EXHIBIT 10.17
FORM 10-K
YEAR ENDED DECEMBER 31, 2002
ACTION BY UNANIMOUS WRITTEN CONSENT
OF THE BOARD OF DIRECTORS OF
BUCYRUS INTERNATIONAL, INC.
The undersigned, being all the directors of Bucyrus International,
Inc., a Delaware corporation (the "Corporation") hereby adopt by this written
consent, in accordance with Section 141(f) of the General Corporation Law of
the State of Delaware, the following resolutions, with the same force and
effect as if adopted by a unanimous vote at duly convened meeting of the Board
of Directors of the Corporation:
By-law Amendment with Respect to Indemnification.
RESOLVED, that the Corporation hereby amends its By-Laws to add an
Article X to the By-Laws which shall read in its entirety as follows:
ARTICLE X
INDEMNIFICATION
Section 10.1. Indemnification and Insurance. (A) Each person who
was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or she is
the legal representative is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other corporation or of a
partnership, joint venture, trust or other enterprise, including service
with respect to any employee benefit plan (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporations Law (the "GCL")
as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including, without limitation,
attorneys' fees, judgments, fines, excise taxes or penalties under the
Employee Retirement Income Security Act of 1974, as amended, and amounts
paid or to be paid in settlement) reasonably incurred by such indemnitee
in connection therewith; provided, however, that, except as provided in
paragraph (C) of this By-law with respect to proceedings seeking to
enforce rights to indemnification, the Corporation shall indemnify any
such indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Board of Directors.
(B) The right to indemnification conferred in paragraph (A) of this
By-law shall include the right to be paid by the Corporation the
expenses (including attorneys' fees) incurred in defending any such
proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the GCL
requires, an advancement of expenses incurred by an indemnitee in his or
her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts
so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be
indemnified for such expenses under this paragraph (B) or otherwise.
(C) If a claim under paragraphs (A) or (B) of this By-law is not
paid in full by the Corporation within thirty days after a written claim
has been received by the Corporation, except in the case of a claim for
an advancement of expenses, in which case the applicable period shall be
twenty days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right of an advancement of expenses) it shall be a defense
that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met any applicable standard
for indemnification set forth in the GCL. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel
or stockholders) to have made a determination prior to the commencement
of such action that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of
conduct set forth in the GCL, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel
or stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has
not met the applicable standard of conduct or, in the case of such a
suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this By-law
or otherwise shall be on the Corporation.
(D) The right to indemnification and the advancement of expenses
conferred in this By-law shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, provision of these By-laws, agreement,
vote of stockholders or disinterested directors or otherwise.
(E) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against
such expense, liability or loss under the GCL.
(F) The Corporation may, to the extent authorized from time to time
by the Board of Directors, grant rights to indemnification, and rights
to the advancement of expenses, to any employee or agent of the
Corporation to the fullest extent of the provisions of this By-law with
respect to the indemnification and advancement of expenses of directors
and officers of the Corporation.
(G) The rights to indemnification and to the advancement of expenses
conferred in paragraphs (A) and (B) of this By-law shall be contract
rights and such rights shall continue as to an indemnitee who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
Increase of Shares of Common Stock Reserved for Issuance upon the Exercise of
Options.
RESOLVED, that the Corporation hereby increases the number of
shares of its Common Stock reserved for issuance upon the exercise of
options to purchase Common Stock of the Corporation from 150,400 to
200,000 effective as of the date hereof.
Increase in the Number of Authorized Shares.
FURTHER RESOLVED, that the Company's Restated Certificate of
Incorporation shall be amended by striking out the existing Section (1) of
Article FOURTH in its entirety, and substituting in lieu thereof the
following:
FOURTH: (1) The total number of shares of stock which
the Corporation shall have authority to issue is One Million Seven
Hundred Thousand (1,700,000) shares of Common Stock, par value
$0.01 per share.
FURTHER RESOLVED, that the proper officers of the Company be, and
each of them hereby is, authorized and directed, in the name and on behalf of
the Company, to execute and file a Certificate of Amendment of Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware and to take any and all other actions deemed necessary or appropriate
to effect this resolution; and
FURTHER RESOLVED, that the officers and the Company be, and they
hereby are, authorized and directed to take or cause to be taken all such
further actions, to execute and deliver or cause to be executed and delivered
all such further instruments and documents in the name and on behalf of the
Company and to incur all such fees and expenses as in their judgment shall be
necessary or advisable in order to carry out fully the intent and purposes of
the foregoing resolutions and each of them; and
FURTHER RESOLVED, that all actions heretofore taken by any officer
of the Company in connection with the transactions contemplated by the
foregoing resolutions be, and they hereby are, approved, ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the undersigned have executed this Action by
Written Consent as of the 16th day of December, 1998.
/s/W. Richard Bingham
W. Richard Bingham
/s/W. R. Hildebrand
Willard R. Hildebrand
/s/Kim A. Marvin
Kim A. Marvin
/s/Robert L. Purdum
Robert L. Purdum
/s/T. C. Rogers
Theodore C. Rogers
/s/Lawrence W. Ward Jr.
Lawrence W. Ward, Jr.
/s/Stephen R. Light
Stephen R. Light