SOCA: Fostering SOFC Technology Commercialization

BYLAWS OF SOLID OXIDE FUEL CELL COMMERCIALIZATION ASSOCIATION (SOCA) INCORPORATED
A Pennsylvania Non-profit Corporation
February 13, 1998—Date Originally Enacted
March 24, 2001—Date of First Bylaws Revision

Name and Registered Office

Section 1 Name
The name of the corporation shall be the Solid Oxide Fuel Cell Commercialization Association, Inc. (hereinafter “SOCA”). The corporation shall operate as a Pennsylvania nonprofit corporation and shall have such powers as are now or as may hereafter be granted by the Pennsylvania Nonprofit Corporation Law of 1988 (hereinafter the “Nonprofit Corporation Law”), as amended from time to time. The corporation shall operate as a nonprofit, tax exempt organization under Section 501(c)(6) of the Internal Revenue Code.

Section 2 Registered Office:
The registered office and place of business of SOCA shall be located at: George Westinghouse Research and Technology Park, 1310 Beulah Road, Pittsburgh, Pennsylvania, 15235, subject to transfer as may be permitted by law.
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Purpose and Objectives

Section 1 Purpose:
The purpose for which SOCA is organized is to provide a means by which companies engaged in energy related businesses within the United States and internationally may voluntarily coordinate their efforts, assist in the development of products and applications of interest to the power generation industry, based on Tubular Solid Oxide Fuel Cell technology developed in the United States (hereinafter “SOFC Technology”). SOCA is also intended to be an organization that fosters information exchange on SOFC Technology products and applications between interested companies.

Section 2 Objectives:
In order to satisfy its purpose, SOCA among other activities will pursue the following objectives:

Inform SOCA Members of the attributes and development status of SOFC Technology and how SOFC Technology can be used in applications of interest to the membership.

Assess SOFC Technology market entry systems in terms of satisfying the market application requirements of the Members and recommend as appropriate requirements for and attributes of SOFC Technology products.

Assess from time-to-time market ambiance for SOFC Technology systems.

Have SOCA Members volunteer to represent SOFC Technology before and with departments and agencies of the United States government and other governments worldwide, policy makers, governmental committees and subcommittees, and local governments, and other public and private organizations whose activities affect the continued development and commercialization of SOFC Technology.

Inform other public and private organizations including the general public on the definition, performance and economic advantages, uses and applications of SOFC Technology.

Encourage the use of SOFC Technology through promotional and/or market development programs.
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Membership

Section 1 Classes:
The membership of SOCA shall consist of two classes of Members, the first class to be designated as “Full Members’’ and the second class to be designated as “Associate Members.”

Section 2 Qualifications:
Full Members: Full membership shall be granted to firms, including utilities, corporations, partnerships and joint ventures, engaged in related businesses and interested in fostering the development and commercialization of SOFC Technology. Each Full Member shall appoint a representative who shall serve as a Director of SOCA and shall be eligible to serve as an Officer of SOCA or on the Governing Committee.
To be eligible to serve as a Director of SOCA, a person shall be actively engaged in the business of a Full Member as an employee of such Full Member and shall be designated by that Full Member to represent it as a Director. If any Director shall cease to be an employee of the Full Member he or she represents, he or she shall cease to be a Director. Each Full Member shall have the right to appoint a substitute Director at any time by written notification. The substitution shall take place immediately upon receipt by the SOCA Administrator of written notification signed by the Director or another authorized representative of the Full Member.
Associate Members: Associate membership shall be granted to relevant government agencies such as the Department of Energy and the Environmental Protection Agency and industry agencies and organizations who are supporters of SOFC Technology such as the Electric Power Research Institute. Associate Members shall not have a representative serve on the Board of Directors or as an Officer of SOCA or on the Governing Committee,and shall have no vote, but shall be eligible to attend and participate in meetings of the Board of Directors and committees that are established by either the Governing Committee or the Board of Directors
Siemens Westinghouse Power Corporation, Stationary Fuel Cells. Siemens Westinghouse Power Corpoation, Stationary Fuel Cellsí representatives (not to exceed three representatives unless approved by the Board of Directors or the Governing Committee) and others that Siemens Westinghouse Power Corporation, Stationary Fuel Cells may designate (with the approval of the Board of Directors or Governing Committee), shall be eligible to attend general and special meetings of the Board of Directors, meetings of the Governing Committee, and to participate in meetings of standing and ad hoc committees that are established by either the Governing Committee or the Board of Directors. Siemens Westinghouse Power Corporation, Stationary Fuel Cells representatives and designates shall not be eligible to be a member of the Board of Directors or the Governing Committee.

Section 3 Application for Membership:
Application for membership in SOCA shall be in writing, in a form approved by the Governing Committee, and shall state the name, location and nature of the business of the applicant and such other information as shall be determined by the Governing Committee, and shall contain an agreement that if admitted to membership, the applicant will abide by all provisions of SOCA’s Articles of Incorporation and its Bylaws, will pay all membership fees, and will adhere to the provisions of this Article. The Governing Committee shall have final authority to resolve any questions concerning whether an applicant satisfies the qualifications for membership under Section 2. If the Governing Committee disapproves an Application for Membership, the applicant may appeal in writing to the Board of Directors stating why the applicant should be approved, and if the application is then accepted by majority vote of the Board of Directors, the applicant will be granted membership in SOCA.

Section 4 Voluntary Termination of Membership:
A Member may resign at any time by giving written notice of its resignation to the Governing Committee. A Member shall be deemed to have voluntarily terminated its membership if its membership fees remain unpaid for greater than 90 days. The resignation shall take effect immediately upon receipt by the Governing Committee. If the membership of a Full Member is voluntarily terminated pursuant to this section, the person designated as a Director by the Full Member shall be deemed to have been removed from office at the same time.
Section 5 Involuntary Termination of Membership:
The membership of any Full or Associate Member may be terminated by the Board of Directors following a hearing, with due notice and upon proof being submitted to the Board of Directors that such Member has failed co comply with any provision of SOCA’s Articles of Incorporation or Bylaws or any rule or regulation made thereunder. If the membership of a Full Member is involuntary terminated pursuant to this section, the person designated as a Director by the Full Member shall be deemed to have been removed from office at the same time.

Section 6 Membership Financial obligations:
Each Full Member by joining SOCA assumes and agrees to pay the Membership Fee, as provided in Article VIII of these Bylaws. The membership termination of any Member shall not in any way affect such Member’s indebtedness to SOCA for the full fiscal year as provided in Article VIII.

Section 7 Transfer of Membership.
Membership in SOCA is not transferable or assignable without a determination by the Governing Committee that the transferee company, agency or organization satisfies all requirements for the class of membership being transferred or assigned.

Section 8 Disclaimer:
Membership in SOCA does not in of itself constitute an endorsement of SOFC Technology by the Member.
Section 9 Voting Rights:
Members shall have the right to participate in the affairs of the corporation only to the extent and in the manner set forth in Section 2. Members shall not be entitled to vote as Members but rather through their designated representatives on the Board of Directors. Any provision of the Nonprofit Corporation Law or any other provision of law requiring notice to, the presence or meeting of, or the vote, consent or other action by Members of the corporation in connection with any matter shall be satisfied by notice to, the presence or meeting of, or the vote, consent or other action by the Board of
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Notice

Section 1 Manner of Giving Notice:
Whenever written notice is required to be given to any person under the provisions of the Nonprofit Corporation Law or in accordance with these Bylaws, it may be given to the person either personally or by sending a copy thereof by first class or express mail, postage prepaid, or by telegram (with messenger service specified), telex or TWX (with answer back received) or courier service, charges prepaid, or by facsimile transmission, to the address (or to the telex, TWX or fax number) of the person appearing on the books of SOCA, or in the case of Directors, supplied by the Director to SOCA for the purpose of notice. If notice is sent by mail, telegraph or courier service, it shall be deemed to have been given to the person entitled thereto when deposited in the United States mail or with a telegraph office or courier service for delivery to that person or, in the case of telex or TWX, when dispatched, or in the case of fax, when received. A notice of meeting shall specify the place, day and hour of the meeting and any other information required by any other provision of the Nonprofit Corporation Law, the Articles of Incorporation or these Bylaws.
Section 2 Modification of Proposal Contained in Notice:
Whenever the language of a proposed resolution is included in a written notice of a meeting required to be given under the provisions of the Nonprofit Corporation Law or the Articles of Incorporation or these Bylaws, the meeting considering the resolution may, without further notice, adopt it with such clarifying or other amendments as do not enlarge its original purpose
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Officers and Duties

Section 1 Officers:
The Officers of SOCA shall be a Chairperson, a ViceChairperson, a Secretary, and a Treasurer. The Officers shall be elected by the Board of Directors at its annual meeting and shall hold office for a term of one year commencing immediately, or until their successors are elected. Any Officer may resign by providing written notice to SOCA.
The resignation shall be effective upon receipt thereof by SOCA or at such subsequent time as may be specified in the notice of resignation.
At least 30 days prior to the annual meeting, a nominating committee of the Board of Directors appointed by the Chairperson will propose to the Board a list of nominees (each of whom shall be a Director) for Officers of SOCA. Except as otherwise may be provided herein, the Officers shall perform the duties that are normally associated with their respective offices and shall also perform such other duties as the Board of Directors may, from time to time, delegate to them.

Section 2 Removal of Officers:
Any Officer of SOCA may be removed by the Board of Directors with or without cause.

Section 3 Vacant Offices:
Any vacancy in the offices of SOCA may be temporarily filled by majority vote of the Governing Committee until the next meeting of the Board of Directors.
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Management

Section 1 Board of Directors:
The business and affairs of SOCA shall be managed by a Board of Directors, which shall consist of the designated representatives of the Full Members of SOCA as provided in Section 2 of Article III.

Section 2 Term of Office:
Each Director shall hold office for a term of one year or until the earlier termination of the membership of the Full Member appointing the Director, or until a successor has been appointed, or until his or her earlier death, resignation or removal.

Section 3 Resignation of Director:
Any Director may resign at any time upon written notice to SOCA. The resignation shall be effective upon receipt thereof by SOCA or at such subsequent time as shall be specified in the notice of resignation.

Section 4 Removal of Directors.
A Director may be removed from office only by action of the Full Member that appointed the Director, except as provided in Sections 4 and 5 of Article III.

Section 5 General Meetings of the Board of Directors:
A General Meeting of the Board of Directors shall be held once each year.

Section 6 Special Meetings:
Special meetings of the Board of Directors may be called by the Chairperson, or by request in writing to the Chairperson of 35% of the Directors stating a specific proposes whereupon the Chairperson shall call a meeting within 45 days giving at least 30 days written notice.

Section 7 Quorum:
Onethird of the Directors in office shall constitute a quorum and the acts of a majority of the Directors present at a meeting at which a quorum is present shall be the acts of the Board of Directors.
Section 8 Use of Conference Telephone and Similar Equipment:
When authorized with respect to a particular meeting by the Governing Committee or the Board of Directors, one or more persons may participate in a meeting of the Board of Directors by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at the meeting.

Section 9 Voting:
Each Director shall have one vote.

Section 10 Consent of Directors in Lieu of Meeting.
Any action required or permitted to be taken at a meeting of Directors may be taken without a meeting if, prior or subsequent to the action, a consent or consent thereto by all of the Directors who would be entitled to vote at a meeting for such purpose shall be filed with the Secretary of SOCA.

Section 11 Governing Committee.
The Governing Committee of SOCA shall consist of the Officers and the chairpersons of any standing committees designated by the Board of Directors. A Siemens Westinghouse Power Corporation, Stationary Fuel Cells representative shall be a nonvoting member of the Governing Committee. The Governing Committee, during the intervals between meetings of the Board of Directors, shall possess and exercise the full powers of the Board of Directors except for those specifically excluded by the Board of Directors or prohibited by law from being delegated to a committee. The Chairperson of SOCA shall serve as the Chairperson of the Governing Committee. The Governing Committee will hold meetings at such times and places as may be deemed suitable for the transaction of the business of SOCA. The Governing Committee cannot reverse, ignore or amend actions approved by the Board of Directors.

Section 12 Committees:
Standing committees may be established by the Board of Directors. The Board of Directors or Governing Committee may from time to time appoint ad hoc committees from among the Members of SOCA. Any committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all of the powers and authority granted thereto by the Board of Directors except that a committee shall not have any power or authority as to the following:

The creation or filling of vacancies in the Board of Directors.

The adoption, amendment or repeal of these Bylaws.

The amendment or repeal of any resolution of the Board that by its terms is amendable or repealable only by the Board.

Action on matters committed by resolution of the Board of Directors to another committee of the Board of Directors.

Section 13 Committee Term:
Each committee of the Board of Directors shall serve at the pleasure of the Board of Directors.

Section 14 Administrator:
The Board of Directors shall appoint an Administrator to whom it may delegate responsibility for the daytoday affairs of SOCA under the direction and supervision of the Governing Committee” The Administrator shall be a nonvoting member of the Governing Committee.
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Liability and Indemnification

Section 1 Limitation of Director and
Administrator Liability:
A Director of SOCA shall not be personally liable, as such, to SOCA for monetary damages for any action taken, or failure to take any action, unless (1) the Director has breached or failed to perform the duties of his office under 15 Pa.C.S. Subch. 57B, and (2) the breach or failure to perform constitutes selfdealing, willful misconduct or recklessness. The provisions of this Section shall not, however, apply to (1) the responsibility or liability of a Director pursuant to any criminal statute, or (2) the liability of a Director for the payment of taxes pursuant to federal, state or local law.
The Administrator of SOCA shall not be personally liable to SOCA or any of its members for monetary damages for any action taken, or failure to take any action unless the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. The provisions of this Section shall not, however, apply to (1) the responsibility or liability of the Administrator pursuant to any criminal statute, or (2) the liability of the Administrator for the payment of taxes pursuant to federal, state or local law.

Section 2 Mandatory Indemnification of Directors, Officers, and the Administrator:
SOCA shall indemnify, to the fullest extent now or hereafter permitted by law, including but not limited to the indemnification provided by 15 Pa.C.S. ß 5746, each Director or Officer (including each former Director or Officer) of SOCA who was or is made a party to or a witness in or is threatened to be made a party to or a witness in any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether or not brought by or in the right of SOCA, by reason of the fact that he or she is or was an authorized representative of SOCA against amounts paid in settlement, all expenses (including attorneys’ fees and disbursements), judgments, fines (including excise taxes and penalties) actually and reasonably incurred by him or her in connection with such action, suit, or proceeding.
SOCA shall indemnify, to the fullest extent now or hereafter permitted by law, the Administrator (including each former Administrator) of SOCA who was or is made a party to or a witness in or is threatened to be made a party to or a witness in any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and whether or not brought by or in the right of SOCA, by reason of the fact that the Administrator is or was an authorized representative of SOCA against amounts paid in settlement, all expenses (including attorneys’ fees and disbursements), judgments, fines (including excise taxes and penalties) actually and reasonably incurred by the Administrator in connection with such action, suit, or proceeding.

Section 3 Mandatory Advancement of Expenses to Directors, Officers, and the Administrator:
SOCA shall pay expenses (including attorneys’ fees and disbursements) incurred by a Director or Officer or Administrator of SOCA referred to in this Article in defending or appearing as a witness in any civil or criminal action, suit, or proceeding described in this Article in advance of the final disposition of such action, suit, or proceeding. The expenses incurred by such Director or Officer or Administrator shall be paid by SOCA in advance of the final disposition of such action, suit, or proceeding only upon receipt of an undertaking by or on behalf of such Director or Officer or Administrator to repay all amounts advanced if it shall ultimately be determined that he or she is not entitled to be indemnified by SOCA as provided in this Article.

Section 4 Permissive Indemnification and
Advancement of Expenses:
SOCA may, as determined by the Board of Directors from time to time, indemnify to the fullest extent now or hereafter permitted by law, any person who is not a Director of SOCA but who was or is a party to or a witness in or is threatened to be made a party to or a witness in, or is otherwise involved in, any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative,or investigative by reason of the fact that he or she is or was an authorized representative of SOCA, both as to action in his or her official capacity and as to action in another capacity while holding such office or position, against amounts paid in settlement, all expenses (including attorneys’ fees and disbursements), judgments, fines (including excise taxes and penalties), actually and reasonably incurred by him or her in connection with such action, suit, or proceeding. SOCA may, as determined by the Board of Directors from time to time, pay expenses incurred by any such person by reason of his participation in an action, suit, or proceeding referred to in this Article in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by SOCA as provided in this Article.

Section 5 Scope of Indemnification:
Indemnification under this Article shall not be made by SOCA in any case where a court determines that indemnification for the alleged act or failure to act giving rise to the claim for indemnification is expressly prohibited by the Nonprofit Corporation Law. or any successor statute as in effect at the time of such alleged action or failure to take action.

Section 6 Insurance:
SOCA shall purchase and maintain insurance on behalf of each Director or Officer or their authorized representatives against any liability asserted against or incurred by reason of the status of the Director or Officer or Administrator as such, whether or not SOCA would have the power to indemnify such Director or Officer or Administrator against such liability under the provisions of this Article.

Section 7 Miscellaneous:
Each Director, Officer, or Administrator of SOCA or their authorized representatives shall be deemed to act in such capacity in reliance upon such rights of indemnification and advancement of expenses as are provided in this Article. The rights of indemnification and advancement of expenses provided by this Article shall not be deemed exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any agreement, vote of disinterested Directors, statute or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office or position, and shall continue as to a person who has ceased to be an authorized representative of SOCA and shall inure to the benefit of the heirs, executors, and administrators of such person. Indemnification and advancement of expenses under this Article shall be provided whether or not the indemnified liability arises or arose from any threatened, pending, or completed action by or in the right of SOCA. Any repeal or modification of this Article by the Board of Directors of SOCA shall not adversely affect any right or protection existing at the time of such repeal or modification to which any person may be entitled under this Article.

Section 8 Definition of Authorized Representative:
For the purposes of this Article, the term ‘’authorized representative” shall mean a Director, Officer, Administrator, employee, or agent of SOCA or of any corporation controlled by SOCA, or a trustee, custodian, administrator, committeeman, or fiduciary of any employee benefit plan established and maintained by SOCA or by any corporation controlled by SOCA, or a person serving another corporation, partnership, joint venture, trust or other enterprise in any of the foregoing capacities at the request of SOCA.
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Membership Fees

Section 1 Fees:
Each year the Board of Directors shall adopt an annual Membership Fee structure for SOCA for the succeeding fiscal year and a schedule for fee payment. The fees shall be used to pay the expenses of SOCA such as the services of the Administrator, meeting costs, insurance, and other expenses deemed appropriate or necessary by the Governing Committee. No refund of fees shall be paid to a Member in the event of early termination of its membership whether voluntarily or involuntarily.

Section 2 Fiscal Year:
The fiscal year of SOCA shall begin on the first day of January and end on the last day of December of each year.

Section 3 Disbursements:
All checks, drafts or other orders for the payment of money, notes or other evidence of indebtedness issued in the name of SOCA, shall be signed by the Treasurer and cosigned by one other Officer or the Administrator having been designated as having signature authority for the SOCA bank accounts. All checks made payable to the Administrator for services rendered or for approved expenses, however, shall be signed by the Treasurer and co-signed by one other Officer.
SOCA will maintain a bank card issued in the name of the Administrator which the Administrator may use for miscellaneous expenditures not to excee $1000.00 per occurance and which the Administrator may also use to pay for SOCA meeting expenses such as conference room and equipment rental fees, breakfast, lunch, and dinner for meeting attendees, etc.

Section 4 Rules:
The following rules shall conclusively bind SOCA and all persons acting for or on behalf of it:

A. No part of the net earnings of SOCA shall inure to the benefit of, or be distributable to its Members, Directors, Officers, or other private persons, except that SOCA shall be authorized and empowered to pay reasonable
compensation for services and other expenses rendered and to make payments and disbursements in furtherance of the purposes set forth herein.
B. Upon the dissolution of SOCA, the Board of Directors shall, after paying or making provision for the payment of
all liabilities of SOCA, dispose of all the assets of SOCA held exclusively for the purposes of SOCA in such manner,
as the Board of Directors shall determine. Full Members shall share prorata in the funds remaining after all assets are disposed of and all liabilities are paid.
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Confidential Information

To facilitate the deliberation and activities in pursuit of the Purpose and Objectives of SOCA, it may be necessary and appropriate for Siemens Westinghouse Power Corporation, Stationary Fuel Cells and the Members to share unpublished, sensitive technical, financial, market and strategic business information (Proprietary Information). Siemens Westinghouse Power Corporation, Stationary Fuel Cells and the Members furnishing the Proprietary Information will be individually and collectively referred to as the Disclosing Party and Siemens Westinghouse Power Corporation, Stationary Fuel Cells and the Members receiving the Proprietary Information will be individually and collectively referred to as the Receiving Party.
Only the information disclosed in written form and identified by a marking thereon as proprietary, or oral information which is identified as proprietary at the time of disclosure and confirmed in writing within ten days of its disclosure, shall be considered proprietary and subject to the provisions of this Article.
Proprietary Information identified and disclosed hereunder shall be used only for the stated Purpose and shall not be copied or disclosed to any third party without prior written consent of the Disclosing Party.
Siemens Westinghouse Power Corporation, Stationary Fuel Cells and the Members shall have no obligation to hold information in confidence which, although identified and disclosed as stated herein, has been or is:

a) developed by the Receiving Party independently and without the benefit of Proprietary Information disclosed hereunder by the Disclosing Party;
b) lawfully obtained by the Receiving Party from a third party without restriction;
c) publicly available without breach of this understanding;
d) disclosed without restriction by the Disclosing Party to a third party, including the United States Government; or
e) documented in written form to have been known to the Receiving Party prior to its receipt from the Disclosing Party.

Siemens Westinghouse Power Corporation, Stationary Fuel Cells and each Member shall use not less than the degree of care used to prevent disclosure of its own proprietary information to prevent disclosure of Proprietary Information received hereunder.
All Proprietary Information received and identified in accordance with this Article shall remain the property of the Disclosing Party and shall be returned upon request. Nothing contained herein transfers rights or licenses, express or implied under any technical information, invention, patent, copyright, or related application to a Receiving Party.
The Receiving Party represents and warrants that no technical information furnished to it by the Disclosing Party shall be exported from the United States without first complying with all requirements of the International Traffic in Arms Regulations and the Export Administration Act, including the requirement for obtaining any export license, if applicable. The Receiving Party shall first obtain the written consent of the Disclosing Party prior to submitting any request for authority to export any such technical information.
The Disclosing Party makes no representation regarding the accuracy, usefulness, completeness or freedom from defects of the Proprietary Information disclosed hereunder.
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Statements of Policy or Position

No statement of policy or position with respect to any matter shall be made on behalf of SOCA unless approved or authorized in advance by a majority of all Directors, or by the Governing Committee as authorized by the Board of Directors.
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Legal Counsel

The SOCA may retain legal counsel for advice and consultation with respect to activities of SOCA, the Board of Directors and all committees. It is the policy of SOCA to comply with all applicable laws and to avoid even the appearance of impropriety on the part of SOCA and its Members.
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Amendments of Bylaws

The Bylaws of SOCA may be altered, amended or repealed, or new Bylaws may be adopted, at any meeting of the Board of Directors of SOCA upon the affirmative vote of at least twothirds (2/3) of all Directors of SOCA in office at the time; provided, however, that notice of such meeting shall state that the purpose, or one of the purposes, of the meeting is to consider the adoption, amendment or repeal of the Bylaws. There shall be included in, or enclosed with the notice a copy of the proposed amendment or a summary of the changes to be effected thereby. The adoption of new or changed bylaws shall further require a reading of the proposed amendment or a summary of the changes effected thereby at a general or special meeting of the Board of Directors, and adoption at a subsequent general or special meeting to be held no sooner than 30 days following the first reading, but no later than the next general meeting.
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