a director, Officer, employee or agent of the corporation, who is
not and was not and is not threatened to be made a party to the Proceeding in
respect of which indemnification, advancement of Expenses or other action is
sought by a Covered Person.
"Expenses" shall include, without limitation, all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
"Good Faith" shall mean a Covered Person having acted in good faith and
in a manner such Covered Person reasonably believed to be in or not opposed to
the best interests of the corporation or, in the case of an employee benefit
plan, the best interests of the participants or beneficiaries of said plan, as
the case may be, and, with respect to any Proceeding which is criminal in
nature, having had no reasonable cause to believe such Covered Person's conduct
was unlawful.
"Improper Personal Benefit" shall include, but not be limited to, the
personal gain in fact by reason of a person's Corporate Status of a financial
profit, monies or other advantage not also accruing to the benefit of the
corporation or to the stockholders generally and which is unrelated to his usual
compensation including, but not limited to, (i) in exchange for the exercise of
influence over the corporation's affairs, (ii) as a result of the diversion of
corporate opportunity,
<PAGE>
or (iii) pursuant to the use or communication of confidential or inside
information for the purpose of generating a profit from trading in the
corporation's securities. Notwithstanding the foregoing, "Improper Personal
Benefit" shall not include any benefit, directly or indirectly, related to
actions taken in order to evaluate, discourage, resist, prevent or negotiate any
transaction with or proposal from any person or entity seeking control of, or a
controlling interest in, the corporation.
"Independent Counsel" means a law firm, or a member of a law firm, that
is experienced in matters of corporation law and may include law firms or
members thereof that are regularly retained by the corporation but not by any
other party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the standards of professional conduct then
prevailing and applicable to such counsel, would have a conflict of interest in
representing either the corporation or Covered Person in an action to determine
the Covered Person's rights under this Article.
"Officer" means the president, vice presidents, treasurer, assistant
treasurer(s), secretary, assistant secretary and such other executive officers
as are appointed by the board of directors of the corporation and explicitly
entitled to indemnification hereunder.
"Proceeding" includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation (including
any internal corporate investigation), administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, other than
one initiated by the Covered Person, but including one initiated by a Covered
Person for the purpose of enforcing such Covered Person's rights under this
Article to the extent provided in Section 7.14 of this Article. "Proceeding"
shall not include any counterclaim brought by any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2. Right to Indemnification in General.
(a) Covered Persons. The corporation may indemnify, and may advance
Expenses, to each Covered Person who is, was or is threatened to be made a party
or otherwise involved in any Proceeding, as provided in this Article and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to time permit.
The indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Covered Person.
(b) Employees and Agents. The corporation may, to the extent authorized
from time to time by the board of directors, grant indemnification and the
advancement of Expenses to any
<PAGE>
employee or agent of the corporation to the fullest extent of the
provisions of this Article with respect to the indemnification and advancement
of Expenses of Covered Persons.
Section 7.3. Proceedings Other Than Proceedings by or in the Right of
the Corporation. Each Covered Person may be entitled to the rights of
indemnification provided in this Section 7.3 if, by reason of such Covered
Person's Corporate Status, such Covered Person is, was or is threatened to be
made, a party to or is otherwise involved in any Proceeding, other than a
Proceeding by or in the right of the corporation. Each Covered Person may be
indemnified against Expenses, judgments, penalties, fines and amounts paid in
settlements, actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection with such Proceeding or any claim, issue
or matter therein, if such Covered Person acted in Good Faith and such Covered
Person has not been adjudged during the course of such proceeding to have
derived an Improper Personal Benefit from the transaction or occurrence forming
the basis of such Proceeding.
Section 7.4. Proceedings by or in the Right of the Corporation. Each
Covered Person may be entitled to the rights of indemnification provided in this
Section 7.4 if, by reason of such Covered Person's Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is otherwise
involved in any Proceeding brought by or in the right of the corporation to
procure a judgment in its favor. Such Covered Person may be indemnified against
Expenses, judgments, penalties, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection with such Proceeding if such Covered Person acted in Good Faith and
such Covered Person has not been adjudged during the course of such proceeding
to have derived an Improper Personal Benefit from the transaction or occurrence
forming the basis of such Proceeding. Notwithstanding the foregoing, no such
indemnification shall be made in respect of any claim, issue or matter in such
Proceeding as to which such Covered Person shall have been adjudged to be liable
to the corporation if applicable law prohibits such indemnification; provided,
however, that, if applicable law so permits, indemnification shall nevertheless
be made by the corporation in such event if and only to the extent that the
Court which is considering the matter shall so determine.
Section 7.5. Indemnification of a Party Who is Wholly or Partly
Successful. Notwithstanding any provision of this Article to the contrary, to
the extent that a Covered Person is, by reason of such Covered Person's
Corporate Status, a party to or is otherwise involved in and is successful, on
the merits or otherwise, in any Proceeding, such Covered Person shall be
indemnified to the maximum extent permitted by law, against all Expenses,
judgments, penalties, fines, and amounts paid in settlement, actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection therewith. If such Covered Person is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but
less than all claims, issues or matters in such Proceeding, the corporation
shall indemnify such Covered Person to the maximum extent permitted by law,
against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such
Covered Person's behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7.5 and without limitation, the
termination of any
<PAGE>
claim, issue or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
Section 7.6. Indemnification for Expenses of a Witness. Notwithstanding
any provision of this Article to the contrary, to the extent that a Covered
Person is, by reason of such Covered Person's Corporate Status, a witness in any
Proceeding, such Covered Person shall be indemnified against all Expenses
actually and reasonably incurred by such Covered Person or on such Covered
Person's behalf in connection therewith.
Section 7.7. Advancement of Expenses. Notwithstanding any provision of
this Article to the contrary, the corporation may advance all reasonable
Expenses which, by reason of a Covered Person's Corporate Status, were incurred
by or on behalf of such Covered Person in connection with any Proceeding, within
thirty (30) days after the receipt by the corporation of a statement or
statements from such Covered Person requesting such advance or advances, whether
prior to or after final disposition of such Proceeding. Such statement or
statements shall reasonably evidence the Expenses incurred by the Covered Person
and shall include or be preceded or accompanied by an undertaking by or on
behalf of the Covered Person to repay any Expenses if such Covered Person shall
be adjudged to be not entitled to be indemnified against such Expenses. Any
advance and undertaking to repay pursuant to this Section 7.7 may be unsecured
interest-free, as the corporation sees fit. Advancement of Expenses pursuant to
this Section 7.7 shall not require approval of the board of directors or the
stockholders of the corporation, or of any other person or body. The secretary
of the corporation shall promptly advise the Board in writing of the request for
advancement of Expenses, of the amount and other details of the request and of
the undertaking to make repayment provided pursuant to this Section 7.7.
Section 7.8. Notification and Defense of Claim. Promptly after receipt
by a Covered Person of notice of the commencement of any Proceeding, such
Covered Person shall, if a claim is to be made against the corporation under
this Article, notify the corporation of the commencement of the Proceeding. The
failure to notify the corporation will not relieve the corporation from any
liability which it may have to such Covered Person otherwise than under this
Article. With respect to any such Proceedings to which such Covered Person
notifies the corporation:
(a) The corporation will be entitled to participate in the defense at
its own expense.
(b) Except as otherwise provided below in this subparagraph (b), the
corporation (jointly with any other indemnifying party similarly notified) will
be entitled to assume the defense with counsel reasonably satisfactory to the
Covered Person. After notice from the corporation to the Covered Person of its
election to assume the defense of a suit, the corporation will not be liable to
the Covered Person under this Article for any legal or other expenses
subsequently incurred by the Covered Person in connection with the defense of
the Proceeding other than reasonable costs of investigation or as otherwise
provided below in this subparagraph (b). The Covered Person shall have the right
to employ his own counsel in such Proceeding but the fees and expenses of such
counsel incurred after notice from the corporation of its assumption of the
defense shall be at the expense of the Covered Person except as provided in this
paragraph. The
<PAGE>
fees and expenses of counsel shall be at the expense of the corporation if
(i) the employment of counsel by the Covered Person has been authorized by the
corporation, (ii) the Covered Person shall have concluded reasonably that there
may be a conflict of interest between the corporation and the Covered Person in
the conduct of the defense of such action and such conclusion is confirmed in
writing by the corporation's outside counsel regularly employed by it in
connection with corporate matters, or (iii) the corporation shall not in fact
have employed counsel to assume the defense of such Proceeding. The corporation
shall be entitled to participate in, but shall not be entitled to assume the
defense of any Proceeding brought by or in the right of the corporation or as to
which the Covered Person shall have made the conclusion provided for in (ii)
above and such conclusion shall have been so confirmed by the corporation's said
outside counsel.
(c) Notwithstanding any provision of this Article to the contrary, the
corporation shall not be obligated to indemnify the Covered Person under this
Article for any amounts paid in settlement of any Proceeding effected without
its written consent. The corporation shall not settle any Proceeding or claim in
any manner which would impose any penalty, limitation or disqualification of the
Covered Person for any purpose without such Covered Person's written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d) If it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b) above, payment to
the Covered Person of the additional amounts for which he is to be indemnified
shall be made within ten (10) days after such determination.
Section 7.9. Procedures.
(a) Method of Determination. A determination (as provided for by this
Article or if required by applicable law in the specific case) with respect to a
Covered Person's entitlement to indemnification shall be made either (a) by the
board of directors by a majority vote of a quorum consisting of Disinterested
directors, or (b) in the event that a quorum of the board of directors
consisting of Disinterested directors is not obtainable or, even if obtainable,
such quorum of Disinterested directors so directs, by Independent Counsel in a
written determination to the board of directors, a copy of which shall be
delivered to the Covered Person seeking indemnification, or (c) by the vote of
the holders of a majority of the corporation's capital stock outstanding at the
time entitled to vote thereon.
(b) Initiating Request. A Covered Person who seeks indemnification
under this Article shall submit a Request for Indemnification, including such
documentation and information as is reasonably available to such Covered Person
and is reasonably necessary to determine whether and to what extent such Covered
Person is entitled to indemnification.
(c) Presumptions. In making a determination with respect to entitlement
to indemnification hereunder, the person or persons or entity making such
determination shall not presume that the Covered Person is or is not entitled to
indemnification under this Article.
<PAGE>
(d) Burden of Proof. Each Covered Person shall bear the burden of going
forward and demonstrating sufficient facts to support his claim for entitlement
to indemnification under this Article. That burden shall be deemed satisfied by
the submission of an initial Request for Indemnification pursuant to Section
7.9(b) above.
(e) Effect of Other Proceedings. The termination of any Proceeding or
of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of guilty or of nolo contendere or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of a Covered Person to indemnification or create a
presumption that a Covered Person did not act in Good Faith.
(f) Actions of Others. The knowledge, actions, or failure to act, of
any director, officer, employee, agent, trustee or fiduciary of the enterprise
whose daily activities the Covered Person was actually responsible for may be
imputed to a Covered Person for purposes of determining the right to
indemnification under this Article.
Section 7.10. Action by the Corporation. Any action, payment, advance
determination other than a determination made pursuant to Section 7.9(a) above,
authorization, requirement, grant of indemnification or other action taken by
the corporation pursuant to this Article shall be effected exclusively through
any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11. Non-Exclusivity. The rights of indemnification and to
receive advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these By-Laws,
any agreement, a vote of stockholders or a resolution of the board of directors,
or otherwise. No amendment, alteration, rescission or replacement of this
Article or any provision hereof shall be effective as to an Covered Person with
respect to any action taken or omitted by such Covered Person in such Covered
Person's Corporate Status or with respect to any state of facts then or
previously existing or any Proceeding previously or thereafter brought or
threatened based in whole or to the extent based in part upon any such state of
facts existing prior to such amendment, alteration, rescission or replacement.
Section 7.12. Insurance. The corporation may maintain, at its expense,
an insurance policy or policies to protect itself and any Covered Person,
officer, employee or agent of the corporation or another enterprise against
liability arising out of this Article or otherwise, whether or not the
corporation would have the power to indemnify any such person against such
liability under the Delaware General Corporation Law.
Section 7.13. No Duplicative Payment. The corporation shall not be
liable under this Article to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that a Covered Person has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
<PAGE>
Section 7.14. Expenses of Adjudication. In the event that any Covered
Person seeks a judicial adjudication, or an award in arbitration, to enforce
such Covered Person's rights under, or to recover damages for breach of, this
Article, the Covered Person shall be entitled to recover from the corporation,
and shall be indemnified by the corporation against, any and all expenses (of
the types described in the definition of Expenses in Section 7.1 of this
Article) actually and reasonably incurred by such Covered Person in seeking such
adjudication or arbitration, but only if such Covered Person prevails therein.
If it shall be determined in such adjudication or arbitration that the Covered
Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately prorated.
Section 7.15. Severability. If any provision or provisions of this
Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each portion of any
Section of this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed so as to
give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII.
-------------
Miscellaneous Provisions
------------------------
Section 8.1. 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.
Section 8.2. Fiscal Year. Except as from time to time otherwise
provided by the board of directors, the fiscal year of the corporation shall
end on October 31 of each year.
Section 8.3. Corporate Seal. The board of directors shall have the
power to adopt and alter the seal of the corporation.
Section 8.4. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes, and other obligations authorized to be executed by an
officer of the corporation on its behalf shall be signed by the president or the
treasurer except as the board of directors may generally or in particular cases
otherwise determine.
<PAGE>
Section 8.5. Voting of Securities. Unless the board of directors
otherwise provides, the president or the treasurer may waive notice of and act
on behalf of this corporation, or appoint another person or persons to act as
proxy or attorney in fact for this corporation with or without discretionary
power and/or power of substitution, at any meeting of stockholders or
shareholders of any other corporation or organization, any of whose securities
are held by this corporation.
Section 8.6. Evidence of Authority. A certificate by the secretary or
any assistant secretary as to any action taken by the stockholders, directors or
any officer or representative of the corporation shall, as to all persons who
rely thereon in good faith, be conclusive evidence of such action. The exercise
of any power which by law, by the Certificate of Incorporation, or by these
By-laws, or under any vote of the stockholders or the board of directors, may be
exercised by an officer of the corporation only in the event of absence of
another officer or any other contingency shall bind the corporation in favor of
anyone relying thereon in good faith, whether or not such absence or contingency
existed.
Section 8.7. Corporate Records. The original, or attested copies, of
the Certificate of Incorporation, By-laws, records of all meetings of the
incorporators and stockholders, and the stock transfer books (which shall
contain the names of all stockholders and the record address and the amount of
stock held by each) shall be kept in Delaware at the principal office of the
corporation, or at an office of the corporation, or at an office of its transfer
agent or of the secretary or of the assistant secretary, if any. Said copies and
records need not all be kept in the same office. They shall be available at all
reasonable times to inspection of any stockholder for any purpose but not to
secure a list of stockholders for the purpose of selling said list or copies
thereof or for using the same for a purpose other than in the interest of the
applicant, as a stockholder, relative to the affairs of the corporation.
Section 8.8. Charitable Contributions. The board of directors from time
to time may authorize contributions to be made by the corporation in such
amounts as it may determine to be reasonable to corporations, trusts, funds or
foundations organized and operated exclusively for charitable, scientific or
educational purposes, no part of the net earning of which inures to the private
benefit of any stockholder or individual.
ARTICLE IX.
-----------
Amendments
----------
Section 9.1. Amendment by Stockholders. Prior to the issuance of stock,
these By-laws may be amended, altered or repealed by the incorporator(s) by
majority vote. After stock has been issued, these By-laws may be amended altered
or repealed by the stockholders at any annual or special meeting by vote or a
majority of all shares outstanding and entitled to vote, except that where the
effect of the amendment would be to reduce any voting requirement otherwise
required by law, the Certificate of Incorporation or these By-laws, such
amendment shall require the vote that would have been required by such other
provision. Notice and a copy of any proposal to amend these By-laws must be
included in the notice of meeting of stockholders at which action is taken upon
such amendment.
<PAGE>
Section 9.2. Amendment by Board of Directors. These By-laws may be
amended or altered by the board of directors at a meeting duly called for the
purpose by majority vote of the directors then in office, except as otherwise
provided by law or by the Certificate of Incorporation. Any amendment of these
By-laws by the board of directors may be altered or repealed by the stockholders
at any annual or special meeting of stockholders.
<PAGE>
CONTACT: Mark Wachs
Mark Wachs and Associates
(212) 832-2800
e-mail: [email protected]
Joseph G. Mahler
FuelCell Energy, Inc.
(203) 825-6000
e-mail: [email protected]
FOR IMMEDIATE RELEASE
---------------------
ENERGY RESEARCH CORPORATION ANNOUNCES
NEW NAME AND TICKER SYMBOL
Company to Change Name to FuelCell Energy, Inc. and to begin trading under
- --------------------------------------------------------------------------------
ticker symbol "FCL"
- ------------------
Danbury, Conn., September 20, 1999 - FuelCell Energy, Inc. (AMEX:FCL) will
begin trading on Tuesday, September 21, 1999 when the American Stock Exchange
opens under the Company's new ticker symbol, FCL, in conjunction with the
merger, effective September 21, 1999, of Energy Research Corporation (AMEX: ERC)
into the newly formed, wholly-owned Delaware subsidiary, FuelCell Energy, Inc.
The merger follows shareholder approval earlier this month of the name
change, reincorporation in the state of Delaware and increase in authorization
of the Company's common stock from 8 million to 20 million shares.
As the surviving corporation in the merger, FuelCell Energy, Inc. will
succeed to all of the assets and liabilities of the Company. Effective September
21, 1999, each outstanding share of the Company's Common Stock will be
automatically converted into one share of common stock of FuelCell Energy, Inc.
Shareholders will not need to exchange their existing stock certificates for
stock certificates of FuelCell Energy, Inc. The new CUSIP Number of FuelCell
Energy's Common Stock is 35952H 10 6.
The Company also has changed its Web address to www.fuelcellenergy.com.
-MORE-
<PAGE>
FUELCELL ENERGY, INC.
ERC ANNOUNCES NAME CHANGE AND TICKER SYMBOL
PAGE TWO
Commenting on the recent changes, Jerry Leitman, President and CEO, stated:
"Our new name is intended to strengthen the Company's image as a manufacturer of
fuel cells, specifically the Company's Direct FuelCell(tm) technology, for the
commercial market. This, along with the corporate legal advantages we expect to
gain by being incorporated in Delaware and the increase in authorization of
shares, will contribute to a more competitive position for the Company in
today's marketplace."
Increasing the number of authorized shares of common stock is intended to
give the Company flexibility in growing its business in the future. The
additional authorized shares are intended for future use in connection with
implementation of financings, mergers and acquisitions, employee benefit plans
and other business purposes.
This press release contains forward looking statements, including
statements regarding the effective date of the reincorporation, the Company's
plans and expectations regarding the development and commercialization of its
fuel cell technology. All forward-looking statements are subject to risks and
uncertainties that could cause actual results to differ materially from those
projected. Factors that could cause such a difference include, without
limitation, the risk that the merger does not become effective when anticipated,
the risk that commercial field trials of the Company's products will not occur
when anticipated, general risks associated with product development,
manufacturing and introduction, changes in the utility regulatory environment,
potential volatility of energy prices, rapid technological change, and
competition, as well as other risks set forth in the Company's filings with the
Securities and Exchange Commission. The forward-looking statements contained
herein speak only as of the date of this press release. The Company expressly
disclaims any obligation or undertaking to release publicly any updates or
revisions to any such statement to reflect any change in the Company's
expectations or any change in events, conditions or circumstances on which any
such statement is based.
###
