Exhibit A.1
HOMESTAKE MINING COMPANY
(A DELAWARE CORPORATION)
BYLAWS
As amended through April 27, 2001
ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. The annual meeting of the Company shall be held on such day and at
such time as the Board of Directors shall determine, for the election of
Directors and the transaction of such other business as properly come before
such meeting.
SECTION 2. Special meetings of the stockholders may be called at any time by
the Chairman of the Board, by the President, by the Board of Directors of the
Company, by a committee of the Board of Directors which has been duly designated
by the Board of Directors and whose powers and authority, as provided in a
resolution of the Board of Directors or in the Bylaws of the Company include the
power to call such meetings, or by stockholders having not less than seventy-
five percent (75%) of the total voting power of all outstanding shares of stock
of the Company, but such special meetings may not be called by any other person
or persons; provided, however, that if and to the extent that any special
meeting of stockholders may be called by any other person or persons specified
in any provisions of the Restated Certificate of Incorporation or any amendment
thereto, or any certificate filed under Section 151(g) of the General
Corporation Law of Delaware (or its successor statute as in effect from time to
time hereafter), then such special meeting may also be called by the person or
persons in the manner, at the times and for the purposes so specified.
SECTION 3. All notices of meetings of stockholders shall be sent or otherwise
given in accordance with Section 4 of this Article I not less than ten (10) nor
more than sixty (60) days before the date of the meeting. The notice shall
specify the place, date and hour of the meeting and (1) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (2) in the case of the annual meeting, those
matters which the Board of Directors, at the time of giving the notice, intends
to present for action by the stockholders, and (3) in the case of any meeting at
which directors are to be elected, the names of the nominees intended at the
time of the mailing of the notice to be presented by management for election.
SECTION 4. Notice of any meeting of stockholders shall be given either
personally or by mail or other written communication, charges prepaid, addressed
to the stockholder at the address of the stockholder appearing on the books of
the Company, or given by the stockholder to the Company for the purpose of
notice. If no such address appears on the Company's books or is given, notice
shall be deemed to have been given if sent to that stockholder by mail or other
written communication to the Company's principal executive office, or, if
published at least once
in a newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by telegram or other means of
written communication.
If any notice addressed to a stockholder at the address of that stockholder
appearing on the books of the Company is returned to the Company by the United
States Postal Service marked to indicate that the United States Postal Service
is unable to deliver the notice to the stockholder at that address, all future
notices or reports shall be deemed to have been duly given without further
mailing if these shall be available to the stockholder on written demand of the
stockholder at the principal executive office of the Company for a period of one
year from the date of the giving of the notice. An affidavit of the mailing or
other means of giving any notice of any stockholders' meeting may be executed by
the Secretary, any Assistant Secretary, or any transfer agent of the Company
giving the notice, and if executed shall be filed and maintained in the minute
book of the Company.
SECTION 5. Every annual meeting and every special meeting of the stockholders
shall be held at such place within or without the State of Delaware as may be
designated as the place for holding such meeting by the Board of Directors. In
the absence of any such designation, stockholders' meetings shall be held at the
principal executive office of the Company.
SECTION 6. Except as otherwise provided by statute of by the Restated
Certificate of Incorporation, the presence in person or by proxy of the holders
of a majority in voting power of the shares of capital stock of the Company at
the time issued and outstanding and entitled to vote at any meeting shall
constitute a quorum for the transaction of business. The stockholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment notwithstanding the withdrawal of enough stockholders
to leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority in voting power of the shares required to
constitute a quorum. If such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power to adjourn the meeting
from time to time until a quorum shall by present or represented. At any
adjourned meeting at which a quorum shall be present or represented any business
which might have been transacted at the meeting which was adjourned may be
transacted and with the same effect. If after the adjournment a new record date
is fixed for the adjourned meeting or if the adjournment is for more than thirty
(30) days, notice of the adjourned meeting shall be given as in the case of an
original meeting, but otherwise no further notice of the time and place of the
adjourned meeting need be given other than by announcement at the meeting at
which such adjournment is taken.
SECTION 7. Except as otherwise provided by statute or by the Restated
Certificate of Incorporation, every stockholder of record shall be entitled at
any meeting of stockholders to one vote on each matter submitted to a vote of
the stockholders for every share of stock standing in the name of such person on
the books of the Company and qualified to vote. The stockholders'
2
vote shall be by written ballot unless the requirement therefor is dispensed
with by the Board of Directors. On any matter other than elections of directors,
any stockholder may vote part of the shares in favor of the proposal and refrain
from voting the remaining shares or vote them against the proposal, but, if the
stockholder fails to specify the number of shares which the stockholder is
voting affirmatively, it will be conclusively presumed that the stockholder's
approving vote is with respect to all shares that the stockholder is entitled to
vote. All matters (other than the election of directors) shall, unless otherwise
provided by the Restated Certificate of Incorporation, these By-laws, or the
rules and regulations of any stock exchange applicable to the Company or its
securities, be decided by the affirmative vote of the holders of a majority in
voting power of the shares of stock of the Company which are present in person
or by proxy and entitled to vote thereon.
SECTION 8. In the event the Board of Directors fixes a day for the
determination of stockholders of record entitled to vote as provided in Section
1 of Article XIV of these Bylaws, then only persons in whose names shares
entitled to vote stand on the stock records of the Company on such day shall be
entitled to vote.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the business day next preceding the day notice is given or,
if notice is waived, at the close of business on the business day next preceding
the day on which the meeting is held.
If no record date is fixed, the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting unless
the Board of Directors fixes a new record date for the adjourned meeting, but
the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 9. At all meetings of the stockholders, stockholders may vote either
in person or by one or more agents authorized by a proxy. A proxy which does
not state that it is irrevocable shall continue in full force and effect unless
(1) revoked before the vote pursuant to that proxy, by a revocation delivered to
the Company stating that the proxy is revoked, or by the granting of a
subsequent proxy by, or attendance at the meeting and voting by, the person
granting the proxy, or (2) written notice of the death or incapacity of the
maker of that proxy is received by the Company before the vote pursuant to that
proxy is counted; provided, however, that no proxy shall be valid after the
expiration of three (3) years from the date of the proxy, unless otherwise
provided in the proxy. The revocability of a proxy that states on its face that
it is irrevocable shall be governed by the provisions of Section 212(e) of the
General Corporation Law of Delaware (or its successor statute as in effect from
time to time hereafter).
3
SECTION 10. The transaction of business at any meeting of stockholders,
however called and noticed, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum be present
either in person or by proxy, and if, either before or after a meeting, each
person entitled to vote, who was not present in person or by proxy, signs a
written waiver of notice or a consent to a holding of the meeting, or an
approval of minutes of the meeting. The waiver of notice or consent need not
specify either the business to be transacted or the purpose of any annual or
special meeting of stockholders. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Attendance by a person at a meeting shall also constitute a waiver of notice
of that meeting, except when the person objects at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened, and except that attendance at a meeting is not a waiver of any right
to object to the consideration of matters required by law to be included in the
notice of meeting but not so included if that objection is expressly made at the
meeting.
SECTION 11. No action shall be taken by the stockholders except at an annual
or special meeting of the stockholders.
SECTION 12. At any annual meeting of stockholders, only such business shall
be conducted as shall have been brought before the annual meeting (1) by or at
the direction of the chairman of the meeting or (2) by any stockholder who is a
holder of record at the time of the giving of the notice provided for in this
Section 12, who is entitled to vote at the meeting, and who complies with the
procedures set forth in this Section 12.
For business properly to be brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in proper written form to
the Secretary. To be timely, a stockholder's notice must be received at the
principal executive offices of the Company not less than 75 days nor more than
180 days prior to the anniversary date of the immediately preceding annual
meeting; provided, however, that in the event that the date of the annual
-----------------
meeting is more than 30 days earlier or more than 30 days later than such
anniversary date, notice by the stockholder to be timely must be so received not
earlier than the 180th day prior to such annual meeting and not later than the
close of business on the later of the 75th 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. To be in proper written form, a stockholder's notice to
the Secretary shall set forth in writing as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting; and (ii) the name and address,
as they appear on the Company's books, of the stockholder proposing such
business. The foregoing notice requirements shall also be deemed satisfied by a
stockholder if the
4
stockholder has notified the Company of his or her intention to present a
proposal at an annual meeting and such stockholder's proposal has been included
in a proxy statement that has been prepared by management of the Company to
solicit proxies for such annual meeting; provided, however, that if such
-----------------
stockholder does not appear or send a qualified representative to present such
proposal at such annual meeting, the Company need not present such proposal for
a vote at such meeting, notwithstanding that proxies in respect of such vote may
have been received by the Company.
ARTICLE II
DIRECTORS
SECTION 1. Subject to the limitations prescribed by statute or by the
Restated Certificate of Incorporation or these Bylaws as to action to be
authorized or approved by the stockholders, all the powers, rights and
privileges of the Company shall be exercised by or under the direction of, and
the business and affairs of the Company shall be managed under the direction of,
its Board of Directors. Directors shall be elected by the stockholders of the
Company, and at each election the persons receiving the greatest number of
votes, up to the number of directors then to be elected, shall be the persons
then elected. The election of directors is subject to any provisions in the
Restated Certificate of Incorporation relating thereto, including any provisions
for a classified Board.
SECTION 2. Except as otherwise provided by statute or by the Restated
Certificate of Incorporation, any vacancy in the Board of Directors may be
filled by a majority of the remaining directors, though less than a quorum, or
by a sole remaining director, and each director so elected shall hold office
until his successor is elected and qualified.
SECTION 3. All meetings of the Board of Directors shall be held at the
principal office of the Company or at any other place within or without the
State of Delaware as the Board of Directors may from time to time fix therefor.
Any meeting of the Board of Directors, regular or special, may be held by
conference telephone or similar communication equipment, so long as all
directors participating in the meeting can hear one another, and all such
directors shall be deemed to be present in person at the meeting.
SECTION 4. A regular meeting of the Board of Directors shall be held, if a
quorum be present, in each and every year immediately after the adjournment of
the annual meeting of stockholders for the purpose of electing officers and
transacting such other business as might be transacted at any regular meeting of
the Board. Regular meetings of the Board of Directors, of which no notice shall
be required to be given, shall be held in every odd-numbered month in accordance
with a schedule established by the Board of Directors from time to time, except
that the scheduled date of any meeting may be changed by the Chairman of the
Board or the President, in the discretion of either, provided that notice of
such change shall be given to all directors personally or by mail, telegram,
telecopy or other means of electronic communication
5
or telephone at least one (1) week prior to such scheduled date and at least
four (4) days prior to the date upon which such meeting is to be held.
SECTION 5. Special meetings of the Board of Directors shall be called by the
Secretary at the direction of the Chairman of the Board, the President, or a
majority of the directors. Notice of the time and place of any special meeting
of the Board of Directors shall be given by serving the same personally or by
telegram, telecopy or other means of electronic communication or telephone at
least two (2) hours before such meeting. Each member of the Board of Directors
shall, by writing filed with the Secretary, designate his post office address,
telecopier number, electronic mail address, telephone number or other relevant
delivery information to which notices of meetings of the Board of Directors of
this Company shall be directed, and in the event of any change therein shall
promptly inform the Company thereof.
SECTION 6. At all meetings of the Board of Directors a majority of the
directors shall be necessary and sufficient to constitute a quorum for the
transaction of business, and every act and decision done or made by a majority
of the directors present at a regular meeting or a duly called special meeting
held at which a quorum is present shall be the act of the Board of Directors,
unless a greater number is required by statute or by the Restated Certificate of
Incorporation. In the absence of a quorum, a majority of the directors present
at any meeting may adjourn the meeting from time to time until and not past the
time fixed for the next regular meeting of the Board of Directors. Notice of
the time and place of holding an adjourned meeting need not be given to
directors absent from the meeting which was adjourned if the time and place of
the adjourned meeting are fixed at the meeting which was adjourned.
SECTION 7. By resolution of the Board of Directors, a fixed sum may be
allowed each director attending a meeting of the Board of Directors. Members of
the Executive Committee or other committees may likewise be allowed fixed sums
as determined by the Board of Directors. All directors shall be reimbursed for
any reasonable expenses which they incur as such for attendance at meetings of
the Board of Directors or committees or otherwise. Directors who are not also
officers or employees of the Company may receive such compensation for their
services as directors as may be fixed or determined by the Board of Directors.
Except as provided herein, no director shall be compensated for his services as
a director, but any director may serve the Company in any other capacity and
receive compensation therefor.
SECTION 8. The transaction of business at any meeting of the Board of
Directors, however called and noticed, and wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a quorum be
present and if, either before or after the meeting, each of the directors not
present signs a written waiver of notice and consent to holding the meeting or
an approval of the minutes thereof, which waiver, consent, or approval shall be
filed with the corporate records or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any director who attends the
meeting without protesting before or at its commencement, the lack of notice to
that director. Any action required or permitted to be
6
taken by the Board of Directors may be taken without a meeting, if all members
of the Board shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Directors.
SECTION 9. The authorized number of Directors is hereby set at eight until
such number is changed by a Bylaw or amendment thereof duly adopted by the
stockholders in accordance with the Restated Certificate of Incorporation or by
the Board of Directors amending this Section Nine. The Board of Directors shall
be divided into three classes of directors elected for terms of three years
each. Until changed, Class I shall consist of two directors, Class II shall
consist of three directors, and Class III shall consist of three directors.
SECTION 10. The Board of Directors may from time to time designate from one
to three former directors of this Company as Consultants to the Board of
Directors. The term of office of each such Consultant to the Board of Directors
shall terminate immediately after the adjournment of each annual meeting of
stockholders of the Company, or at such other time as may be determined by the
Board of Directors. A Consultant to the Board of Directors may attend meetings
of the Board of Directors with the privilege of participating in all
discussions, but without the right to vote, and shall be eligible for
appointment as Consultant to committees of the Board of Directors, but with no
right to vote. Consultants shall not be included in determining the presence of
a quorum. Other rights, privileges and duties of Consultants to the Board of
Directors and any compensation to be paid to Consultants to the Board of
Directors may be provided from time to time by resolution of the Board of
Directors.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. The Board of Directors may, by resolution or resolutions passed by
a majority of the directors, appoint from their number an Executive Committee of
one or more directors, who shall make recommendations to the Board. The
Executive Committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board
of Directors including, without limitation, the power and authority to declare a
dividend, to authorize the issuance of stock and to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law of
Delaware (or its successor statute as in effect from time to time hereafter);
but shall not have the power or authority to: (a) amend the Restated Certificate
of Incorporation (except that a committee may, to the extent authorized in
resolutions providing for the issuance of stock adopted by the Board of
Directors as provided in Section 151(a) of the General Corporation Law of
Delaware (or its successor statute as in effect from time to time hereafter),
fix any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, distribution of assets of the Company, or the
conversion into or the exchange of such shares for shares of any other class or
classes or any other series of the same of any other class or classes of stock
of the Company), (b) adopt an agreement of merger or consolidation under Section
251 or 252 of the General Corporation Law
7
of Delaware (or its successor statute as in effect from time to time hereafter),
(c) recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Company's property and assets, (d) recommend to the
stockholders a dissolution of the Company or a revocation of a dissolution, or
(e) amend the Bylaws of the Company. The Board of Directors shall elect a
Chairman of the Executive Committee, and in his absence the Chairman of the
Board shall act as Chairman of the Executive Committee, ex officio, in his
place, and in the absence of the Chairman of the Executive Committee and the
Chairman of the Board, the President of the Company shall act as Chairman of the
Executive Committee, ex officio, in their places.
SECTION 2. A majority of the Executive Committee shall constitute a quorum
for the transaction of business at any meeting thereof duly called and held.
The Board of Directors shall have the power to provide by resolution for regular
meetings of the Executive Committee and to specify the time and place of holding
such regular meetings. Special meetings of the Executive Committee may be
called at any time by the Chairman of the Board, the President, or by a majority
of the members of the Executive Committee and notice of all such special
meetings shall be given in the manner provided in Section 5 of Article II.
Meetings of the Executive Committee may be held at the principal office of the
Company, or, if authorized by resolution of the Board of Directors, such
meetings may, by unanimous consent of the members of the committee, be held at
any other place. The Board of Directors shall have the power to prescribe rules
for the government of the Executive Committee not inconsistent with the
provision of these Bylaws. In the absence of any such prescription by the Board
of Directors of by the Bylaws, the regular and special meetings and other
actions of the Executive Committee shall be governed by the provisions of
Article II applicable to meetings and actions of the Board, with such changes in
the context of these Bylaws as are necessary to substitute the Executive
Committee and its members for the Board of Directors and its members.
SECTION 3. The Board of Directors may, by resolution or resolutions passed by
a majority of the directors, appoint from their number such other committees
consisting of one or more directors as the Board of Directors may deem
advisable. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent member at the meeting of the
committee. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have all the authority of the Board of Directors,
except with respect to the matters set forth in (a) through (e) of Section 1 of
this Article III and shall be governed in accordance with Section 2 of this
Article III.
SECTION 4. The Executive and other committees shall keep records of their
proceedings and report the same to the Board of Directors whenever so required.
ARTICLE IV
OFFICERS
8
SECTION 1. The officers of this Company shall be a Chairman of the Board, a
President, a Vice President, a Secretary, a Treasurer and a Controller, who
shall be elected by and hold office at the pleasure of the Board of Directors.
The Board of Directors may also elect such additional officers, if any, as it
shall deem expedient, including, without limitation, one or more Executive Vice
Presidents, one or more Senior Vice Presidents, one or more Vice Presidents and
one or more assistant officers. Only members of the Board of Directors shall be
eligible for the office of the Chairman of the Board and the office of
President, but no other officer need be a member of the Board of Directors. Any
two or more offices may be held by the same person. The compensation of
officers shall be fixed and determined by the Board of Directors from time to
time.
SECTION 2. The Board of Directors, at its first meeting after each annual
meeting of stockholders, shall elect a Chairman of the Board, a President, a
Vice President, a Secretary, a Treasurer and a Controller and at such time or
from time to time may elect or appoint such other officers and agents as it
shall deem expedient.
SECTION 3. Except as otherwise provided by law, or in these Bylaws, or by
resolutions of the Board of Directors, each of such officers shall serve until
the date appointed by these Bylaws for the next annual meeting of stockholders
and until his successor is elected or appointed and shall have qualified. If
the office of any officer becomes vacant for any reason, the vacancy may be
filled by the Board of Directors.
SECTION 4. The Board of Directors, in its discretion, may require any
officer, agent or employee of the Company to give security for the faithful
performance of his duties in such form and amount and with or without one or
more of such sureties as the Board of Directors may determine.
SECTION 5. Nothing in this Article IV or elsewhere in these Bylaws shall
prevent the Board of Directors from authorizing, or the Company from executing,
a contract for the employment of a person as an officer of the Company for a
period of more than one year.
ARTICLE V
CHAIRMAN OF THE BOARD AND PRESIDENT
SECTION 1. The Chairman of the Board shall, if present, preside at all
meetings of the stockholders and of the Board of Directors, and shall have such
other powers and duties as shall be prescribed by the Board of Directors or by
law. He shall be a member ex officio of all committees, except the Audit,
Compensation and Nominating Committees.
SECTION 2. The President shall, if present and in the absence of the Chairman
of the Board, preside at all meetings of the stockholders and of the Board of
Directors, and shall have such other powers and duties as shall be prescribed by
the Board of Directors or by law. He shall
9
be a member ex officio of all committees, except the Audit, Compensation and
Nominating Committees.
ARTICLE VI
POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER
AND HEAD OF THE COMPANY
Either the Chairman of the Board or the President, as may be determined from
time to time by the Board of Directors, shall have the powers and duties of the
Chief Executive Officer and head of the Company. Such powers and duties shall
include the general control and management of the business and affairs of the
Company; the responsibility for seeing that all orders and resolutions of the
Board of Directors are carried into effect; the exclusive authority to execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
Company, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
Company; and membership ex officio in all committees, except the Audit,
Compensation and Nominating Committees.
ARTICLE VII
EXECUTIVE VICE PRESIDENTS AND VICE PRESIDENTS
SECTION 1. Executive Vice Presidents, if any shall have been elected and be
in office, shall have and may exercise the powers and duties of the President in
the absence or inability of the latter and such other powers and duties as may
be assigned to them by the Board of Directors.
SECTION 2. The Vice President or Vice Presidents (including any Senior Vice
Presidents) shall have and exercise the powers and duties of the Executive Vice
President in the absence or inability of the President and the Executive Vice
Presidents and such other powers and duties as may be assigned to them
respectively by the Board of Directors.
SECTION 3. The Vice President, Finance shall be the Chief Financial Officer
of the Company.
ARTICLE VIII
SECRETARY AND ASSISTANT SECRETARIES
10
SECTION 1. The Secretary shall have custody of the seal of the Company, and
when authorized by the Board of Directors, he shall affix the same to any
instrument requiring it, and when so affixed it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary. He
shall attend all meetings of the stockholders and of the Board of Directors and
keep the minutes of all proceedings in a book or books to be kept for that
purpose at the principal office of the Company or at such other place as the
Board of Directors may from time to time determine, and he shall perform like
duties for the Executive and other committees when required. He shall attend to
the giving and serving of all notices of the Company, and he shall perform such
other duties as may be incidental to his office or as may be assigned to him by
the Board of Directors, the Chairman of the Board, the President, or the officer
under whose supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Secretaries, if any shall
have been elected and be in office, to aid the Secretary in the discharge of his
duties and to perform such other duties as may be assigned to them by the Board
of Directors, the Chairman of the Board, the President, the Vice President,
Finance, or the Secretary.
ARTICLE IX
TREASURER AND ASSISTANT TREASURER
SECTION 1. The Treasurer shall have the care and custody of the funds and
securities of the Company, except as otherwise determined by the Board of
Directors, and shall deposit all such funds and securities of the Company in the
name and to the credit of the Company in such depositories and places and
subject to withdrawal in such manner as these Bylaws or the Board of Directors
may determine. Within established lines of authority, he shall be responsible
for the administration of the Company's securities portfolio, pension plans,
insurance and employee benefit programs, the keeping of the stock certificate
book and such other books and records as the Board of Directors may direct. He
shall also have charge of a stock book containing the names of the stockholders
and their addresses, the number of shares of stock held by them respectively,
the name and date of the certificates issued for the same, and the number and
date of cancellation of every certificate surrendered for cancellation, and
shall have such other powers and perform such other duties as may be conferred
upon or assigned to him by the Board of Directors, the Chairman of the Board,
the President, the Vice President, Finance, or the officer under whose
supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Treasurer, if one shall have
been elected and be in office, to aid the Treasurer in the discharge of his
duties and perform such other duties as may be assigned to him by the Board of
Directors, the Chairman of the Board, the President, the Vice President,
Finance, or the Treasurer.
ARTICLE X
CONTROLLER AND ASSISTANT CONTROLLER
11
SECTION 1. The Controller shall keep or cause to be kept adequate and correct
accounts of the corporate properties and business transactions in books
belonging to the Company, and he shall disburse the funds of the Company as
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
whenever they may require it, an account of all of his transactions and the
financial condition of the Company. He shall be responsible for the
administration of programs providing for financial management and budgetary
controls of the Company, development of accounting policies and procedures, and
use of data processing equipment and the preparation, review and filing of all
tax and other financial reports and returns, and he shall have such other powers
and perform such other duties as may be conferred upon or assigned to him by the
Board of Directors, the Chairman of the Board, the President, the Vice
President, Finance, or the officer under whose direct supervision he shall be.
SECTION 2. It shall be the duty of the Assistant Controller, if one shall
have been elected and be in office, to aid the Controller in the discharge of
his duties and to perform such other duties as may be assigned to him by the
Board of Directors, the Chairman of the Board, the President, the Vice
President, Finance, or the Controller.
SECTION 3. The Controller shall be the Chief Accounting Officer of the
Company.
ARTICLE XI
GENERAL MANAGER
SECTION 1. The Board of Directors may appoint a General Manager who shall not
be an officer of the Company unless the Board shall otherwise determine.
SECTION 2. Subject to the supervision and direction of the Chairman of the
Board or the President, and in accordance with the policies determined by the
Board of Directors, the General Manager shall have power and authority to do and
transact and supervise and direct such of the usual and ordinary business of the
Company as may be designated by the Chairman of the Board or the President.
SECTION 3. The Board of Directors may also appoint an Assistant General
Manager to aid the General Manager in the performance of his duties and to
perform such other duties as may be required of him by the Chairman of the Board
or the President.
SECTION 4. The Chairman of the Board or the President may, with the approval
of the Board of Directors, appoint managers or superintendents for specific
operations that are not related to or included in those assigned to the General
Manager, with duties and responsibilities as may be designated by the Chairman
of the Board or the President.
12
ARTICLE XII
REMOVALS, RESIGNATIONS AND VACANCIES OF DIRECTORS AND OFFICERS
SECTION 1. No member of the Board of Directors may be removed without cause
and except in compliance with the Company's Restated Certificate of
Incorporation.
SECTION 2. Any director or officer may resign his office at any time, such
resignation to be made in writing and to take effect from the time of its
receipt by the Company, unless a different time be fixed in the resignation, and
in that event, from the time so fixed. The acceptance of a resignation shall
not be required to make it effective.
SECTION 3. Any officer elected or appointed by the Board of Directors may be
removed at any time with or without cause by the Board of Directors. Any other
officer or employee of the Company may be removed at any time with or without
cause by the Board of Directors or by any committee or superior officer upon
whom such power of removal may be conferred by the Bylaws or by the Board of
Directors.
SECTION 4. If the office of any director becomes vacant for any cause, such
vacancy may be filled for the unexpired portion of the term, if any, by a
majority of the remaining directors, though less than a quorum, or by a sole
remaining director.
ARTICLE XIII
CERTIFICATES OF STOCK
SECTION 1. Form of Certificate. Certificates for shares of stock of the
Company shall be in such form and of such design as the Board of Directors shall
prescribe and each certificate for shares issued by the Company shall be signed
by the Chairman of the Board, or the President or any Executive Vice President
or Vice President and the Secretary or an Assistant Secretary. Any or all of
the signatures on the certificate may be facsimile. If any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Company
with the same effect as if such person were an officer, transfer agent or
registrar at the date of issue. The certificates for shares shall be numbered
and registered as they are issued. They shall exhibit the number, date of
issuance, name of person to whom issued, designation, if any, the class or
series of shares represented thereby, the par value of the shares or a statement
that such shares are without par value.
SECTION 2. Transfer of Shares. Upon surrender to the Secretary or Transfer
Agent of the Company of a certificate for shares, duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto and the old
certificate canceled and the transaction recorded upon the books of the Company.
13
SECTION 3. Lost Certificates. The Chairman of the Board or the President and
the Secretary or the Assistant Secretary may in their discretion direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost or
destroyed upon the production by the person claiming the certificate for shares
to be lost or destroyed of satisfactory evidence of the loss or destruction of
such certificate or certificates and of the claimant's ownership of the shares
of stock represented thereby, together with a bond in favor of the Company, with
a surety satisfactory to said officers, in the amount of the then current market
value of the stock represented by such allegedly lost certificate or
certificates, conditioned upon such claimant and surety indemnifying and saving
harmless the Company from all and every cost, charge, expense and liability
which it may in any manner incur by reason of the issuance of such new
certificate or certificates, and further conditioned upon their surrendering to
the Company for cancellation such allegedly lost certificate or certificates in
the event of their subsequent discovery; or the Chairman of the Board or
President or Secretary may refer any such application for the issuance of a new
certificate or certificates to the Board of Directors which shall have the power
to direct the issuance of a new certificate or certificates upon submission of
such proof and upon such guarantee on the part of the applicant as the Board of
Directors may deem satisfactory.
ARTICLE XIV
GENERAL PROVISIONS
SECTION 1. Fixing of Record Date or Closing of Transfer Books. The Board of
Directors may fix a time in the future as a record date for the determination of
the stockholders entitled to notice of and to vote at any meeting or entitled to
receive any dividend or distribution or any allotment of rights or to exercise
any rights in respect of any other lawful action. The record date so fixed
shall not be more than sixty (60) nor less than ten (10) days prior to the date
of such meeting and no more than sixty (60) days prior to any other action.
When a record date is so fixed, then, subject to the provisions of the General
Corporation Law of Delaware, only stockholders of record at that date shall be
entitled to notice of and to vote at the meeting or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of any shares on the books of the Company after
the record date.
SECTION 2. Dividends. Subject to the provisions of the Restated Certificate
of Incorporation relating thereto, if any, dividends may be declared by the
Board of Directors at any regular or special meeting of the Board of Directors
pursuant to law. Dividends may be paid in cash, in property, or in shares of
capital stock, subject to any provisions of the Restated Certificate of
Incorporation.
SECTION 3. Reserves. Before payment of any dividend there may be set aside
out of any funds of the Company available for dividends such sum or sums as the
Board of Directors from time to time in their absolute discretion think
appropriate as a reserve fund to meet
14
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Company, or for such other purposes as the Board of Directors
shall think conducive to the interests of the Company, and the Board of
Directors may abolish any such reserve in the manner in which it was created.
SECTION 4. Annual Report. The Board of Directors shall cause an annual
report to be sent to the stockholders not later than one hundred twenty (120)
days after the close of each fiscal year of the Company and at least fifteen
(15) days prior to the annual meeting of stockholders to be held during the
ensuing fiscal year.
SECTION 5. Checks, Drafts and Notes. All checks, drafts and demands for
money and notes of the Company shall be signed by such individual or individuals
as the Board of Directors may from time to time designate.
SECTION 6. Representation of Shares of Other Corporations. The chief
executive officer or any other officer or officers authorized by the Board of
Directors or the President are each authorized to vote represent, and exercise
on behalf of the Company all rights incident to any and all shares of any other
corporation or corporations standing in the name of the Company. The authority
herein granted may be exercised either by any such officer in person or by any
other person authorized so to do by proxy or power of attorney duly executed by
said officer.
SECTION 7. Seal. The seal of the Company shall consist of a circle bearing
on its surface the inscription,
"Homestake Mining Company
Delaware
Incorporated November 28, 1983"
SECTION 8. Indemnification.
(a) Right of Indemnification. To the fullest extent permitted by the
------------------------
General Corporation Law of Delaware, the Company shall indemnify each
director and officer and may indemnify each employee or other agent of the
Company against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any action, suit or
proceeding arising by reason of the fact that any such person is or was a
director, officer, employee or other agent of the company or is or was
serving at the request of the Company as a director, officer, employee or
other agent of another corporation, partnership, joint venture, trust or
other enterprise.
(b) Advances of Expenses. Expenses incurred by an officer or director in
--------------------
defending a civil or criminal action, suit or proceeding arising by reason
of the fact that such director or officer is or was a director or officer
of the Company or was serving at the request of
15
the Company as a director, officer, employee or other agent of another
corporation, partnership, joint venture, trust or other enterprise shall be
paid by the Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced if it shall ultimately
be determined that such director or officer is not entitled to be
indemnified by the Company as authorized in this Section 8. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board
of Directors may, with the consent of such director, officer, employee or
other agent of the Company, authorize the legal counsel of the Company to
represent such person, in any action, suit or proceeding, whether or not
the Company is a part to such action, suit or proceeding.
(c) Procedure for Indemnification. Any indemnification or advance of
-----------------------------
expenses required hereunder shall be made promptly, and in any event within
sixty (60) days after a written request therefor by a director or officer.
The right to indemnification or advances as granted by this Section 8 shall
be enforceable by a director or officer in any court of competent
jurisdiction, if the Company denies such request, in whole or in part, or
if no disposition thereof is made within sixty (60) days. The director's or
officer's expenses incurred in connection with successfully establishing
his right to indemnification, in whole or in part, in any such action shall
also be indemnified by the Company. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of
expenses where the required undertaking, if any, has been received by the
Company) that the claimant has not met the standard of conduct required by
law, but the failure of the Company (including its Board of Directors, its
independent legal counsel and its stockholders) to have made a
determination as to whether indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct
shall not be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(d) Other Rights. The indemnification and advancement of expenses
------------
provided by or granted pursuant to this Section 8 shall not be deemed
exclusive of any other rights to which a person seeking indemnification may
be entitled under any law (common or statutory), agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
office. All rights to indemnification under this Section 8 shall be deemed
to be a contract between the Company and each director and officer who
serves or served in such capacity at any time while this Section 8 is in
effect, and any repeal or modification of this Section 8 or relevant
provision of the General Corporation Law of Delaware or any other
applicable law shall not in any way diminish any rights to indemnification
of such director or officer, or the obligations of the Company arising
hereunder prior to such modification or repeal.
16
(e) Insurance. The Company may, but shall not be required to, purchase
---------
and maintain insurance on behalf of any person who is or was a director or
officer of the Company against any liability asserted against such person
and incurred by him or on his behalf in such capacity or as a director,
officer, employee or other agent of another corporation, partnership, joint
venture, trust or other enterprise, for which such person is or was serving
at the request of the Company, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against
such liability under the provisions of this Section 8, all as the Board of
Directors may from time to time deem appropriate.
(f) Definitions. For purposes of this Section 8:
-----------
(i) service as a director, officer, employee or other agent of
any corporation, partnership, joint venture, trust or other
enterprise in which the Company, directly or indirectly, holds an
interest shall be deemed to be service at the request of the
Company;
(ii) "the Company" shall include in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers,
employees or other agents, so that any person who is or was a
director, officer, employee or other agent of such constituent
corporation, or is or was serving at the request of such
constituent corporation, as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under the
provision of this Section 8 with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued;
(iii) "other enterprise" shall include without limitation
employee benefit plans; "fines" shall include without limitation
any excise taxes assessed on a person with respect to an employee
benefit plan; and "serving at the request of the Company" shall
include without limitation any service as a director, officer,
employee or other agent of the Company which imposes duties on,
or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants
or beneficiaries;
(iv) the indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 8 shall, unless other
wise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person;
17
(v) "expenses" shall include all direct and indirect costs,
charges and attorneys' fees; and
(vi) "action, suit or proceeding" shall include any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and any appeal
therefrom.
(g) Effect of Advances. Advances of expenses by the Company as required
------------------
or authorized by this Section 8 shall not be deemed or interpreted as
ratifying, approving or condoning any act or omission by any director,
officer or employee of the Company in violation of standards of conduct
required by law.
(h) Savings Clause. If this Section 8 or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify each director and officer of the
Company as to expenses, judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding to the fullest extent
permitted by any applicable portion of this Section 8 that shall not have
been invalidated and to the fullest extent permitted by applicable law.
ARTICLE XV
AMENDMENT OF BYLAWS
These Bylaws may be amended or repealed, or new bylaws may be adopted, (a)
by the affirmative vote of the holders of a majority in voting power of the
shares of capital stock of the Company entitled to vote thereon or (b) by the
affirmative vote of the majority of the Board of Directors at any regular or
special meeting. Any Bylaw adopted or amended by the stockholders may be amended
or repealed by the Board of Directors.
18