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EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
of
SUNSHINE MINING AND REFINING COMPANY
(a Delaware Corporation)
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ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of, the Corporation by the Chairman or Vice-Chairman of the board of directors
of the Corporation (the "Board"), if any, or by the President or Vice-President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Corporation certifying the number of shares owned by him in the
Corporation. Any and all signatures on any such certificate may be facsimiles.
In case 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,
such certificate may be issued by the Corporation with the same effect as if
such person were such officer, transfer agent, or registrar at the date of
issue.
Whenever the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock and
whenever the Corporation shall issue any shares of its stock as partly paid
stock, the certificate representing shares of any such class or series or of any
such partly paid stock shall set forth thereon the statements prescribed by the
Delaware General Corporation Law. Any restrictions on the transfer or
registration of transfer of any shares of stock of any class or series shall be
noted conspicuously on the certificate representing such shares.
The Corporation may issue a new certificate of stock in place
of any certificate therefore issued by it, alleged to have been lost, stolen or
destroyed, and the Board may require the owner of any lost, stolen, or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or destruction of any such
certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The Corporation may, but shall not be
required to, issue fractions of a share. If the Corporation does not issue
fractions of a share, it shall (1) arrange for the disposition of fractional
interests by those entitled thereto, (2) pay in
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cash the fair value of fractions of a share as of the time when those entitled
to receive such fractions are determined, or (3) issue scrip or warrants in
registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share shall, but scrip
or warrants shall not unless otherwise provided therein, entitle the holder to
exercise voting rights, to receive dividends thereon, and to participate in any
of the assets of the Corporation in the event of liquidation, in each case to
the extent of such fraction. The Board may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing full shares before a specified date, or subject to the
conditions that the shares for which scrip or warrants are exchangeable may be
sold by the Corporation and the proceeds thereof distributed to the holders of
scrip or warrants, or subject to any other conditions which the Board may
impose.
3. STOCK TRANSFERS. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, transfers or
registration of transfers of shares of stock of the Corporation shall be made
only on the stock ledger of the Corporation by the registered holder thereof, or
by his attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Corporation or with a transfer agent or a
registrar, if any, and on surrender of the certificate or certificates for such
shares of stock properly endorsed and the payment of all taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or the 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 may fix, in advance, a record date, which
shall not be more than sixty days nor less than 10 days before the date of such
meeting, nor more than sixty days prior to any other action. 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
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board is necessary, shall be the day on which the first written consent is
express; and the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto. A determination of stockholders of record entitled
to notice of or to vote at any meeting of stockholders all apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of stockholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "share of stock" or "shares of
stock" or "stockholder" or "stockholders" refers to an outstanding share or
shares of stock and to a holder or holders of record of outstanding shares of
stock when the Corporation has only one class of shares of stock outstanding,
and said reference is also intended to include any outstanding share or shares
of stock and any holder or holders of
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record of outstanding shares of stock of any class upon which or upon whom the
certificate of incorporation of the Corporation (the "Certificate of
Incorporation") confers such rights where there are two or more classes or
series of shares of stock or upon which or upon whom the Delaware General
Corporation Law confers such rights notwithstanding that the Certificate of
Incorporation may provide for more than one class or series of shares of stock,
one or more of which are limited or denied such rights thereunder.
6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the Board, provided, that the first annual
meeting shall be held on a date within thirteen months after the organization of
the Corporation, and each successive annual meeting shall be held on a date
within thirteen months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the Board.
(b) PLACE. Annual meetings and special meetings shall be held
at such place, within or without the State of Delaware, as the Board may, from
time to time, fix. Whenever, the director shall fail to fix such place, the
meeting shall be held at the registered office of the Corporation in the State
of Delaware.
(c) CALL. Annual meetings and special meetings may be called
by the Board or by any officer instructed by the Board to call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating the
place within the city or other municipality or community at which the list of
stockholders of the Corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting) state the purpose or purposes of the meeting. The
notice of a special meeting shall in all instances state the purpose or purposes
for which the meeting is to be called. The notice of any meeting shall also
include, or be accompanied by, any additional statements, information, or
documents provided by the Delaware General Corporation Law. Except as otherwise
provided by the Delaware General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time, shall have been waived, and directed to each
stockbroker at his record address or at such other address which he may have
furnished by requested in writing to the Secretary of the Corporation. Notice by
mail shall be deemed to be given when deposited, with postage thereon prepaid,
in the United States Mail. If a meeting is adjourned to another time, not more
than thirty days hence, and/or to another place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board, after adjournment, fix a
new record date for the adjourned meeting. Notice need not be given to any
stockholder who submits a written waiver of notice signed by him before or after
the time stated therein. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver or notice of such meeting, except when
the stockholder attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
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meeting is not lawfully called or convened. Neither the business to be
transacted at, not the purpose or purposes of, any regular or special meeting of
the stockholders need to be specified in any written waiver of notice.
(e) STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, 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 or otherwise municipality or
community where the meeting is to be held, 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
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by this section or the books of the Corporation, or to vote at any meeting of
stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting; the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, the President, a Vice-President, if any, or, if none of the
foregoing is in office and present and acting, by a Chairman to be chosen by the
stockholders. The Secretary of the Corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if nether neither the
Secretary nor an Assistant Secretary is present the Chairman of the meeting
shall appoint a secretary of the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provided for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with
which it is coupled is an interest in the stock itself or an interest in the
Corporation generally.
(h) INSPECTORS. The Board, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting of
any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the Board in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting
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power of each, the shares of stock represented at the meeting, existence of a
quorum, the validity and effect of proxies, and shall receive votes , ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as a re proper to conduct the election or
vote with fairness to all stockholders. On request of the person presiding at
the meeting, the inspector or inspectors, if any, shall make a report in writing
of any challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
(i) QUORUM. The holders of a majority of the outstanding
shares of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
(j) VOTING. Each share of stock shall entitle the holder
thereof to one vote. In the election of directors, a plurality of the votes cast
shall elect. Any other action shall be authorized by a majority of the votes
cast except where the Delaware General Corporation Law prescribes a different
percentage of votes and/or a different exercise of voting power, and except as
may be otherwise prescribed by the provisions of the Certificate of
Incorporation or these By-Laws. In the election of directors, and for any other
action, voting need not be by ballot.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the
Delaware General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
Corporation shall be managed by or under the direction of the Board. The Board
shall have the authority to fix the compensation of the members thereof. The use
of the phrase "whole Board" herein refers to the total number of directors which
the Corporation would have if there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, or
a citizen or resident of the United States or the State of Delaware. The Board
shall consist of five (5) persons.
3. CLASSIFICATION. The Board shall be classified as provided in Article
VI of the Certificate of Incorporation.
4. ELECTION AND TERM. The members of the Board shall be elected for the
terms set forth in Article VI of the Certificate of Incorporation.
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5. MEETINGS.
(a) TIME. Meetings shall be held at such time as the Board
shall fix, except that the first meeting of a newly elected Board shall be held
as soon after its election as the directors may conveniently assemble.
(b) PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
(c) CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, or the President, or of a majority of the directors in office.
(d) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall
be required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time for the meeting stated herein. Attendance of any such
person at a meeting shall constitute a waiver of notice of such meeting, except
when he attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors need be specified in
any written waiver of notice.
(e) QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except as otherwise provided
herein or in the Certificate of Incorporation and except as otherwise provided
by the Delaware General Corporation Law, 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. The quorum and voting provisions herein stated shall not be construed
as conflicting with any provisions of the Delaware General Corporation Law and
these By-Laws which govern a meeting of directors held to fill vacancies and
newly created directorships in the Board of action of disinterested directors.
(f) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
6. COMMITTEES. The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of one
or more of the 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
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of the committee. In the absence or disqualification of any member of any such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board, shall have and may exercise the
powers and authority of the Board in the management of the business and affairs
of the Corporation with exception of any authority the delegation of which is
prohibited by section 141 of the Delaware General Corporation Law, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it.
7. WRITTEN ACTION. Any action required or permitted to be taken at any
meeting of the Board or any committee thereof may be taken without a meeting if
all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
8. ELECTRONIC COMMUNICATION. Any member or members of the Board or of
any committee designated by the Board, may participate in a meeting of the
Board, or any such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
ARTICLE III
OFFICERS
The officers of the Corporation shall consist of a President
and a Secretary, and may include, by election or appointment, one or more Vice
Presidents (any one or more of whom may be given an additional designation of
rank or function), a Treasurer and such Assistant Secretaries, such Assistant
Treasurers and such other officers with such titles as the resolution of the
Board choosing them shall designate. Except as may otherwise be provided in the
resolution of the Board choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of the
Board following the next annual meeting of stockholders and until his successor
shall have been chosen and qualified. Any officer may be removed with or without
cause by the Board. Any vacancy in any office may be filled by the Board.
All officers of the Corporation shall have such authority and
perform such duties in the management and operation of the Corporation as may be
prescribed in the resolutions of the Board designating and choosing such
officers or prescribing the authority and duties of the various officers of the
Corporation, and as are customarily incident to their office, except to the
extent that such resolutions may be inconsistent therewith. The Secretary shall
keep or cause to be kept in the corporate minute books the minutes of the
meetings of the stockholders, the Board, and all committees created by the Board
and shall have such other powers and authority which ordinarily are inherent in
such office in addition to those which the Board may from time to time
prescribe. The Treasurer shall have charge and custody of, and be responsible
for, all funds and
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securities of the Corporation and shall have such other powers and authority
which ordinarily are inherent in such office in addition to those which the
Board from time to time may prescribe.
ARTICLE IV
BOOKS AND RECORDS
The Corporation shall keep correct and complete books and
records of account and shall keep minutes of the proceedings of the
shareholders, of the Board, and of any committee which the Board may appoint.
ARTICLE V
INDEMNIFICATION
(a) To the fullest extent permitted by the Delaware General
Corporation Law, as it now exists or may hereafter be amended, a director or
officer of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director or
officer, except to the extent that such exemption from liability or limitation
thereof is not permitted under the Delaware General Corporation Law as the same
exists or may hereafter be amended. Any repeal or modification of this paragraph
by the stockholders of the Corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a director or
officer of the Corporation existing at the time of such repeal or modification.
(b) To the fullest extent permitted by Section 145 of the DGCL
or any successor provisions thereto, (i) the Corporation shall (A) indemnify any
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit or proceeding (a "proceeding"),
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation, against
expenses (including reasonable attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding and (B) pay, upon receipt of any
undertaking to repay amounts advanced required by the DGCL, expenses incurred by
such person in defending a civil or criminal action, suit or proceeding in
advance of the final disposition of such action, suit or proceeding, and (ii)
the Corporation may (A) indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was an employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding and (B) pay expenses incurred by such person in
defending a civil or criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding. Notwithstanding clause (i)(A) of
the preceding sentence, the Corporation shall be required to indemnify an
indemnitee in connection with a proceeding (or part thereof) commenced by such
indemnitee only if the commencement of such proceeding (or part thereof) by the
indemnitee was authorized by the Board of Directors of the Corporation. The
foregoing indemnification and advancement of expenses provisions shall not be
deemed
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exclusive of any other rights to indemnification or advancement of expenses to
which any such person may be entitled under any statute, by-law, agreement, vote
of stockholders or disinterested directors or otherwise and are deemed to be
contract rights with respect to each person entitled to the benefits of such new
provisions. Any change in law that purports to restrict the ability of the
Corporation to indemnify or advance expenses to any such person shall not affect
the Corporation's obligation or right to indemnify and advance expenses to any
such person with respect to any action, claim, suit or proceeding that occurred
or arose or that is based on events or acts that occurred or arose, prior to
such change in law.
(c) Third Party Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe such person's conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
(d) Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in the Corporation's favor by reason of the
fact that such person is or was a director, trustee, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to amounts paid in settlement, the settlement of
the suit or action was in the best interests of the Corporation, provided,
however, that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for gross
negligence or willful misconduct in the performance of such person's duty to the
Corporation unless and only to the extent that, the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability, but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as such court shall deem proper. The termination of any action or suit
by judgment or settlement shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the Corporation.
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(e) Successful Defense. To the extent that a director,
trustee, officer, employee or agent of the Corporation has been successful on
the merits or otherwise, in whole or in part, in defense of any action, suit or
proceeding referred to in Sections (c) and (d) of this Article V, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(f) Authorization. Any indemnification under Sections (c) and
(d) of this Article V (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, trustee, officer, employee or agent is proper
in the circumstances because such person has met the applicable standard of
conduct set forth above in Sections (c) and (d) of this Article V. Such
determination shall be made (a) by the Board of Directors of the Corporation by
a majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not obtainable, by a
majority vote of directors who were not parties to such action, suit or
proceeding, or (c) by independent legal counsel (selected by one or more of the
directors, whether or not a quorum and whether or not disinterested) in a
written opinion, or (d) by the shareholders. Anyone making such a determination
under this Section (f) may determine that a person has met the standard therein
set forth as to some claims, issues or matters but not as to others, and may
reasonably prorate amounts to be paid as indemnification.
(g) Advances. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation, at any
time or from time to time in advance of the final disposition of such action,
suit or proceeding as authorized in the manner provided in Section (f) of this
Article V upon receipt of an undertaking by or on behalf of the director,
trustee, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
Corporation as authorized in this Article V.
(h) Non-Exclusivity. The indemnification provided by this
Article V shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any law, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, and shall continue as to a person who has ceased to be a director,
trustee, officer, employee or agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
(i) Insurance. The Corporation shall have the powers to
purchase and maintain insurance on behalf of any person who is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, trustee, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against any liability asserted against such person and
incurred by such person in any such capacity or arising out of such persons'
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability.
(j) "Corporation" Defined. For purposes of this Article V,
references to the "Corporation" shall include, in addition to the Corporation,
any constituent Corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its
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separate existence had continued, would have had power and authority to
indemnify its directors, trustees, officers, employees or agents, so that any
person who is or was a director, trustee, officer, employee or agent of such
constituent corporation or of any entity a majority of the voting stock of which
is owned by such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, trustee, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article V with
respect to the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had continued.
ARTICLE VI
CORPORATE SEAL
The corporate seal shall be in such form as the Board shall
prescribe.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board.
ARTICLE VIII
CONTROL OVER BY-LAWS
Subject to the provisions of the Certificate of Incorporation
and the provisions of the Delaware General Corporation Law, the power to amend,
alter or repeal these By-Laws and to adopt new By-Laws may be exercised by the
Board or by the stockholders.
Duly Adopted this February 9, 2001.
/s/ John Simko
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John Simko
Chairman of the Board
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