Exhibit 3.2
BY-LAWS
of
HECLA MINING COMPANY
(a Delaware corporation)
(Adopted June 3, 1983, Amended August 9, 1985; Amended May 9, 1986; Amended
May 8, 1987; Amended November 4, 1988; Amended November 9, 1990 Amended November
13, 1998; Amended May 7, 2004; Amended February 25, 2005)
ARTICLE I.
Offices
Section 1. Registered Office. The registered office of the Corporation
shall be established and maintained at the office of the United States
Corporation Company, in the City of Dover, in the County of Kent, in the State
of Delaware, and said corporation shall be the registered agent of the
Corporation in charge thereof.
Section 2. Other Offices. The Corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
ARTICLE II.
Meetings of Shareholders
Section 1. Annual Meetings. Annual meetings of shareholders for the
election of directors and for such other business as may be stated in the notice
of the meeting, shall be held at such place, either within or without the State
of Delaware, and at such time and date as the Board of Directors by resolution,
shall determine and as set forth in the notice of the meeting. In the event the
Board of Directors fails so to determine the time, date and place of meeting,
the annual meeting of shareholders shall be held at the principal executive
office of the Corporation at 10:00 a.m. on the first Wednesday in May. If the
date of the annual meeting shall fall upon a legal holiday, the meeting shall be
held on the next succeeding business day. The annual meeting may be adjourned by
the chairman of the meeting from time to time and place to place. At any
adjourned annual meeting the Corporation may transact any business which might
have been transacted at the original annual meeting. The Board of Directors
acting by resolution may postpone and reschedule any previously scheduled annual
meeting of shareholders upon public notice or disclosure given prior to the date
previously scheduled for such meeting of shareholders.
Section 2. Voting. Each shareholder who is entitled to vote pursuant to the
terms of the Certificate of Incorporation and these By-Laws, or who is entitled
to vote pursuant to the laws of
the State of Delaware, shall be entitled to vote in person or by proxy, but no
proxy shall be voted after three years from its date unless such proxy provides
for a longer period. All elections for directors and all other questions shall
be decided by majority vote except as otherwise provided by the Certificate of
Incorporation, these By-Laws or the laws of the State of Delaware.
A complete list of the shareholders entitled to vote at any meeting of
shareholders at which directors are to be elected, arranged in alphabetical
order, with the address of each, and the number of shares held by each, shall be
open to the examination of any shareholder, 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 shareholder who is present.
The Chief Executive Officer shall appoint three Inspectors of Election
prior to each meeting of shareholders. Upon his appointment, each such Inspector
shall take and sign an oath faithfully to execute the duties of Inspector at
such meeting with strict impartiality and to the best of his ability. Such
Inspectors shall determine the number of shares outstanding, the voting power of
each such share, the number of shares present at the meeting and whether a
quorum is present at such meeting. The Inspectors shall receive votes and
ballots and shall determine all challenges and questions as to the right to vote
and shall thereafter count and tabulate all votes and ballots and determine the
result. Such Inspectors shall do such further acts as are proper to conduct the
elections of directors and the vote on other matters with fairness to all
shareholders. The Inspectors shall make a certificate of the results of the
elections of directors and the vote on other matters. No Inspector shall be a
candidate for election as a director of the Corporation nor shall any such
candidate be appointed an Inspector.
Section 3. Quorum. Except as otherwise required by law, by the Certificate
of Incorporation or by these By-Laws, the presence, in person or by proxy, of
shareholders holding a majority of the voting power of the outstanding stock of
the Corporation shall constitute a quorum at all meetings of the shareholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the shareholders entitled to vote thereat, present in person or by proxy or the
chairman of the meeting, shall have the power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until the
requisite amount of stock entitled to vote shall be present; provided, however,
that if such adjournment is for more than thirty days, or if after such
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at such adjourned meeting. At any such adjourned meeting at which the
requisite amount of stock entitled to vote shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
noticed; but only those shareholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof unless the Board of Directors shall have fixed a new record date for
such adjournment or adjournments pursuant to Section 4 of Article V of these
By-Laws.
Section 4. Special Meetings. Special meetings of shareholders may be called
only by the Board of Directors pursuant to a resolution approved by a majority
of the entire Board of
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Directors. Special meetings of shareholders may be held at such place, either
within or without the State of Delaware, and at such time and date as shall be
stated in the notice of the meeting. The special meeting may be adjourned by the
chairman of the special meeting from time to time and place to place. At any
adjourned special meeting the Corporation may transact any business which might
have been transacted at the original special meeting. The Board of Directors
acting by resolution approved by a majority of the entire Board of Directors may
postpone and reschedule any previously scheduled special meeting of shareholders
upon public notice or disclosure given prior to the date previously scheduled
for such meeting of shareholders.
Section 5. Notice of Meetings. Written notice, stating the place, date and
time of any annual or special meeting of shareholders, and the general nature of
the business to be considered thereat, shall be given to each shareholder
entitled to vote at such meeting at his address as it appears on the records of
the Corporation, not less than ten nor more than sixty days before the date of
the meeting.
Section 6. Shareholder Action. Any action required or permitted to be taken
by the shareholders of the Corporation must be effected at a duly called annual
or special meeting of shareholders of the Corporation and may not be effected by
any consent in writing by such shareholders.
Section 7. Chairman of a Meeting. At each meeting of the shareholders the
Chairman of the Board, or if he shall be absent therefrom, the President, or if
he shall be absent therefrom, another officer of the Corporation chosen by the
Board of Directors, shall act as chairman of the meeting or preside thereat.
Section 8.
(A) Annual Meetings of Shareholders.
(1) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (a) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any shareholder of the Corporation who was a shareholder of
record at the time of giving of notice provided for in this By-Law, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the shareholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a shareholder's
notice shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not less than 90 days nor more than 120
days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such
anniversary date, notice by the shareholder to be timely must be so delivered
not earlier than the 120th day prior to such annual meeting and not later than
the close
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of business on the later of the 90th day prior to such annual meeting or the
10th day following the day on which public announcement of the date of such
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
shareholder's notice as described above. Such shareholder's notice shall set
forth (a) as to each person whom the shareholder proposes to nominate for
election or reelection as a director, all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; (c) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
of the nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the preceding year's annual
meeting, a shareholder's notice required by this By-Law shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any shareholder of the
Corporation who is a shareholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of shareholders for the purpose of
electing one or more directors, any such shareholder may nominate a person or
persons (as the case may be), for election to such position(s) as specified in
the Corporation's notice of meeting, if the shareholder's notice required by
paragraph (A)(2) of this By-Law shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the 120th day
prior to such special meeting and not later than the close of business on the
later of the 90th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
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meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a shareholder's
notice as described above.
(C) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of shareholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this By-Law. The Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this By-Law and,
if any proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provision of this By-Law, a
shareholder shall also comply with all applicable requirements of the Exchange
Act with respect to the matters set forth in this By-Law. Nothing in this By-Law
shall be deemed to affect any rights of (i) shareholders to request inclusion of
the proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (ii) the holders of any series of Preferred Stock to elect
directors under specified circumstances.
ARTICLE III.
Directors
Section 1. Number, Election and Terms. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors which,
subject to any right of the holders of any series of Preferred Stock then
outstanding to elect additional directors under specified circumstances, shall
consist of not less than five nor more than nine persons. The exact number of
directors within the minimum and maximum limitations specified in the preceding
sentence shall be fixed from time to time by the Board of Directors pursuant to
a resolution adopted by a majority of the entire Board of Directors. The
directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1984
Annual Meeting of Shareholders, the term of office of the second class to expire
at the 1985 Annual Meeting of Shareholders and the term of office of the third
class to expire at the 1986 Annual Meeting of Shareholders. At each Annual
Meeting of Shareholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding Annual Meeting of
Shareholders after their election.
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Section 2. Newly Created Directorships and Vacancies. Subject to the rights
of the holders of any series of Preferred Stock then outstanding, newly created
directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by a majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the Annual Meeting of Shareholders at
which the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
Section 3. Removal. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire Board of
Directors, may be removed from office at any time, but only for cause and only
by the affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote for the election of
directors.
Section 4. Qualifications. Directors need not be shareholders of the
Corporation. No director elected or appointed to the Board of Directors after
May 7, 2004 shall serve on the Board of Directors beyond the Annual
Shareholders' Meeting following the date the director attains the age of 70.
Section 5. Resignations. Any director, member of a committee or officer may
resign at any time. Such resignation shall be made in writing, and shall take
effect at the time specified therein, and if no time be specified, at the time
of its receipt by the President or Secretary. The acceptance of a resignation
shall not be necessary to make it effective.
Section 6. Powers. The Board of Directors shall exercise all of the powers
of the Corporation except such as are by law, or by the Certificate of
Incorporation or by these By-Laws, conferred upon or reserved to the
shareholders.
Section 7. Standing Committees.
(A) The Board of Directors may, by resolution adopted by a majority of
the Board, elect two or more of the directors to constitute an Executive
Committee. The Chief Executive Officer shall be a member of and Chairman of the
Executive Committee. The Board of Directors shall designate a Secretary who may,
but need not, be a member of the Executive Committee or of the Board of
Directors. The Executive Committee, to the extent provided in such resolution,
shall have and exercise, when the Board of Directors is not in session, the
authority of the Board of Directors in the management of the business of the
Corporation, except that it shall not have the authority to:
(i) Declare dividends;
(ii) Approve, or recommend or submit to shareholders, mergers,
consolidations, dissolution or any other transactions requiring shareholder
approval;
(iii) Adopt, amend or repeal the By-Laws;
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(iv) Elect directors to fill vacancies on the Board of Directors
or any committee thereof;
(v) Elect, appoint or discharge committees of the Board;
(vi) Authorize the issuance of additional shares;
(vii) Fix compensation of directors for serving on the Board or
any committee; or
(viii) Amend or repeal any resolution of the Board which by its
terms may not be amended or repealed.
(B) There shall be an Audit Committee of the Board of Directors
elected annually at the first meeting of the Board of Directors following the
annual meeting of shareholders. The Audit Committee shall consist of not less
than three members selected from the members of the Board of Directors, none of
whom shall be officers or employees of the Corporation or any of its
subsidiaries. The Board of Directors shall designate a Chairman of the Audit
Committee and a Secretary who may, but need not, be a member of the Audit
Committee or of the Board of Directors. The members of the Audit Committee shall
hold office until the next annual meeting of the Board of Directors, or until
their successors are elected. The Audit Committee shall meet with the
Corporation's independent auditors and review the financial statements of the
Corporation contained in the annual report, and the notes thereto, to be sent to
shareholders prior to the date such annual report is mailed to shareholders and
a draft of such auditors' proposed certificate relating to such financial
statements and notes. Each member of the Audit Committee shall be supplied a
copy of the auditors' comments and suggestions made to management and a copy of
management's reply thereto. The Audit Committee shall report to the Board of
Directors on the matters referred to in the preceding two sentences. The
Secretary of the Corporation shall advise the Corporation's auditors of the
names of the members of the Audit Committee promptly after their election and
the auditors shall have the right to appear before and be heard at any meeting
of the Audit Committee and, upon the request of the auditors, the Audit
Committee shall convene a meeting to consider any matters which the auditors
believe should be brought to the attention of the shareholders and directors of
the Corporation. The Secretary shall advise the Corporation's auditors of the
foregoing.
(C) There shall be a Corporate Governance and Directors Nominating
Committee of the Board of Directors elected annually at the first meeting of the
Board of Directors following the annual meeting of shareholders to hold office
until the next annual meeting of shareholders. The Corporate Governance and
Directors Nominating Committee shall consist of not less than three nor more
than five members, the majority of whom shall not be officers or employees of
the Corporation or any of its subsidiaries. The Board of Directors shall
designate a Chairman from among the members of the Corporate Governance and
Directors Nominating Committee and a Secretary who may, but need not, be a
member of the Corporate Governance and Directors Nominating Committee or of the
Board of Directors. The Corporate Governance and Directors Nominating Committee
shall develop general criteria for selection of directors and officers of the
Corporation. It shall aid the Board in identifying and attracting
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qualified candidates to stand for election to such positions. The Committee
shall recommend to the Board a slate of nominees to be proposed for election as
directors by the shareholders at the next annual meeting of shareholders. The
Corporate Governance and Directors Nominating Committee shall also develop and
recommend to the Board corporate governance issues and practices and monitor
corporate compliance with any corporate governance policies and practices.
(D) There shall be a Compensation Committee of the Board of Directors
elected annually at the first meeting of the Board of Directors following the
annual meeting of shareholders to hold office until the next annual meeting of
shareholders. The Compensation Committee shall consist of not less than three
members, none of whom shall be officers or employees of the Corporation or any
of its subsidiaries. The Board of Directors shall designate a Chairman from
among the members of the Compensation Committee and a Secretary who may, but
need not, be a member of the Compensation Committee or of the Board of
Directors. The Chief Executive Officer shall submit to the Compensation
Committee recommendations with respect to compensation of directors and
executive corporate officers of the rank of Vice President or higher, such
recommendations to include past salary history and such other information deemed
pertinent to consideration of executive salaries, in any event, at least once
each year and at a time not less than one month prior to the last regularly
scheduled quarterly meeting of the Board of Directors held each calendar year.
Based on the foregoing, the Compensation Committee shall also make
recommendations to the Board of Directors concerning the salaries of executive
corporate officers of the rank of Vice President or higher. The Compensation
Committee shall have such responsibilities in the administration of the
Corporation's stock option plans as may be set forth in such plans and as the
Board of Directors, pursuant to such plans, may determine.
Section 8. Other Committees. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, designate one or more
additional committees, each such committee to consist of two or more directors
of the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board
of Directors designating such committee, or in these By-Laws, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it.
Section 9. Meetings. The annual meeting of the Board of Directors shall be
held immediately after the annual meeting of the shareholders.
Regular meetings of the Board of Directors shall be held quarterly in the
months of February, May (immediately after the annual meeting of shareholders),
August and November, or at such other times as the Board of Directors may from
time to time by resolution determine.
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Special meetings of the Board of Directors may be called by the Chief
Executive Officer or by a majority of the Board of Directors whenever he or they
may deem it necessary or expedient.
Meetings of the Board of Directors, annual, regular or special, or of any
committee thereof, may be held either within or without the State of Delaware.
Except as set forth below with respect to telephonic participation in
meetings, and except for the annual meeting and regular quarterly meetings, all
meetings of the Board of Directors shall be called by at least forty-eight
hours' notice from time of dispatch, duly made by mail, telegram or telephone by
the Chief Executive Officer or Secretary to each director, which notice shall in
each case specify the time and date of such meeting, the place where such
meeting will be held and the purpose or purposes thereof; provided, however,
that attendance at the meeting shall constitute a waiver of such notice. Any or
all members of the Board of Directors may also participate in a meeting of the
Board or of any committee thereof 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 a meeting. In the case of members of the
Board of Directors participating by telephonic means, the notice for the
meeting, specifying the time and date of the meeting and the purpose or purposes
for which the meeting is to be held, shall be given at least six hours prior to
the meeting by telegram or telephone by the Chief Executive Officer or Secretary
to each such director.
Section 10. Quorum. A majority of the directors shall constitute a quorum
for the transaction of business. If at any meeting of the Board there shall be
less than a quorum present, a majority of those present may adjourn the meeting
from time to time until a quorum is obtained. The 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 unless the Certificate of Incorporation or these By-Laws
shall require the vote of a greater number.
Section 11. Compensation. The directors shall receive such fee and/or
retainer for their services as a director as may be fixed by resolution of the
Board and, in addition, by resolution of the Board, a fixed sum and expense of
attendance at each regular or special meeting of the Board, provided that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of any Standing Committee or any other committees which may be
appointed by the Board of Directors may be allowed such compensation as the
directors may determine.
Section 12. Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all members of the Board or of such committee, as
the case may be, consent in writing to such action and such written consent is
filed with the minutes of proceedings of the Board or such committee.
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ARTICLE IV.
Officers
Section 1. Officers. The officers of the Corporation shall be a Chief
Executive Officer, a President, a Treasurer and a Secretary, all of whom shall
be elected by the Board of Directors at the annual meeting of the Board of
Directors and shall hold office until the next following annual meeting of the
Board of Directors and until their successors are elected and qualified. In
addition, the Board of Directors may elect a Chairman of the Board, one or more
Vice Presidents and such Assistant Secretaries and Assistant Treasurers as they
may deem proper. None of the officers of the Corporation, other than the
Chairman of the Board of Directors, the Chief Executive Officer and the
President, need be directors. The officers shall be elected at the annual
meeting of the Board of Directors. More than two offices may be held by the same
person.
Section 2. Other Officers and Agents. The Board of Directors may appoint
such other officers and agents as it may deem advisable, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board of Directors,
if one be elected, shall preside at all meetings of the Board of Directors and
he shall have and perform such other duties as from time to time may be assigned
to him by the Board of Directors.
Section 4. Chief Executive Officer. The Board of Directors shall elect
either the President or the Chairman of the Board, if one be elected, to be the
Chief Executive Officer of the Corporation, who shall preside at all meetings of
the shareholders and the Executive Committee. He shall, subject to the direction
of the Board, exercise the powers and perform the duties usually vested in the
Chief Executive Officer of a corporation, including, without limitation, the
power to sign all certificates of stock, to execute bonds, mortgages and other
contracts on behalf of the Corporation, and to cause the seal of the Corporation
to be affixed to any instrument requiring it, such seal when so affixed to be
attested by the signature of the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer. In addition, he shall see that all orders
and resolutions of the Board are carried out in accordance with the terms of
such orders and resolutions. The Chief Executive Officer or a proxy appointed by
him shall vote as proxy and representative of the Corporation and in its name,
place and stead, and as its corporate deed and act, all the shares of the
capital stock of any other corporation which the Corporation is entitled to
vote, and shall so vote upon any and all matters, questions and resolutions that
may come before such meetings or any adjournment or adjournments thereof with
full power of substitution and revocation.
Section 5. President. The President shall have such powers and shall
perform such duties as from time to time shall be assigned to him by the Chief
Executive Officer or by the Board of Directors. In the absence of the Chairman
of the Board, if one be elected, the President shall preside at all meetings of
the Board of Directors.
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Section 6. Vice Presidents. The Vice Presidents, if any be elected, shall
have such powers and shall perform such duties as from time to time shall be
assigned to them by the Chief Executive Officer or the Board of Directors, the
Executive Committee or the President.
Section 7. Treasurer. It shall be the duty of the Treasurer to keep safely
all moneys belonging to the Corporation, and to disburse the same under the
direction of the Board of Directors. At each annual meeting of the shareholders,
or so often as the Chief Executive Officer or the Board of Directors may direct,
the Treasurer shall submit a statement of his accounts for the past year or for
the period for which such statement is requested.
Section 8. Assistant Treasurers. The Assistant Treasurers, if any be
elected, shall perform such duties in connection with the duties of the
treasurer as the Treasurer may from time to time prescribe.
Section 9. Secretary. It shall be the duty of the Secretary to keep a
record of the meetings of the Board of Directors and of the shareholders. The
Secretary shall sign all certificates of stock issued. The Secretary shall keep
a book or record, containing the names of all persons, alphabetically arranged,
who at the time are shareholders of the Corporation, and showing the number of
shares held by them respectively, and the time when they became the owners of
such shares.
Section 10. Assistant Secretaries. The Assistant Secretaries, if any be
elected, shall perform such duties in connection with the duties of the
Secretary as the Secretary may from time to time prescribe.
Section 11. Other Powers and Duties. The officers of the Corporation shall
also have such other powers and duties as may, from time to time, be conferred
upon them by the Board of Directors.
Section 12. Removal. Any officer elected, or agent appointed, by the Board
of Directors may be removed by the affirmative vote of a majority of the Whole
Board whenever, in their judgment, the best interests of the Corporation would
be served thereby. Any officer or agent appointed by the Chairman of the Board
or the President may be removed by him whenever, in his judgment, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of his successor, his death,
his resignation or his removal, whichever event shall first occur, except as
otherwise provided in an employment contract or under an employee deferred
compensation plan.
Section 13. Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation, or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Chairman of the
Board or the President because of death, resignation, or removal may be filled
by the Chairman of the Board or the President.
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ARTICLE V.
Miscellaneous
Section 1. Certificates of Stock. Certificates of stock shall be in such
form as the Board of Directors may direct. The certificates shall be signed by
the President and also by the Secretary or an Assistant Secretary with the seal
of the Corporation affixed thereto. Any or all the signatures on the certificate
may be in facsimile and the seal of the Corporation attached to said
certificates may be in facsimile. In case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have been used upon,
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates are issued by the Corporation, such certificate
or certificates may nevertheless be issued and delivered by the Corporation with
the same effect as if the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, were such officer or officers of the Corporation at the date of issue.
All certificates shall be consecutively numbered. The name of the person owning
the shares represented thereby with the number of such shares and the date of
issue shall be entered upon the Corporation's books.
Section 2. Lost Certificates. No certificate for shares of stock in the
Corporation shall be issued in place of any certificate alleged to have been
lost, stolen or destroyed, except upon production of satisfactory evidence of
such loss, theft or destruction, and upon delivery to the Corporation of a bond
of indemnity, or other security, in such an amount and upon such terms as the
Board of Directors in its discretion may require; provided, however, that the
President and the Secretary may issue or cause to be issued a new certificate in
place of a lost, stolen or destroyed certificate without approval by the Board
of Directors when such lost, stolen or destroyed certificate is supported by an
open penalty lost certificate bond, in which the owner of the lost certificate
and the surety bind themselves to indemnify and save harmless the Corporation
and its duly appointed transfer agent and registrar against any action which
might be brought if such alleged lost, stolen or destroyed certificate should be
presented for transfer by some person having or claiming title thereto; and
provided further, that in the situation where a certificate is lost in the mails
after dispatch of the certificate to the shareholder who is entitled to the same
by the transfer agent, broker or banker who intervenes in the transaction or by
the Corporation itself, a sole obligor open penalty lost certificate bond signed
by the surety alone will be acceptable.
Section 3. Transfer of Shares. The shares of stock of the Corporation shall
be transferable only upon its books by the holders thereof in person or by their
duly authorized attorneys or legal representatives, and upon such transfer, the
old certificates shall be surrendered to the Corporation by the delivery thereof
to the person in charge of the stock and transfer books and ledgers, or to such
other person as the directors may designate, by whom they shall be cancelled,
and new certificates shall thereupon be issued. A record shall be made of each
transfer and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
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Section 4. Shareholders Record Date. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, 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 less than ten nor more than sixty
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of shareholders of record entitled to notice of or
to vote at a meeting of shareholders shall apply to any adjournment or
adjournments of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 5. Dividends. Subject to the provisions of applicable law and of
the Certificate of Incorporation, the Board of Directors may, out of funds
legally available therefor at any regular or special meeting, declare dividends
upon the capital stock of the Corporation as and when they deem expedient.
Before declaring any dividend, there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for such other purposes as the directors shall deem
conducive to the interests of the Corporation.
Section 6. Seal. The corporate seal shall be determined by resolution of
the Board of Directors. Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 7. Fiscal Year. The fiscal year of the Corporation shall end with
the calendar year.
Section 8. Checks. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner, as shall be determined from time to time by
resolution of the Board of Directors.
Section 9. Notice and Waiver of Notice. Whenever any notice is required by
these By-Laws to be given, personal notice is not meant unless expressly so
stated, and any notice so required shall be deemed to be sufficient if given by
depositing the same in the United States mail, postage prepaid, addressed to the
person entitled thereto at his address as it appears on the records of the
Corporation and such notice shall be deemed to have been given on the day of
such mailing. Shareholders not entitled to vote shall not be entitled to receive
notice of any meetings except as otherwise provided by law or the Certificate of
Incorporation.
Whenever any notice whatever is required to be given under the provisions
of any law, or under the provisions of the Certificate of Incorporation of the
Corporation or these By-Laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
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ARTICLE VI.
Amendments
These By-laws may be altered or repealed and By-Laws may be made at any
annual meeting of the shareholders or at any special meeting thereof if notice
of the proposed alteration or repeal of By-Laws to be made be contained in the
notice of such meeting, by the affirmative vote of the holders of a majority of
the total voting power of all outstanding shares of the voting stock of the
Corporation. These By-Laws may also be altered or repealed and By-Laws may be
made by the affirmative vote of a majority of the Board of Directors, at any
annual or regular meeting of the Board of Directors, or at any special meeting
of the Board of Directors if notice of the proposed alteration or repeal, or
By-Law or By-Laws to be made, be contained in the notice of such special
meeting.
Notwithstanding anything contained in these By-Laws to the contrary, the
affirmative vote of the holders of at least 80% of the voting power of all of
the shares of the capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required
to alter, amend or repeal Section 4 or 6 of Article II, or Section 1, 2 or 3 of
Article III, of these By-Laws.
ARTICLE VII.
Limitation of Liability and Indemnification
Section 1. Limitation of Liability. A director of the Corporation shall not
be personally liable to the Corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its shareholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is amended after approval by the shareholders of this article to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended. This paragraph shall not eliminate or
limit the liability of a director for any act or omission which occurred prior
to the effective date of its adoption. Any repeal or modification of this
paragraph by the shareholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
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Section 2. Indemnification and Insurance.
(A) Right to Indemnification of Directors, Officers and Employees.
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 is or was a director, officer or employee of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer or
employee or in any other capacity while serving as a director, officer or
employee, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, 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 permitted prior thereto), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer or
employee and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in paragraph (b)
hereof with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee 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 of the Corporation. The right
to indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law 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
Section or otherwise.
(B) Right of Indemnitee to Bring Suit. If a claim under paragraph (a)
of this Section is not paid in full by the Corporation within sixty 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, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, 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
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indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit 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 the applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its shareholders) 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 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 Section or otherwise shall be on the
Corporation.
(C) Non-Exclusivity of Rights. The rights to indemnification and to
the advancement of expenses conferred in this Section shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, this Certificate of Incorporation, By-Law, agreement, vote of
shareholders or disinterested directors or otherwise. The Corporation is
authorized to enter into contracts of indemnification.
(D) Insurance. 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 Delaware General Corporation Law.
(E) Indemnification of Agents of the Corporation. The Corporation may,
to the extent authorized from time to time by the board of directors, grant
rights to indemnification, and to the advancement of expenses, to any agent of
the Corporation to the fullest extent of the provisions of this Section with
respect to the indemnification and advancement of expenses of directors,
officers and employees of the Corporation.
(F) If any provision or provisions of this By-Law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (i) the validity,
legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this By-Law (including, without limitation, each such portion of
any paragraph of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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ARTICLE VIII.
Possession of By-Laws
These By-Laws shall remain in the possession of the Secretary of the
Corporation.
----------------------------------
Michael B. White
Corporate Secretary
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