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EXHIBIT 3.3
BYLAWS
OF
SUNSHINE MINING AND REFINING COMPANY
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle, and the name of its registered agent shall be The Corporation Trust
Company.
Section 1.2 Other offices. The corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meeting. All meetings of stockholders for the
election of directors shall be held at such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
Section 2.2 Annual Meeting. The annual meeting of stockholders shall be
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting.
Section 2.3 Voting List. The officer who has charge of the stock ledger
of the corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, 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 (10) 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 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 2.3 or the books of the corporation, or to vote in person or by proxy at
any meeting of stockholders.
Section 2.4 Special Meeting. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, the
President or by the Board of Directors or by written order of a majority of the
directors. The President or directors so calling any such meeting shall fix the
time and any place, either within or without the State of Delaware, as the place
for holding such meeting.
Section 2.5 Notice of Meeting. Written notice of each meeting of
stockholders, stating the place, date and hour of the meeting, and in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder
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entitled to vote thereat not less than ten (10) nor more than sixty (60) days
before the meeting.
Section 2.6 Quorum. The holders of a majority of the shares of capital
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at any meeting of stockholders
for the transaction of business, except as otherwise provided by statute or by
the Certificate of Incorporation. Notwithstanding the other provisions of these
bylaws, the holders of a majority of the shares of capital stock entitled to
vote thereat, present in person or represented by proxy, whether or not a quorum
is present, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might have
been transacted at the original meeting.
Section 2.7 Voting. When a quorum is present at any meeting of the
stockholders, the vote of the holders of a majority of the shares of capital
stock entitled to vote thereon, present in person or represented by proxy, shall
decide any question brought before such meeting, unless the question is one upon
which, by express provision of the statutes, of the Certificate of Incorporation
or of these bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder,
bearing a date not more than three years prior to voting, unless such instrument
provides for a longer period, and filed with the Secretary of the corporation
before, or at the time of, the meeting. If such instrument shall designate two
or more persons to act as proxies, unless such instrument shall provide to the
contrary, a majority of such persons present at any meeting at which their
powers thereunder are to be exercised shall have and may exercise all the powers
of voting or giving consents thereby conferred, or if only one be present, then
such powers may be exercised by that one, or, if an even number attend and a
majority do not agree on any particular issue, each proxy so attending shall be
entitled to exercise such powers in respect of the shares proportionately.
Section 2.8 Consent of Stockholders. Any action required by statute 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
required by statute, the Certificate of Incorporation or these bylaws to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted; provided, however, that 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.
Section 2.9 Voting of Stock of Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the bylaws of such corporation may prescribe, or in the
absence of such provision, as the Board of Directors or a duly authorized
managing director of such corporation may determine. Shares standing in the name
of a deceased person may be voted by the executor or administrator of such
deceased person, either in person or by proxy. Shares standing in the name of a
guardian, conservator or trustee may be voted by such fiduciary, either in
person or by proxy, but no such fiduciary shall be entitled to vote shares held
in such fiduciary capacity without a transfer of such shares into the name of
such fiduciary. Shares standing
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in the name of a receiver may be voted by such receiver. A stockholder whose
shares are pledged shall be entitled to vote such shares, unless in the transfer
by the pledgor on the books of the corporation he has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent the stock and vote thereon.
Section 2.10 Treasury Stock. The corporation shall not vote, directly
or indirectly, shares of its own stock owned by it; and such shares shall not be
counted in determining the total number of issued and outstanding shares for the
purposes of determining the presence of a quorum at any meeting of stockholders.
Section 2.11 Fixing Record Date. In order that the corporation may
determine 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 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 more than sixty (60) nor less than
ten (10) days before the date of such meeting no more than sixty (60) days prior
to any other action, for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting 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 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. If the Board
of Directors fix, in advance, a record date as herein provided, then, in such
case, such stockholders, and only such stockholders, as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
any such meeting 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 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, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record date is fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 Powers. The business and affairs of the corporation shall
be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
bylaws directed or required to be exercised or done by the stockholders.
Section 3.2 Number, Selection and Term. The number of directors which
shall constitute the whole Board shall from time to time be fixed and determined
by resolution adopted by the Board of Directors. The number to be elected at any
meeting of stockholders shall be set forth in the notice of any meeting of
stockholders held for such purpose. The directors shall be elected at the annual
meeting of stockholders, except as provided in Section 3.3, and each director
elected shall hold office until his successor shall be elected and shall
qualify, or until his earlier death, resignation, retirement, disqualification
or removal. Directors need not be residents of Delaware or stockholders of the
corporation.
Section 3.3 Vacancies, Additional Directors and Removal From Office. If
any vacancy occurs in the Board of Directors caused by the death, resignation,
retirement, disqualification or removal from office of any director, or
otherwise, or if any new directorship is created by an increase in the
authorized number of directors, a majority of the
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directors then in office, though less than a quorum, or a sole remaining
director, may choose a successor to fill such vacancy or the newly created
directorship, and a director so chosen shall hold office for a term that shall
coincide with the term of the class, if any, to which such director shall have
been elected and until his successor is duly elected and qualified, or until his
earlier resignation or removal. Any director may be removed, with or without
cause, by the holders of a majority of the shares then entitled to vote at an
election of directors at any special meeting of stockholders duly called and
held for such purpose.
Section 3.4 Resignation. Any director may resign at any time by written
notice to the corporation. Any such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Any director who does not, for any reason
whatsoever, stand for election at any meeting of stockholders called for such
purpose shall be conclusively deemed to have resigned, effective as of the date
of such meeting, for the purposes of these bylaws, and the corporation need not
receive any written notice to evidence such resignation.
Section 3.5 Regular Meeting. A regular meeting of the Board of
Directors shall be held each year, without other notice then this bylaw, at the
place of, and immediately following, the annual meeting of stockholders, and
other regular meetings of the Board of Directors shall be held each year, at
such time and place as the Board of Directors may provide, by resolution, either
within or without the State of Delaware, without other notice than such
resolution.
Section 3.6 Special Meeting. A special meeting of the Board of
Directors may be called by the Chairman of the Board or by the President. The
Chairman or President so calling any such meeting shall fix the time and any
place, either within or without the State of Delaware, as the place for holding
such meeting.
Section 3.7 Notice of Special Meeting. Written notice of special
meetings of the Board of Directors shall be given to each director at least
forty-eight (48) hours prior to the time of such meeting. Any director may waive
notice of any meeting. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting solely for the purpose of objecting 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 special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting,
except that notice shall be given with respect to any matter to be acted upon at
such special meeting where notice is required by statute.
Section 3.8 Quorum. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, and the act of a majority of the directors present at any meeting
at which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute, by the Certificate of
Incorporation or by these bylaws. If a quorum shall not be present at any
meeting of the Board of Directors, a majority of the directors present thereat,
though less than a quorum, may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 3.9 Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof as provided in Article IV of these bylaws, may be taken without a
meeting, if a written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board or committee.
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Section 3.10 Compensation. Directors, as such, shall not be entitled to
any stated salary for their services unless voted by the stockholders or the
Board of Directors; but by resolution of the Board of Directors, a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each regular or
special meeting of the Board of Directors or any meeting of a committee of
directors. No provision of these bylaws shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
Section 4.1 Designation, Powers and Name. The Board of Directors may,
by resolution passed by a majority of the whole Board, designate one or more
committees, including, if they shall so determine, an Executive Committee, each
such committee to consist of two or more of the directors of the corporation.
The committee shall have and may exercise such of the powers of the Board of
Directors in the management of the business and affairs of the corporation as
may be provided in such resolution, provided, however, that no such committee
shall have the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
bylaws of the corporation; and, provided further, that, unless the resolution
establishing the committee expressly so provides, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. The committee may authorize the seal of the corporation to be affixed to
all papers which may require it. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting.
Section 4.2 Minutes. Each committee of directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
Section 4.3 Compensation. Members of special or standing committees may
be allowed compensation for attending committee meetings, if the Board of
Directors shall so determine.
ARTICLE V
NOTICE
Section 5.1 Methods of Giving Notice. Whenever under the provisions of
any statute, the Certificate of Incorporation or these bylaws notice is required
to be given to any director, member of any committee or stockholder, such notice
shall be in writing and delivered personally or mailed to such director, member
or stockholder; provided, however, that in the case of a director or a member of
any committee, such notice, unless required by statute, the Certificate of
Incorporation or these bylaws to be in writing, may be given orally or by
telephone or telegram. If mailed, notice to a director, member of a committee or
stockholder shall be deemed to be given when deposited in the United States mail
first class in a sealed envelope, with postage thereon prepaid, addressed, in
the case of a stockholder,
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to the stockholder at the stockholder's address as it appears on the records of
the corporation or, in the case of a director or a member of a committee, to
such person at his business address. If sent by telegraph, notice to a director
or member of a committee shall be deemed to be given when the telegram, so
addressed, is delivered to the telegraph company.
Section 5.2 Written Waiver. Whenever any notice is required to be given
under the provisions of any statute, the Certificate of Incorporation or these
bylaws, 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.
ARTICLE VI
OFFICERS
Section 6.1 Officers. The officers of the corporation shall be a
Chairman of the Board (who may be designated the Chief Executive Officer or the
Chief Operating Officer) and a Vice Chairman of the Board (if such office be
created by resolution adopted by the Board), a President (who may also be
designated the Chief Executive Officer or the Chief Operating Officer), one or
more Vice Presidents (any one or more of whom may be designated Executive Vice
President or the Senior Vice President and any one of whom may also be
designated as the Chief Operating Officer or the Chief Financial Officer), a
Secretary and a Treasurer. The Board of Directors may by resolution create the
office of Vice Chairman of the Board and define the duties of such office. The
Board of Directors may appoint such other officers and agents, including
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined by the
Board. Any two or more offices, other than the offices of President and
Secretary, may be held by the same person. No officer shall execute,
acknowledge, verify or countersign any instrument on behalf of the corporation
in more than one capacity, if such instrument is required by law, by these
bylaws or by any act of the corporation to be executed, acknowledged, verified
or countersigned by two or more officers. The Chairman and Vice Chairman of the
Board and the President shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and none of
the officers need be a stockholder of the corporation.
Section 6.2 Election and Term of Office. The officers of the
corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently practicable. Each officer shall hold office until his
successor shall have been elected or appointed and shall have qualified or until
his death or the effective date of his resignation or removal, or until he shall
cease to be a director in the case of the Chairman and Vice Chairman of the
Board or the President.
Section 6.3 Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein, and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 6.4 Vacancies. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
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Section 6.5 Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
Section 6.6 Chairman of the Board. The Chairman of the Board (who may
also hold the office of President or other offices) shall preside at all
meetings of the Board of Directors or of the stockholders of the corporation. In
the Chairman's absence, such duties shall be attended to by the Vice Chairman of
the Board or the President. The Chairman shall formulate and submit to the Board
of Directors or the Executive Committee matters of general policy for the
corporation and shall perform such other duties as usually appertain to the
office and such other duties as may be prescribed by the stockholders, the Board
of Directors or the Executive Committee from time to time. If the Chairman be so
designated, he shall also serve as the Chief Executive Officer of the
corporation and shall perform such other duties exercise such other powers as
usually appertain to such title, including, without limitation, the power to
appoint and remove subordinate officers, agents and employees, including
Assistant Secretaries and Assistant Treasurers, except that the Chairman may not
remove those elected or appointed by the Board of Directors. The Chairman of the
Board may sign, with the Secretary or any other officer of the corporation
thereunto authorized by the Board of Directors, certificates for shares of the
corporation and any deed, bonds, mortgages, contracts, checks, notes, drafts or
other instruments the issue or execution of which shall have been authorized by
resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these bylaws or by the Board
of Directors to some other officer or agent of the corporation, or shall be
required by law to be otherwise executed.
Section 6.7 President. In the absence of the Chairman of the Board or
the Vice Chairman of the Board (if such office be created by the Board), or in
the event of their inability or refusal to act, the President shall preside at
all meetings of the Board of Directors and of the stockholders. The President
may also preside at any such meeting attended by the Chairman or Vice Chairman
of the Board if so designated by the Chairman, or in the Chairman's absence, by
the Vice Chairman. If the President be designated as the Chief Executive Officer
of the corporation, the President shall perform such duties and exercise such
powers as usually appertain to such title and such other duties as may be
prescribed by the stockholders, the Board of Directors or the Executive
Committee from time to time. The President, if designated as the Chief Executive
Officer of the corporation, shall have the power to appoint and remove
subordinate officers, agents and employees, including Assistant Secretaries and
Assistant Treasurers, except that the President may not remove those elected or
appointed by the Board of Directors. The President shall keep the Board of
Directors and the Executive Committee fully informed and shall consult them
concerning the business of the corporation. The President may sign, with the
Secretary or any other officer of the corporation thereunto authorized by the
Board of Directors, certificates for shares of the corporation and any deeds,
bonds, mortgages, contracts, checks, notes, drafts or other instruments the
issue or execution of which shall have been authorized by resolution of the
Board of Directors, except in cases where the signing and execution thereof has
been expressly delegated by these bylaws or by the Board of Directors to some
other officer or agent of the corporation, or shall be required by law to be
otherwise executed. The President shall vote, or give a proxy to any other
officer of the corporation to vote, all shares of stock of any other corporation
standing in the name of the corporation. In general, the President shall perform
all other duties normally incident to or as usually appertain to the office of
the President and such other duties as may be prescribed by the stockholders,
the Board of Directors of the Executive Committee from time to time.
Section 6.8 Vice Presidents. In the absence of the President, or in the
event of his inability or refusal to act, the Executive Vice President (or in
the event there shall be no Vice President designated Executive Vice President,
any Vice President designated by the Board)
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shall perform the duties and exercise the powers of the President. Any Vice
President may sign, with the Secretary or Assistant Secretary, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments the issue or execution of which shall have
been authorized by resolution of the Board of Directors, except in cases where
the signing and execution thereof has been expressly delegated by these bylaws
or by the Board of Directors to some other officer or agent of the corporation,
or shall be required by law to be otherwise executed. The Vice Presidents shall
perform such other duties as from time to time may be assigned to them by the
Chairman of the Board, the President, the Board of Directors or the Executive
Committee.
Section 6.9 Secretary. The Secretary shall (a) record the proceedings
of the meetings of the stockholders, the Board of Directors and committees of
directors in the permanent minute books of the corporation kept for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these bylaws and as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, and see that the seal of
the corporation or a facsimile thereof is affixed to all certificates for shares
of the corporation prior to the issue thereof and to all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized in accordance with the provisions of these bylaws; (d) keep or cause
to be kept a register of the post office address of each stockholder which shall
be furnished by such stockholder; (e) sign with the Chairman of the Board, the
President, or an Executive Vice President or Vice President, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments the issue or execution of which shall have
been authorized by resolution of the Board of Directors, except in cases where
the signing and execution thereof has been expressly delegated by these bylaws
or by the Board of Directors to some other officer or agent of the corporation,
or shall be required by law to be otherwise executed; (f) have general charge of
the stock transfer books of the corporation; and (g) in general, perform all
duties normally incident to the office of Secretary and such other duties as
from time to time may be assigned by the Chairman of the Board, the President,
the Board of Directors or the Executive Committee.
Section 6.10 Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her duties in
such sum and with such surety or sureties as the Board of Directors shall
determine. The Treasurer shall (a) have charge and custody of and be responsible
for all funds and securities of the corporation; receive and give receipts for
moneys due and payable to the corporation from any source whatsoever and deposit
all such moneys in the name of the corporation in such banks, trust companies or
other depositories as shall be selected in accordance with the provisions of
Section 7.3 of these bylaws; (b) prepare, or cause to be prepared, for
submission at each regular meeting of the Board of Directors, at each annual
meeting of the stockholders, and at such other times as may be required by the
Board of Directors, the Chairman of the Board, the President or the Executive
Committee, a statement of financial condition of the corporation in such detail
as may be required; (c) sign with the Chairman of the Board, the President, or
an Executive Vice President or Vice President, certificates for shares of the
corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts or
other instruments the issue or execution of which shall have been authorized by
resolution of the Board of Directors, except in cases where the signing and
execution thereof has been expressly delegated by these bylaws or by the Board
of Directors to some other officer or agent of the corporation, or shall be
required by law to be otherwise executed, and (d) in general, perform all the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned by the Chairman of the Board, the President, the Board of
Directors or the Executive Committee.
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Section 6.11 Assistant Secretary or Treasurer. The Assistant
Secretaries and Assistant Treasurers shall, in general, perform such duties as
shall be assigned to them by the Secretary or the Treasurer, respectively, or by
the Chairman of the Board, the President, the Board of Directors or the
Executive Committee. The Assistant Secretaries and Assistant Treasurers shall,
in the absence of the Secretary or Treasurer, respectively, or in their
respective inability or refusal to act, perform all functions and duties which
such absent officers may delegate, but such delegation shall not relieve the
absent officer from the responsibilities and liabilities of their office. The
Assistant Secretaries may sign, with the Chairman of the Board, the President or
Executive Vice President, certificates for shares of the corporation and any
deeds, bonds, mortgages, contracts, checks, notes, drafts or other instruments
the issue or execution of which shall have been authorized by a resolution of
the Board of Directors, except in cases where the signing and execution thereof
has been expressly delegated by these bylaws or by the Board of Directors to
some other officer or agent of the corporation, or shall be required by law to
be otherwise executed. The Assistant Treasurers shall respectively, if required
by the Board of Directors, give bonds for the faithful discharge of their duties
in such sums and with such sureties as the Board of Directors shall determine.
Section 6.12 General Counsel. The General Counsel shall be the chief
legal officer of the corporation; shall advise the Board of Directors and
officers on all legal matters, and shall perform such other additional duties as
may be assigned to him by the Board of Directors, Chairman or Chief Executive
Officer.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
Section 7.1 Contracts. Subject to the provisions of Section 6.1, the
Board of Directors may authorize any officer, officers, agent or agents, to
enter into any contract or execute and deliver any instrument for and in the
name of and on behalf of the corporation, and such authority may be general or
confined to specific instances.
Section 7.2 Checks, etc. All checks, demands, 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 or such
agent or agents of the corporation, and in such manner, as shall be determined
by the Board of Directors.
Section 7.3 Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1 Insurance. Each stockholder of this corporation shall be
entitled to a certificate or certificates showing the number of shares of stock
registered in such stockholder's name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name and
number of shares and shall be signed by the Chairman of the Board, the President
or a Vice President and by the Secretary or an Assistant Secretary. Any or all
the signatures on the certificate may be a facsimile. If the corporation shall
be authorized to issue more than one class of stock or more than one series of
any class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock
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or series thereof and the qualifications, limitations or restrictions of such
preferences and rights shall be set forth in full or summarized on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock; provided, however, that, except as otherwise provided
by statute, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the corporation shall issue to represent
such class or series of stock, a statement that the corporation will furnish
without charge to each stockholder who so requests a copy of the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. All certificates
surrendered to the corporation for transfer shall be canceled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and canceled, except that in the case of a
lost, stolen, destroyed or mutilated certificate a new one may be issued
therefor upon such terms and with such indemnity, if any, to the corporation as
the Board of Directors may prescribe. Certificates shall not be issued
representing fractional shares of stock.
Section 8.2 Lost Certificates. The corporation may issue a new
certificate or certificates in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. The corporation may in
its discretion and a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
or to give the corporation a bond sufficient to indemnify it against any claim
that may be made against the corporation with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed or the issuance of
such new certificate.
Section 8.3 Transfers. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the corporation by the registered holder thereof, or by such holder's
attorney thereunto authorized by power of attorney and filed with the Secretary
of the corporation or the transfer agent.
Section 8.4 Registered Stockholders. The corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
ARTICLE IX
DIVIDENDS
Section 9.1 Declaration. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 9.2 Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies or for equalizing
dividends, or for repairing or maintaining any
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property of the corporation, or for such other purpose as the Board of Directors
shall think conducive to the interests of the corporation, and the Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
Section 10.1 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 contenders 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.
Section 10.2 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.
Section 10.3 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 (1) and (2) of this Article X, 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.
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Section 10.4. Authorization. Any indemnification under Sections (1) and
(2) of this Article X (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 (1) and (2) of this Article X. 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 (4) 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.
Section 10.5 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 10.4 of this
Article X 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 X.
Section 10.6 Non-Exclusivity. The indemnification provided by this
Article X 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.
Section 10.7 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 person's
status as such, whether or not the corporation would have the power to indemnify
such person against such liability.
Section 10.8 "Corporation" Defined. For purposes of this Article X,
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 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 X 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.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 Seal. The corporate seal shall have inscribed thereon the
name of the corporation, and the words "Corporate Seal, Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
Section 11.2 Books. The books of the corporation may be kept (subject
to any provision contained in the statutes) outside the State of Delaware at the
offices of the corporation at Dallas, Texas, or at such other place or places as
may be designated from time to time by the Board of Directors.
ARTICLE XII
AMENDMENT
These, bylaws may be altered, amended or repealed at any regular or
special meeting of the Board of Directors, without prior notice, by resolution
adopted thereat.
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