Attached files
Exhibit
3.3
Amendment No. 1 to the Bylaws
of
Advanced Environmental Recycling Technologies, Inc.,
a Delaware corporation (the “Corporation”)
by
Written Consent of the Board of Directors of the Company (the
“Board”)
Certain
capitalized terms not otherwise defined herein shall have the
meanings ascribed to such term in the Bylaws of the Corporation (as
the same may be amended, restated or otherwise modified, the
“Bylaws”).
PRELIMINARY STATEMENT
WHEREAS,
the Board wishes to amend the Bylaws to alter certain provisions;
and
WHEREAS,
pursuant to section 6.19 of the Bylaws, the Bylaws may be amended
by the Board, and the Board has consented to the execution of this
Amendment No. 1 in accordance with the terms of the
Bylaws.
NOW,
THEREFORE, the Bylaws are hereby amended as follows:
1.
Addition of Section 6.20. Article VI is
hereby amended by adding a new Section 6.20 to the end
thereof:
6.20.
Forum for Adjudication of
Disputes. Unless the Corporation consents in writing to the
selection of an alternative forum, the Court of Chancery in the
State of Delaware (the “Court of Chancery”) shall
be the sole and exclusive forum for any stockholder (including a
beneficial owner) to bring (i) any derivative action or proceeding
brought on behalf of the Corporation, (ii) any action asserting a
claim of breach of fiduciary duty owed by any director, officer or
other employee of the Corporation to the Corporation or the
Corporation’s stockholders, (iii) any action asserting a
claim against the Corporation, its directors, officers or employees
arising pursuant to any provision of these Bylaws, the Certificate
of Incorporation or the General Corporation Law of the State of
Delaware, (iv) any action asserting a claim against the Corporation
or its directors, officers or employees governed by the internal
affairs doctrine, or (v) any action to interpret, apply, enforce or
determine the validity of these Bylaws or the Certificate of
Incorporation, except for, as to each of clauses (i) through (v)
above, any claim (a) as to which the Court of Chancery determines
that there is an indispensable party not subject to the
jurisdiction of the Court of Chancery (and the indispensable party
does not consent to the personal jurisdiction of the Court of
Chancery within ten (10) days following such determination), or (b)
for which the Court of Chancery does not have subject matter
jurisdiction. If any provision or provisions of this Section 6.20
shall be held to be invalid, illegal or unenforceable as applied to
any person or entity or circumstance for any reason whatsoever,
then, to the fullest extent permitted by law, the validity,
legality and enforceability of such provisions in any other
circumstance and of the remaining provisions of this Section 6.20
(including, without limitation, each portion of any sentence of
this Section 6.20 containing any such provision held to be invalid,
illegal or unenforceable that is not itself held to be invalid,
illegal or unenforceable) and the application of such provision to
other persons or entities and circumstances shall not in any way be
affected or impaired thereby. Any person or entity purchasing or
otherwise acquiring any interest in shares of capital stock of the
Corporation shall be deemed to have notice of and consented to the
provisions of this Section 6.20. Failure to enforce this Section
6.20 would cause the Corporation irreparable harm and the
Corporation shall be entitled to equitable relief, including
injunction and specific performance, to enforce this Section
6.20.
2.
Entire Agreement. This Amendment No. 1,
the Bylaws and the other agreements and documents referred to
herein and therein contain the complete agreement and understanding
among the parties with respect to the subject matter hereof, and
terminate, supersede, and preempt any prior understandings,
agreements, or representations by or among the parties, written or
oral, which may have related to the subject matter hereof in any
way.
3.
Governing Law. This Amendment No. 1
shall be governed by, and construed in accordance with, the laws of
the State of Delaware without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of
Delaware or any other jurisdiction) that would cause the
application of the laws of any other jurisdiction other than the
State of Delaware.
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